Combined with the effects of the Insolvency (Northern Ireland) Order 1989 (Amendment) Order (Northern Ireland) 2016, which raises the level of debt that must be owing to a Creditor before they can petition for an individual’s bankruptcy from £750 to £5,000, it may make successfully recovering debts owed by individuals more difficult.

It may therefore be prudent for Creditors to undertake credit checks against their potential customers prior to entering into any contract, or once a bad debt has accumulated, secure a ‘worthsue’ report prior to issuing proceedings, in an attempt to ascertain whether the debtor would be able to pay any judgement, so as not to “throw good money after bad”.

If internal chaser letters or indeed a solicitor’s pre-action letter does not provoke a positive response, Creditors have two options to recover the debt:

1. Statutory Demand if the amount is in excess of £5,000 for an individual or £750 for a company

• If the debt is not paid within 21 days, and no dispute received, the creditor can petition for the debtor’s bankruptcy/company to be wound up

2. Issue Court proceedings     

• Small Claims Court up to £3,000

• County Court £3,000-£30,000

• High Court £30,000+

Which method to utilise depends on the individual factors of the case, for example, how much is the debt, will the debtor be reluctant to be made bankrupt/company wound up, is the debtor likely to challenge the debt is owed.

In reality, most Creditors don’t want to expend monies winding up a company or making an individual bankrupt, and whilst court proceedings are more expensive and time consuming, if successful, you will have a decree against the Debtor upon conclusion.

Again, the Decree can be enforced via a number of methods, namely:

1. Statutory Demand if the amount is in excess of £5,000 for an individual or £750 for a company– now no dispute can be raised that the debt is not owed
2. The Enforcement of Judgments Office (EJO)

The EJO has a number of powers to enforce payment of a debt under Article 13 of the Judgments Enforcement (Northern Ireland) Order 1981, as follows:

• Attachment of Earnings Order i.e. deductions made by an employer from a person’s wage or salary
• Instalment Orders, where fixed payments are required until the debt is paid
• Orders Charging Land, which remain on the property for 12 years, and must be satisfied prior to any sale
• Order of Seizure – where the EJO enter the debtor’s premises and seize property to sell at auction
• Orders Appointing Receiver, where the EJO intercept money due to the debtor
• Garnishee Orders, where the EJO take money directly from a debtor’s bank account

However, it may be that in future Alternative Dispute Resolution will play a larger part in resolving debt recovery disputes, given the above problems, the High Court’s stance on mediation, and indeed the need for many businesses to continue to trade with the other party to a dispute.

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In Northern Ireland, it is an offence to sell intoxicating liquor without a licence and the Licensing Order (NI) 1996 (“the 1996 Order”) regulates the sale and consumption of alcohol.  This includes who is capable of holding a liquor licence, what kind of premises are suitable for the sale of alcohol and the hours during which alcohol can be sold.

The 1996 Order does not give powers to the court to grant new licences for pubs or off-licences without an applicant submitting a valid and subsisting licence. There is therefore a finite number of licences available for the whole of Northern Ireland. In the absence of legislative change, the number of licences will only ever decrease as pubs close and licences are not renewed. A combination of this ‘one in, one out’ system and the decreasing number of pubs in cities, towns and villages across Northern Ireland, makes the process of identifying and acquiring a valid and subsisting licence a risk-laden and costly exercise. One only has to look at the rejection of Wetherspoons application for a liquor licence in 2018 to see how easily a licence can lose its valid and subsisting status. In this case, the licence surrendered to the court was deemed invalid as past alterations carried out to those licence premises had been done without the Court’s approval. 

The difficulty in obtaining a liquor licence for a pub or off-licence does not stop once a valid and subsisting licence has been obtained and submitted to the Court. In particular, the Court will consider the character, reputation, financial standing and previous licence holding experience of the Applicant to ensure they are fit to hold a Liquor Licence. This extends to the Directors if the Applicant is a Company. The Court will also pay close attention to the number of other licenced premises in the vicinity of the Applicant’s premises and an application may ultimately be unsuccessful if the applicant is unable to establish a need in the locality for the licenced premises. An applicant may also face objections from a variety of third parties to the granting of a licence and this will likely result in increased delays and additional costs.

In recent years, the current state of our licensing laws has come under heavy criticism. This has continued into 2019 and in the build up to the 148^th Open Championship in Portrush, the Department for Communities launched a consultation regarding events of this nature. However, this consultation did not address the wider criticisms levied at our licensing laws and sought only to address licences for ‘special events’. It is therefore unclear what steps will be taken in the coming years to modernise the 1996 Order which was drafted at a time when pubs and off-licences were more prevalent in cities, towns and villages across Northern Ireland.

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• That a Divorce can be completed ‘online’.

In Northern Ireland, this is not yet the case. In October 2015, plans were announced by the Northern Ireland Assembly to consider whether a system similar to eBay could be put in place to allow those wishing to Divorce to do so online, similar to the system used in the Netherlands and Canada. It remains to be seen how this would work in practice, particularly in complex cases. The traditional system in Northern Ireland remains at present, where proceedings are issued in paper format and the Petitioning party is required to attend Court to give evidence for the Decree Nisi to be granted.

• The reasons for the Divorce will impact on the financial settlement.

This is a misconception that can cause great surprise to the ‘wronged’ party. People are often surprised to hear that because their spouse has, for example, committed adultery, this will not mean that they get more out of the pot of finances because they are to blame.  Only in very rare cases will the conduct of one of the parties be sufficient for the Court to penalise them in the financial settlement i.e. where it would be unfair to the other party to disregard it. This may refer to rare and extreme cases such as serious financial misconduct, or where one party has caused serious injury to the other, leaving them unable to work, for example. In general, where a husband or wife’s behaviour has caused the marriage to end (e.g. by way of adultery or unreasonable behaviour) it is unlikely that that behaviour will be sufficient to impact upon the financial settlement.

• That when a party separates they need a ‘legal separation’.

There is no formal requirement for a separating couple to record their separation either with the Court or with Solicitors in order to permit them to seek one of the separation grounds for Divorce in the future. Separation is usually obvious i.e. one or both parties leaving the matrimonial home, or if neither party is able to move out, can be evidenced by separate bedrooms, and socialising, eating, cooking and doing chores separately. Sometimes a ‘legal separation’ can refer to a resolution of the matrimonial finances, by way of Matrimonial Agreement, which aims to reach resolve all outstanding financial matters pertaining to the marriage.

• It is possible to get ‘everything‘.

It is highly unlikely that one party will be awarded the entirety of the assets in a case. Each case is dealt with in a fact-specific way, with the ultimate objective to obtain fairness for both parties; it would therefore be unusual if this meant that one party would be left with nothing.

• It isn’t adultery post separation.

While the parties remain married, sexual relations with another person can still be cited as adultery, even post separation.

• You are automatically divorced after a lengthy separation.

This is not the case – even where there has been a very lengthy separation (10 or 20+ years) you never ‘automatically’ become divorced.   One of the parties to the marriage is required to make an application to the Court for the Divorce process to take place. 

Naomi Devlin is a Solicitor in the Family Department at Worthingtons Solicitors :  For advice, please visit our website www.worthingtonslaw.co.uk or contact Naomi on 028 9181 1538 or 028 9043 4015.

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