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IVA and "material irregularity"

Re: IVA and "material irregularity"

Postby dls » Thu Mar 01, 2018 9:35 am

Sorry, but

left me shocked frankly that a contracting party can lose its rights and remedies despite being the innocent party, and the guilty party gets away if not scot-free, then paying only a fraction of what they are legally bound to pay. Just smacks of injustice.



They used to put people in debtors' prisons. It didn't mean that creditors were paid.
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Re: IVA and "material irregularity"

Postby PeteLukeSilva » Thu Mar 01, 2018 12:43 pm

Agreed and if the debtor`s conduct is criminal, they still do (put them in prison I mean).
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Re: IVA and "material irregularity"

Postby atticus » Thu Mar 01, 2018 12:43 pm

A simple definition of insolvency: there is not enough money to go round. In a free for all, some creditors will do better than others. Insolvency law is intended to ensure that all share the pain.
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Re: IVA and "material irregularity"

Postby PeteLukeSilva » Thu Mar 01, 2018 5:14 pm

It is not the Insolvency Rules I have an issue with. it is about lying and dishonesty.
How would you feel if your solicitor gave you instructions with an agreed rate for your services (knowing full well they could not pay you as they were at the time subject to IVA proceedings )and when you invoiced him or her they said nothing for months, only then to be informed three months later by an Insolvency Practitioner than he/she was the subject of an IVA and you had missed the boat in terms of the creditors meeting as you knew nothing about it (as how on Earth could you)? It seems to me the IA takes into account material irregularities (including dishonesty) but in those circumstances but you seem to be saying it condones such conduct. A "rogues charter" I think you called it.
You referred to cases where you tried to invoke this material irregularity defense but the action failed.
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Re: IVA and "material irregularity"

Postby atticus » Thu Mar 01, 2018 5:29 pm

It is a matter of doing an appropriate amount of due diligence on your customer or debtor. If you are not being paid up front or against delivery, then you take a risk. It is for you to evaluate that risk. As to solicitors, why do you think we usually ask clients to provide payment on account?

I used the phrase rogue's charter in relation to one subsection and not the whole Act. Please do not misquote me out of context.

If you were able to get a ruling that the IVA is void or not binding on you, what then? Your debtor would either propose a new IVA or file for bankruptcy.
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Re: IVA and "material irregularity"

Postby PeteLukeSilva » Fri Mar 02, 2018 9:21 am

I didn't misquote you - I clearly wrote "in those circumstances" - in the context of "material irregularities". It was obvious I wasn't referring to your words in the context of the whole of the IA and I am unclear as to why you would take that view and not give me the benefit of the doubt!
Get the feeling this is a very aggressive forum in the sense that people are quick to take offence or give it. Anyway, I apologise if that was inferred it certainly was not intended.
And I agree with you that in the final analysis - your "what then" point is well taken.
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Re: IVA and "material irregularity"

Postby atticus » Fri Mar 02, 2018 10:56 am

Thank you. And I may have misunderstood that part of what you said.
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Re: IVA and "material irregularity"

Postby dls » Sat Mar 03, 2018 10:13 pm

You say 'your solicitor' but then seem to refer to somebody contracted by the solicitor to provide a service. 'Your solicitor' most obviouslyrefers to a client / soliitor relationship.

If you are a person employed by the solicitor to provide a service through him to his client, then he might properly expect his client to be paying your fees.

This can be complicated when a solicitor is subject to an IVA. To be frank, your description does not provide a clear understanding of who was doing what and when.

When you go through these things, everything is clear in your own head, but a quickdescription toothers need not put them in a position to understand.
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Re: IVA and "material irregularity"

Postby PeteLukeSilva » Sun Mar 04, 2018 6:40 pm

I was working on the understanding that a barrister is paid by his/her solicitor: "instructions", "pay you", in context etc. The hypothetical contract is with the barrister and solicitor. If a third party client engaged with sol does not pay barrister wants recourse to sol, not third party (no privity). But this is obvious. It doesn't really matter at the end of the day. As others have said, what is the point...
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Re: IVA and "material irregularity"

Postby dls » Mon Mar 05, 2018 10:03 am

A barrister has a different relationship with a solicitor. The conventional understanding was that the barrister could not sue for his debt, but the solicitor had a professional duty to pay.

I tried hard never to instruct counsel without getting the money up front from the client. I have had barrister friends who have suffered severe embarassment through solicitor defaults.

The real question is whether a solictr can continue his practising certificate with an IVA in place.
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