How to recover outstanding debts

Usually, a debt must be recovered within six years of the debt accruing

In order for a business or company to survive or become profitable, it is essential that any outstanding debts of the business are recovered.

Farmers are no exception to this, and should have systems in place to ensure debts are paid up to date.

It is recommended if you are a farmer, an agricultural contractor, or a farming enterprise, that you have a system in place for debt recovery.

It is very important to have a written record of all transactions.

If produce, machinery or services have been sold or provided, an invoice should be issued immediately after the sale or services have been carried out.

It may be helpful to provide a written quotation to the debtor, before the transaction or services takes place.

It is preferable to have a written paper trail rather than an oral agreement, while trying to recover a debt, and it is advisable to engage in proper record keeping.

When initially trying to recover the debt, you should engage with the debtor by whatever means necessary in an attempt to recover payment.

The most common methods would be either by the telephone or by email or writing to the debtor.

The debt recovery process will be smoother if you communicate with the debtor, and we would recommend you never use unlawful means, such as harassment, threats, or intimidation, to force the debtor to pay the debt.

If you have exhausted all avenues, and the debtor is not co-operating, you may wish to consider taking legal action, or initially threatening legal action, with a view to having the debt paid.

In order to do so, you should engage or consult with a solicitor.

Once a solicitor is instructed, they can advise you of your potential options.

An initial demand letter would normally be sent to the debtor, asking that the debt is paid within a time frame, or court proceedings will be issued.

If the debt is under €15,000, it is normally in the District Court, and above that, in the Circuit Court.

If the debt is over €75,000, it will be a High Court matter.

There are time limits on bringing debt claims, as set out in the Statute of Limitations Act, 1957.

Usually, a debt must be recovered within six years of the debt accruing.

The purpose of the court proceedings is normally to try and get a judgment for the debt owed, from the court.

The debtor is entitled however to defend the proceedings. If the matter is defended, it is possible it will proceed to a court hearing, unless a settlement can be reached.

If you are successful in obtaining a judgment, the next stage is enforcing it.

This main methods of enforcement are:

  • Instalment orders following by committal orders
  • Execution against goods
  • Attachment of earnings
  • Judgement mortgages

In respect of the execution of goods, it will normally be sent to the Sheriff or County Registrar to enforce the judgement.

They can seize property or goods in order to execute the judgement.

One of the most common enforcements procedures is an instalment order.

This normally allows for a debt to be paid in instalments.

If the debtor has difficulty paying the debt, they may be required to provide a statement of means which sets out all their assets, income, liabilities, and expenses and will show their net worth.

This assists the parties and the court in ascertaining what a viable payment structure would be.

In the event that such an order is breached, there is a possibility of applying for a committal order under the Enforcement of Courts Order (Amendment) Act, 2009.

If a judgement is obtained against the debtor, the creditor may register a charge against property that the debtor owns.

This is known as a judgement mortgage.

This is the equivalent of a mortgage and can be registered as a burden on the folio, in respect of the debtor’s lands.

If there is an outstanding debt on your books, you should take steps to recover the debt yourself.

If the debtor is not co-operating, you should consult a solicitor, and obtain legal advice, as you may need to bring court proceedings to recover the debt.

- Karen Walsh, from a farming background, is a solicitor practicing in Walsh & Partners, Solicitors, 17, South Mall, Cork (021-4270200), and author of ‘Farming and the Law’. Walsh & Partners also specialises in personal injury claims, conveyancing, probate and family law.

Email: info@walshandpartners.ie; Web: www.walshandpartners.ie

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