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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.

  

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OCT
20

Recent instructions for Lewis Nedas Commercial and Litigation Solicitor Adam Creasey

landlord and tenantAdam Creasey of our Commercial and Litigation Department has recently been instructed in the following matters:

  • Bringing an employment claim against TfL for unfair dismissal;

  • Acting for a residents association in a class action against the freeholder over a major works bill over £1million;

  • Acting for a group of tenants in a litigation matter where the original freeholder failed to give first refusal to the tenants in accordance with the Landlord and Tenant Act 1987;

  

 

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SEP
12

Latest instructions and successes for Lewis Nedas Commercial and Litigation Department and Ian Coupland, Adam Creasey and Annabelle Pantling

insider tradingIan Coupland:

  • Successfully settling a long-running commercial dispute in respect of our client’s rights – relating to the terms of a share purchase agreement;

  • Successful settlement of negotiations with Treasury Solicitors bona vacantia department relating to high value property portfolio;

  • Instructed to advise and represent a Director in Company Director Disqualification proceedings (several similar new instructions on cases of this nature). 

 

Adam Creasey:

  • Successfully settling a construction dispute worth £30,000.00 on behalf of Defendant company with very favourable result;

  • Acting for the Contractor in a construction dispute in the sum of £125,000.00, and is currently in the midst of successfully negotiating settlement;

 

Annabelle Pantling:

  • Successfully obtaining relief from forfeiture of a commercial lease within 48 hours of client’s initial instruction, client is back in and trading successfully, having turned over £10,000.00 within his first week re-trading;

  • Obtaining default judgment in the sum of £150,000.00 against a property investment company, of which our client was a former director and now Issuing winding up proceedings to obtain payment.

     

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JUN
22

Latest instructions and successes for Lewis Nedas Commercial and Litigation Department and Adam Creasey

commercial litigationAdam has been instructed in the following matters:

(1) Civil Litigation; Instructed by a building company in relation to defending a debt claim raised by a disgruntled sub-contractor

(2) Employment; Instructed by a company to draft an employment contract

(3)Property Litigation; Instructed by a flat-owner in relation to a dispute relating to the basement floor of a converted Victorian property

(4) Civil Litigation; Instructed by a car dealership in relation to a cross-border dispute

 

Recent Successes:

(1) EmploymentAchieving a positive settlement in relation to an employment claim that involved discrimination based on sexual orientation

(2) Corporate; Completeing a company Share Purchase for over £100k.

 

 

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MAY
09

Commercial and Litigation Department update

fcaApril was a busy month for the Commercial and Litigation Department with a host of successes for clients with a range of concerns;

  1. A 48 hour emergency injunction; Ian Coupland received instructions early on Friday 21 April 2017 stating that our Tenant client had attended his bespoke tailoring business premises that morning to find that the locks had been changed by his Landlord and that his 10 year lease had been forfeit. Together with the assistance of Annabelle Pantling and all within a very tense period of 48 hours, Ian prioritised and successfully obtained an urgent injunction at the Central London County Court which allowed our Tenant client back into his property just in time to obtain a bespoke suit required by a customer for his wedding the following day (!). Relief from forfeiture was subsequently granted, and our client is now back in his premises and trading as usual.

  2. New instruction by a client under investigation by the FCA; Ian Coupland and Adam Creasey have been working together to assist a client whose business practices are being scrupulously considered by the Financial Conduct Authority. Elements of Director disqualification are to be considered, together with third parties and their own business practices which add further complexity to a long history of behaviour currently falling into question.

  3. A fairly compensated but unfairly treated employee; Adam Creasey has obtained a commendable result for an Employee client who was dismissed after 20 years of service for his Employer, without reason. After a year of working diligently for our Employee client, Adam successfully brought this claim to its Tribunal Hearing on 12 April 2017, where our client was awarded in excess of £20,000.00 in recognition of the unfair treatment and incorrect procedures followed by his Employer in dismissing him so abruptly without reason. Our client has now obtained subsequent employment with a new Employer and is incredibly pleased with the result Adam achieved for him after his many years of previous service.

  4. Major business restructure; Ian Coupland has been proactively advising our Commercial client in a major restructure of his business interests, under section 110 Insolvency Act 1986 in relation to the voluntary winding up of our client’s company.

  5. Reaching settlements; Adam Creasey has assisting an reaching an out of court settlement for a client who stood before a £20,000.00 claim and further Counterclaim, had the deal not been made in the final hours before preparing for a forthcoming hearing. Adam skilfully negotiated with the Claimant in order to obtain a brilliant result for our client and avoid the need to increase costs or spend more time on ongoing court proceedings.

    

 

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