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Debt Advice Handbook 15th edition

1. Introduction
The majority of cases involving debt are dealt with by a single county court in one of a network of 173 hearing centres throughout England and Wales. Cases are heard by district judges and circuit judges, assisted by part-time judges, with some decisions being delegated to court staff. Judges are experienced barristers and solicitors.
Alert: Courts and tribunals are now open again following the coronavirus outbreak but still have some coronavirus restrictions in place. HM Courts & Tribunal Services (HMCTS) has also issued guidance for people required to attend court in person (as a party or witness) entitled Coronavirus (COVID-19): courts and tribunals guidance, which is available at gov.uk/guidance/coronavirus-covid-19-courts-and-tribunals-planning-and-preparation. The guidance includes guidelines on social distancing measures and the need to wear face coverings.
Procedures in the county court are laid out in the Civil Procedure Rules 1998, now available online at justice.gov.uk/courts/procedure-rules/civil. Advisers should note that these are now laid out similarly to other gov.uk web pages. The Ministry of Justice and HMCTS are responsible for the courts. HMCTS publishes various leaflets and guides on court procedure, available free of charge from court offices and gov.uk/government/collections/court-and-tribunal-forms. Leaflet EX343 sets out how court users can complain: Unhappy with our Service: what can you do? (the complaint form is Form EX343A, available from gov.uk/government/publications/form-ex343a-complaint-form). All forms of discrimination should be challenged and taken up with the court as part of debt advisers’ social policy work.
The court manager and her/his staff are responsible for carrying out the court’s administrative functions – eg, processing applications and fixing hearing dates. It is a good idea to establish a working relationship with your local court. Many courts have users’ groups and/or court desks for unrepresented parties. Debt advisers cannot represent their clients in court, except at hearings allocated to the small claims track (see here), but judges have increasingly recognised the value of such representation and rarely refuse to allow advisers to speak on clients’ behalf. However, only legal representatives can sign court forms on behalf of clients.1Barristers, solicitors and their employees, and people authorised by the Lord Chancellor to conduct litigation under s11 CLSA 1990
 
1     Barristers, solicitors and their employees, and people authorised by the Lord Chancellor to conduct litigation under s11 CLSA 1990 »
Default notice
Alert: With effect from 2 June 2021, default notices must comply with the Consumer Credit (Enforcement, Default and Termination Notices) (Coronavirus) (Amendment) Regs 2020. These regulations amend and replace the Consumer Credit (Enforcement, Default and Termination Notices) Regs 1983, which prescribe the form of the notice required to be given by a creditor before taking certain action to enforce or terminate an agreement. The 1983 Regs are updated by:
    banning the use of block capitals (often regarded as intimidating) as an aid to prominence;
    removing technical legal language;
    altering the wording and ordering of notices to improve clients’ understanding; and
    signposting clients to up-to-date sources of support and advice.
A ’default notice’ must be issued by a creditor for all debts regulated by the Consumer Credit Act 1974 before court action can start for early payment of money due under an agreement. A default notice is usually required in debt cases where arrears are claimed along with the money which would become due if the agreement ran its course. It is not required if the time allotted to an agreement is already over but an outstanding balance remains, or if only arrears are claimed.
The default notice must contain details of:
    the type of agreement, including the name and address of the creditor and client;
    the terms of the agreement which have been broken;
    for fixed-sum credit, the early settlement figure;
    the action needed by the client – eg, to pay arrears in full by a certain date;
    the action the creditor intends to take if the client is unable to comply with the default notice – eg, refer to debt collection or start court action.
A default notice served on or after 1 October 2008 must contain the following further information.
    If the notice relates to a hire purchase or conditional sale agreement, information on the client’s right to terminate the agreement, including the amount of her/his liability if s/he exercises this right (see here).
    Where applicable, a statement that the client may have to pay contractual interest in the event of the creditor obtaining a judgment (see here).
    A copy of the current Financial Conduct Authority information sheet on default.1fca.org.uk/publication/information-sheets/information-sheet-default-aug-2018.pdf
The client must be given at least 14 days to carry out the required action. If the default notice requests payment, it must contain a statement about time orders and about seeking advice from a local Citizens Advice office, solicitor or trading standards department.
If a default notice is not complied with, a creditor can:
    terminate the agreement; and
    demand earlier payment of money due under an agreement.
If a default notice is not completed correctly (eg, it does not give the client sufficient time to respond or the arrears figure is incorrectly stated), it is invalid and the creditor must issue a fresh notice before taking action.2Brandon v American Express [2011] EWCA Civ 1187 (Adviser 149 abstracts)
Creditors do not always automatically initiate court action if a default notice is not complied with and so, even if the time limit has expired, it is always worth trying to negotiate with a creditor in order to prevent court action. Clients often claim not to have received default notices and so bear in mind that a default notice is treated as served for this purpose if it is sent by post to the client’s last known address.3s176(2) and (3) CCA 1974; Lombard North Central v Power-Hines [1995] CCLR 24
 
2     Brandon v American Express [2011] EWCA Civ 1187 (Adviser 149 abstracts) »
3     s176(2) and (3) CCA 1974; Lombard North Central v Power-Hines [1995] CCLR 24 »