London | Frankfurt | Madrid | Milan | Rome

MODERN LAWYERSFOR CHANGING TIMES 'a City firm in a non-City location' - Legal 500

OCT
31

New Debt Recovery Pre-action Protocol

debt recovery 1The 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.


Preceding Position

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

  1. 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;

  2. 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;

  3. Encourage the parties to act in a reasonable and proportionate manner in all dealings with one another;

  4. Support the efficient management of proceedings that cannot be avoided.

 
The Process

The process begins with the creditor who should:

  1. 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.

  2. 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.

  3. Enclose a copy of the Information Sheet and the Reply Form; and

  4. Enclose a financial statement form

 

If the debtors wish to respond they should:

 

  1. 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.

  2. 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.

  3. 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.

  4. 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.

  5. 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).


Compliance

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:

  1. Further delays in collection of debts if any legal proceedings are stayed to remedy non-compliance with the Protocol;

  2. Additional cost sanctions in regards of payment of the debtor’s legal costs or a failure to cover costs; and

  3. 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.


In Summary

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.

  

Continue reading
  600 Hits
600 Hits
OCT
25

Latest case results and new instructions for Lewis Nedas Law

Jeffrey Lewis 

1 .is advising a well known film producer who is the subject of sexual harassment allegations ;
2. Instructed in yet another major tax fraud investigation ;
3.represents another major residential landlord facing allegations of planning offences,breaches of HMO licences and POCA application by a London local authority 

The firm has been asked to advise an individual who has made allegations of sexual harassment against Harvey Weinstein 

Siobhain Egan is advising another UK company on corporate governance issues and successfully represented the following facing allegations of fraud and dishonesty : two professional men and a finance professional .She was able to persuade the Prosecution to withdraw the prosecutions after proceedings had been issued , as a result of robust submissions .

Keith Wood successfully represented a professional man , who was acquitted of a serious sexual allegation after a Crown Court trial .

Unan Choudhury , the partner who leads our East London office has been instructed this week in two separate murder cases and an additional attempted murder prosecution

Continue reading
  549 Hits
549 Hits
OCT
24

Lewis Nedas Law ranked highly in The Legal 500 2017

THE LEGAL 500We are delighted that yet again we have been highly ranked in this years Legal 500 rankings, acknowledging our work in both Crime and fraud defence. Please see this years comments about the firm:

Lewis Nedas Law Limited has been recommended in the following 2 practice areas;

Crime, fraud and licensing - Crime: general

Lewis Nedas Law Limited is ‘an excellent firm which acts proactively for clients’ and ‘has a good reputation in both general and fraud-based crime, particularly in high page-count cases’. Key individuals include:

Jeffrey Lewis who specialises in fraud and serious crime matters; 
Miles Herman who ‘has excellent judgement and goes to great lengths for his clients’; and
Siobhain Egan who is ‘a committed legal professional with a no-nonsense attitude’.

Crime, fraud and licensing - Fraud: white-collar crime

Lewis Nedas Law Limited is ‘in the top category of solicitors who provide a personal and diligent service to both public and privately funded clients’. Key individuals include:

Siobhain Egan who ‘provides a thorough and committed service’ and ‘gives 100% to all clients’; and
Jeffrey Lewis who advises on VAT and tax investigations, money laundering and regulatory and disciplinary issues.

  

Continue reading
  551 Hits
551 Hits
OCT
13

Lewis Nedas law nominated for 2017 Modern Law Awards 

awards trophyWe are very pleased that our Crime and fraud departments have been nominated for this years ‘Modern Law Awards'.

  

 

Continue reading
  448 Hits
448 Hits
OCT
06

Latest case results and new instructions for Lewis Nedas crime, fraud and tax investigation solicitors

  1. court representation defence londonJeffrey Lewis is advising a Company Director in the UK who is currently being investigated by the NCA for bribery and corruption allegations linked with the public sector in a caribbean country;

  2. Jeffrey is also advising two large long established buy to let (private sector) residential landlords, who are being separately investigated by various local authorities for multiple breaches of HMO licences. The local authorities concerned are also contemplating recovery proceedings under POCA 2002 (The Proceeds of Crime Act 2002). This is a relatively new approach by the local authorities to recover substantial sums (rent etc.) earned by those who have breached their HMO licences. The powers under POCA 2002 are both draconian and extensive, as they allow the prosecuting authority to go back 6 years before the commission of the offences and recover monies gained by the landlords of the property concerned. We are seeing more of these proceedings against private sector landlords, and have specialist lawyers that can assist you if you face these issues;

  3. Our new Oxford Office is booming:

    a) Sean Reilly represented an individual facing firearms and extreme pornography offices, who was acquitted after robust submissions were made by his defence Advocate, James Reilly. Sean and James are also instructed in a new murder prosecution to be heard at Oxford Crown Court;

    b) Richard Demczak successfully represented a client who faced trial at Oxford Crown Court, concerning allegations that he conspired to rob a cannabis factory. He was acquitted by the jury;

    c) Richard also represents the following clients:

    - An individual suspected of hacking into the computers of multiple Oxford Colleges; 
    - An 11 yr old child accused of raping another 8 yr old child;
    - Two separate cases of historic rape allegations;

  4. Unan Choudhury successfully represented a young man accused of various serious offences in relation to acid attacks and possession of a noxious substance. He was tried in absence and very unusually acquitted of all charges, despite his failure to appear at trial;

  5. Siobhain Egan successfully represented a hospital doctor who faced an investigation spanning many months into various allegations of fraud - the investigation was dropped by the investigating authority after detailed submissions were made by Siobhain upon her clients behalf;

    Siobhain also:

    - Advised the Director of a FX trading desk working for an international bank investigated for dishonesty, the matter was resolved by way of a civil remedy and criminal proceedings were avoided;
    - Advises a locum GP facing proceedings brought by HMRC into his use of a Personal Service Company and IR35;
    - Advises a hospital doctor facing a complaint concerning sexual offences;
    - Advises another young professional man facing an allegation of rape.

     

 

Continue reading
  574 Hits
574 Hits

Accreditations
and Awards

legal 500 uk leading firm 2017 chambers leading firm 2017