The form used for Statutory Demand is prescribed by the legislation and the exact form to be used will be dependant on whether or not the Creditor obtained judgment and whether or not the debt is payable immediately or at a future date.
If the Creditor has obtained judgment prior to the Demand being issued, they should use Form 6.2. If no judgment has been obtained the Creditor will use Form 6.1.
If the debt is payable at some future date then Form 6.3 should be used. In practice, these are seldom used and it is rare that a Process Server will be instructed to serve one.
The Creditor will have to complete all of the relevant sections in the Demand. The Demand should contain all the information necessary for the Debtor to identify the Debt and make contact with the Creditor regarding it. It should also contain sufficient information to confirm how the debt arose.
Finally, it should signpost the Debtor to the relevant Court which would hear any application to set the demand aside. Completed examples can be seen in the Appendix.
Particulars of the Debt
The most important part to consider, from a drafting perspective, are the particulars of the debt. Creditors should make sure that the Debt, and the circumstances which gave rise to the debt being incurred, are fully laid out. The objective here is to ensure that the debt is fully particularised and is objective enough not to attract a spurious application to set aside by the Debtor.
Tell the story of how the debt was incurred, with separate paragraphs which cover:
- The contract/invoice date
- When the invoice/contract became due for payment
- Any acknowledgement of the debt, or payments made, by the Debtor
- Any claim for Late Payment Interest and Compensation
- The total amount due as at the date of the demand.
Its best to enumerate the paragraphs so that its easy to follow.
Where there are several invoices outstanding, or some payments have been received from the Debtor, its best to attach to (and refer to in the particulars) a Statement of Account. This will be particularly useful if there has been numerous transactions between the Creditor and the Debtor over a period of time. It will also allow you to particularise, separately, any claim for interest and debt recovery costs claimed under the Late Payment of Commercial Debts (Interest) Act.
Avoid saying anything opinion based and avoid references to conversations (as hard as it may be!).
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