The first day of the new legal year introduced a new Pre-Action Protocol specifically formed to facilitate debt claims (‘the Protocol’). As of 1 October 2017, creditors must comply with the Protocol when claiming payment of a debt from a debtor, failure to do so is likely to result in cost sanctions.
Due to the time and expense of court action it is commonplace that the issuing of court proceedings is used as a last resort in an attempt to settle disputes. The Civil Procedure Rules provide a number of protocols which highlight Alternative Dispute Resolution (ADR) ideas.
Before the Protocol came into force, there was no specific standing on Pre-Action Protocol for debt claims. Parties were, however, expected to observe the existing Practice Direction for Pre-Action Conduct.
When will the Protocol apply and to whom?
The new Protocol applies to any business (in limited form, partnerships, sole traders and public bodies) claiming payment of a debt from an individual (also includes a sole trader). The business is referred to as the creditor and the individual is referred to as the debtor.
Put simply, the protocol details the particular conduct the court will expect of the parties prior to the start of proceedings. One distinct feature of the Protocol is the new Information Sheet and Reply Form which must be provided to the debtors in all cases. The Protocol was initiated to complement any regulatory regime to which the creditor is subject – if compliance with this Protocol is incompatible with a specific regulatory obligation, that regulatory obligation will take precedence.
In summary, the Protocol does not apply:
- To business-to-business debts unless the debtor is a sole trader;
- Where the debt is covered by another pre-action protocol such as construction and engineering or mortgage arrears;
- To claims issued by HM Revenue and Customs that are governed by Practice Direction 7D (Claims for the Recovery of Taxes and Duties)
Aims of the Protocol
- To encourage early engagement and communication between the parties, including early exchange of sufficient information about the matter to help clarify whether there are any issues in dispute;
- Enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure;
- Encourage the parties to act in a reasonable and proportionate manner in all dealings with one another;
- Support the efficient management of proceedings that cannot be avoided.
The process begins with the creditor who should:
- Send to the debtor a letter of claim before proceedings are commenced. The Letter of Claim must contain certain information, formatted and sent in such as way as the Protocol directs. If the debtor does not respond to the Letter of Claim within 30 days of the date of the letter, the creditor may start court proceedings.
- Do one of the following:
i) enclose an up-to date statement of account for the debt (including details of any interest and administrative or other charges added); or
ii) enclose the most recent statement of account for the debt and state in the letter of claim the amount of interest incurred and any administrative or other charges imposed since the statement of account was issued, sufficient to bring it up to date; or
iii) where no statements have been provided for the debt, state in the letter of claim the amount of interest incurred and any administrative or other charges imposed since the debt was incurred.
- Enclose a copy of the Information Sheet and the Reply Form; and
- Enclose a financial statement form
If the debtors wish to respond they should:
- Use the Reply Form for their response and request copies of any documents they wish to see and enclose copies of any documents they consider relevant.
- If debtor indicates that they are seeking debt advice, creditor must allow the debtor a reasonable period for the advice to be obtained. The creditor should not start court proceedings less than 30 days from receipt of the completed Reply Form or 30 days from the creditor providing any documents requested by the debtor, whichever is the later.
- If the debtor indicates in the Reply Form that they are seeking advice that cannot be obtained within 30 days of their reply, the debtor must provide details to the creditor as specified in the Reply For. The creditor should allow reasonable extra time for the debtor to obtain that advice where it would be reasonable to do so in the circumstances.
- If the debtor needs time to pay, the creditor and debtor are required to attempt to reach agreement for the debt to be paid by instalments, based on the debtor’s income and expenditure. If the creditor does not agree to the debtor’s proposal for repayment, they should give the debtor reasons in writing.
- It is worth noting that a partially completed or blank Reply Form should be taken by the creditor as an attempt by the debtor to engage with the matter. It if for the creditor to contact the debtor to discuss the Reply Form and obtain further information to fully understand the debtor’s position.
After all of this and disclosure of requested documents and a settlement cannot be reached, the parties are encouraged to resolve the dispute with the use of ADR, without commencing court proceedings. However, if an agreement still cannot be reached the creditor must give the debtor no less than 14 days’ notice of its intention to issue court proceedings (unless the limitation period is about to expire).
If the matter turns litigious, the court will expect the parties to have complied with the Protocol. Non-compliance of such will be taken into consideration when giving directions for the management of further proceedings. Failure to comply with the Protocol may have a severe impact on the creditor and result in:
- Further delays in collection of debts if any legal proceedings are stayed to remedy non-compliance with the Protocol;
- Additional cost sanctions in regards of payment of the debtor’s legal costs or a failure to cover costs; and
- Inability to recover interest from a debtor or recovery at a reduced rate
What does this mean for creditors?
None of the above is good news for creditors. It is clear that the Protocol has increased the onus on businesses in the recovery of debt. In essence the new Protocol will bring about burdensome responsibilities on creditors when the process for recovery of debts comes about.
The additional time and effort demanded by the new Pre-Action Protocol for debt claims requires, from the creditor, a greater degree of diligence and forbearance when recovering outstanding debts. It is an agreeable suggestion to take independent legal advice to safeguard against such repercussions mentioned in this article.
Notwithstanding earlier controversies, the Protocol will aid in both the resolution of individual claims between creditors and debtors without litigation and contribute in some way to reducing the civil court claims comprising largely of debt claims against individuals.
In reflection of these changes, if you require any additional information in relation to the implementation of the new Pre-Action Protocol or require any legal assistance please do contact Lewis Nedas for further guidance and advice.
Article by Tia Lim-Watts of Lewis Nedas Commericial and Litigation Department.