Common mistake made by Litigants in Person

Published 7 April 2022

A common mistake made by Litigants in Person is to put the wrong name of the debtor on a county court judgment and writ of control. When it is not correct the writ may prove difficult to enforce.

Over the years Quality Bailiffs has enforced thousands of Writs of Control to collect unpaid county court judgments for litigants in person. We have noticed that over the past 5 years this has increased significantly.

Litigant in Person

A ‘litigant in person’ is defined as an unrepresented party (either an individual, company or organisation) or a self-represented party. This means they do not use the services of a solicitor or barrister for their case.

We assume this is to try and cut down on costs and of course even if a claim is successful, it often does not cover all the solicitor fees.

Her Majesty’s Courts and Tribunals Service (HMCTS) has launched money claims online and that makes it relatively easy to issue a claim and deal with an uncontested claim.

Of course, contested claims can be complicated and often litigants in person do not understand the nuances of civil procedure rules and other protocols.

We often find that a when litigants in person get a default judgment (because the defendant has not responded to the claim) they assume that the judgment will be paid.

When it is not paid, they seek out the High Court Enforcement Officer (Sheriff) to obtain a writ of control and enforce to satisfy the judgment, costs, and fees.

Up to this point no solicitor or legal professional has looked over the claim and the court will not point out obvious errors with names and parties. This is because they do not give legal advice and remain impartial. In any case with the amount of traffic going through the courts even pre covid they would not have the time or resources.

Wrong Legal Entity

Once the Writ is obtained and the High Court Enforcement Officer receives the Writ it is usually checked for errors. At this stage it may be noticed that the defendant is a not a legal entity. Whilst a defendant that is a not a legal entity being listed as the defendant may not be classed as an error with the writ or the judgment it is certainly going to cause problems with enforcement.

There are 3 general types of business legal entities.

Sole trader
Partnership (and Limited liability partnership LLP)
Limited company or Plc

You should check the name on your judgment and if it is simply a trading name then in most cases this cannot be enforced.

In this example we are going to imagine that the judgment and subsequent writ was in the name of XYZ Car Sales. This is a trading name not a legal entity. The legal entity may have been a sole trader i.e., Joe Bloggs trading as XYZ Car Sales, or a partnership Joe Bloggs and Simon Smith trading as XYZ Car Sales, or a limited company such as XYZ Car Sales Ltd or ABC Ltd trading as XYZ Car Sales.

Enforcing the Writ of Control

If we receive a judgment or writ against XYZ Car Sales then we will of course attend and try and gain payment. If it is shown to us that XYZ Car Sales is not a correct entity and there are no goods in that name then we cannot enforce.

The taking control of goods regulations only allow us the take control of goods of the named defendant regardless of whether the entity present or the persons present are connected to the defendant who is a not a legal entity on the judgment.

If there is a slight mistake with the name of the defendant on the writ, or a spelling mistake, then the claimant can make an application to the court to vary the judgment. Civil Procedure Rules.

See a video about: How to Sue the right person or entity.

We often find that the defendant knows that the proceedings have been started. After taking advice they have decided not to contest them as they are not against them. They simply wait until it comes to light, and the defendant has wasted lots of time and money and must start again.

Unscrupulous defendants of course could hide assets by then or become insolvent etc... The claimant at this stage is often deflated and loses some of the fight to gain justice on their claim.

There is nothing wrong with being a litigant in person and dealing with claims against parties that owe you money. However it is important that you do your due diligence at the start and ensure you are issuing the claim against the right party, and that they have the means to pay.

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About the author

This article was written by Andrew Coates, Authorised High Court Enforcement Officer and full member of The High Court Enforcement Officers Association, and current CEO of Quality Bailiffs.

Andy has a Level 4 diploma in High Court Enforcement, and over twenty five years of experience in the bailiff and investigation industry. He is a former governing council member of both CIVEA and ABI.