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In Focus Commercial Credit The future of enforcement

CCR brought together a group of experts to a round-table debate, sponsored by High Court Enforcement Group, to discuss how enforcement options may be expanded in the future. They were: Denise Crossley, CEO, MMF (DC); Andrew Jackson, head of collections and recoveries, Funding Circle (AJ); James Perry, director technical litigation, recoveries, DWF (JP); Wendy Miles, litigation executive, Barlow Robbins (WM); Robert Thompson, partner – collections and recoveries, Brachers (RT); Karen Savage, partner – head of dispute resolution, Lester Aldridge (KS); Michael Higgins, operations director – solicitor, Lovetts; Frank Johnstone, partner, Maclay Murray & Spens (FJ); John Ricketts, vice president, the Credit Services Association; Sadak Miah, partner – commercial recoveries, Blake Morgan (SM); Jim Taylor, partner, Shoosmiths (JT); Rachel Greenway, head of debt recovery, Else Solicitors (RG); Richard Houlbrook, senior collections professional; Paul Lydon, litigation executive, Brethertons; Martin Leyshon, chair, the High Court Enforcement Officers Association (ML); Alan Smith, director – corporate governance, High Court Enforcement Group (AL)

enforcement work. FCA decisions clearly illustrate that the regulations are difficult to interpret, placing businesses under an unreasonably wide obligation to pick the right enforcement strategy every time. A system where even your best efforts

may still not be deemed good enough by the FCA is a huge burden to bear and, as a result, it has facilitated an overly cautious approach that is bad for business. In my experience, regulated collections

and enforcement teams genuinely want to adopt an FCA culture when making enforcement decisions but, at the moment, they live in fear that no matter what they do it might still result in a hefty fine. This needs to change.

ML: In terms of whether the industry has an appropriate number of enforcement options today, I think the clear answer is ‘no’. We only have to look to the continent to see that our European partners have far greater powers than we do. They receive the judgments and then decide, after gathering all available information, that they can arrest a bank account, sell immovable property, go for a warrant of execution,

and attachment order, or bankruptcy. They have all these remedies available to them.

FJ:What we are all looking for are cost- effective remedies, which are dependent upon targeted enforcement, so we do not have to try six methods of enforcement when one might be effective. This is expensive for creditors and not in the defendant’s interest. In Scotland, sheriff officers are independent

officers of court, answerable to the court, and that is more of an analogy with the High Court enforcement officers (HCEO), rather then bailiffs. Sheriff officers are competent, resourceful, and accountable. I have been using them for over 30 years and I have had two complaints, both of which, upon investigation, were unfounded.

Should a distinction between enforcement in the High Court and County Court be maintained? RT: I cannot see any logic for any distinction to remain. I would certainly welcome consumer debt being brought within the High Court remit. There is a question of debt under £600 and whether that is proportionate, but, with economies of scale,

I would imagine that the HCEOs would be able to do something to work around that. We should not lose sight of the fact that it

is not good news for the consumer to have inefficient alternative enforcement put against them.

AS: The Jurisdiction Order (JO) is based on a case that referred to interest being charged on interest, but we work in a world of computers, which can set interest as 0%, so the situation would not arise. The JO originally had a threshold of

£2,000 and it is now a threshold of £600. We have already said to government, both as an association and as individual members, that if they were prepared to open up the consumer regulated work, we would be happy to sit around the table and talk about the fees HCEOs charge.

SM: I am very much in favour of a change, but any change will, of course, have consequences with the new world of consumer collections. We all have people in our teams who were very good collectors a few years ago when the goal was often extraction of cash. Not all of


Left-right: Paul Lydon; Jim Taylor; Robert Thompson; Denise Crossley; John Ricketts; Martin Leyshon October 2015 15

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