A new pre-action protocol for debt recovery claims comes into force on 1 October 2017.
It will apply to any business (including sole traders and public bodies) claiming payment of a debt from an individual (including sole traders). It does not apply to claims issued by HMRC, or in cases where the claim is covered by another pre-action protocol, such as construction disputes or mortgage arrears.
The new protocol will require the parties to a debt claim to engage in early communication and exchange of information to seek to resolve matters without the need for Court proceedings. This is to prevent the parties incurring legal costs disproportionately and to promote the use of Alternative Dispute Resolution i.e. mediation and negotiation.
It is important to note that the Court has significant powers to make costs orders and sanctions against a party that has not complied with the protocol.
If parties have complied with the protocol, but is was not possible to resolve the dispute, the creditor can then proceed to issue a claim in at Court without being at risk of sanctions or an adverse costs order.
What is expected of the creditor?
A creditor should ensure that a Letter of Claim is sent to their debtor by post. It is also permissible to send a copy by email, where the creditor has been given such details.
The Letter of Claim should: –
- Outline the amount of debt owed by the debtor
- Be dated accordingly
- State whether interest or other charges still apply
- Where a debt has been assigned, give details of the original debt and creditor
- Include a copy of a current account statement for the debt, including details of interest or other additional charges, Information Sheet and a Reply Form.
- Confirm how the debtor can repay the debt i.e. bank details or address to send payment
- If the debt arises from an Oral agreement, a detailed account of when and where the agreement was made, what it entailed and which parties were involved needs to be provided.
- If the debt arises from a Written Contract, the creditor may be expected to procure a copy of the agreement along with a description of the parties involved and the date it was established.
- If instalments are being/have been offered by the debtor, an explanation of why these may be unsuitable needs to be provided by the creditor, along with an outline of how he/she wishes to proceed.
- If the debtor requests relevant documents or information, the creditor is expected to disclose such to the debtor within 30 days of receiving the request. In the case where such information cannot be provided, the creditor needs to inform the debtor as to why doing so is not feasible.
What is expected of the debtor?
- The debtor needs to reply to the Letter of Claim sent out by the creditor within a 30-day period, using the Reply Form. This should also enclose any pertinent documents.
- The debtor is expected to complete the Reply Form, though if partially completed, this will nonetheless be considered by the creditor as an attempt to engage with the matter and will not be disregarded. In such a situation, both parties will need to communicate with clarity.
- If the debtor fails to comply with the deadline, for example in the instance where the debtor seeks debt advice which cannot be obtained within the period of 30 days, they will need to state this explicitly in the Reply Form, so that the creditor may allow reasonable time for the debtor to obtain advice.
- If the debtor states that they require more time to pay the debt in the Reply Form, both parties will need to reach an agreement as to when the debt may be paid.
- If no agreement is reached, the creditor must provide a reason for why it is disagreeable to the debtor.
If the parties have followed the protocol and it has not been possible to reach agreement, the creditor must give 14 days’ notice of its intention to commence court proceedings. Exceptions to this arise where the claim is very urgent, for example, if statutory limitation period is about to expire.
- Keep written records relating to financial transactions where at all possible. It is far simpler, and therefore usually more cost effective, to seek recovery of a debt under a written agreement or contract.
- Avoid oral agreements regarding financial arrangements where at all possible as the terms can easily be disputed.
- If you are owed a debt, act promptly to recover it. Time limits for the recovery of debt are limited by statute, usually to 6 years.
- Use a mediator or solicitor to assist you in negotiating terms with the other party, especially where the relationship between you is difficult or has completely broken down
Carolyn Olive qualified as a Chartered Legal Executive in 2010 whilst working for a large regional firm. During this time, she gained substantial civil litigation experience. Carolyn is known for her proactive, efficient and cost-effective approach to legal issues. This has attracted a loyal following of clients to include private landlords, letting and managing agents, freeholders/right to manage companies, and tenants. If you think Carolyn could assist you with your matter, please contact 01323 407555 or email email@example.com