If you are in business, dealing with individuals who sometimes don’t pay, you may be thinking about “going legal“. The County Court rules relating to debt claims are due to change in October 2017 and you must be aware of the new protocol to follow or the Court will impose sanctions.
The main changes are the work that has to be done and the longer timescales before you can safely issue a court claim. You have to allow the debtor a lot more time, pre-action, providing more details of the debt itself and also listening more to any proposals for settlement. This may sound frustrating when you’ve done the work and expect to be paid, but there has been a trend for some time now for the Courts to require the parties to try to settle without using the Court’s time and resources, which are constantly under pressure – as are those who haven’t been paid, one might argue!
In particular, note that “individuals” now includes “sole traders” – so this not only relates to private debts but also could take in some commercial work.
The significant point is to make sure that you have all the details you need before you start chasing the debt so that you can keep up the pressure within the Court’s timeframe. The lesson to learn from all this is that it is more important than ever to keep accurate records, emails, evidence of communications etc when you’re in business and expect to be paid for the work you’ve done.
If you need any help with this, contact the Dispute Resolution team at Curwens – Rose Albay – 0208 363 4444.
There is a lot to consider before starting court proceedings in England & Wales:
The court has to deal with matters “justly and at proportionate cost.”
Do a cost/benefit analysis before starting proceedings, including the cost of enforcement.
Check the other party is good for the money – there’s no point incurring the cost of litigation if you can’t enforce the judgment.
Don’t start proceedings if you don’t intend to see them through. Unless it’s a small claim (less than £10,ooo) you’ll almost certainly be liable for the other party’s costs if you discontinue the claim.
Be careful about always threatening to sue if you don’t mean it – don’t just “crywolf” – the word will get round to your contacts and damage your reputation.
Recovery of your legal costs depends on:
who wins or loses;
your conduct as well as compliance with court rules and orders (for example, a failure to comply with a pre-action protocol can have cost consequences even for the party that wins);
when the matter ends (whether before or after proceedings have been started);
the financial value of the claim and the “track” the claim is allocated;
how the claim is concluded (whether by agreement or at trial).
Reaching a settlement
Litigation can be disproportionately expensive to the sums being argued about, the outcome is uncertain, the court is only able to offer a limited range of remedies and litigation often destroys any prospect of the parties resuming a commercial relationship so consider alternatives -for example:
It might be possible to recover the debt or agree an alternative future course of action by opening a negotiation with the debtor.
This can be done verbally or in writing (which includes e-mails).
Parties usually negotiate on a without prejudice basis.
The without prejudice rule generally prevents statements made in a genuine attempt to settle an existing dispute from being used as evidence of admissions against the party which made them.
This rule means that, if the negotiation or mediation fails and the business then issues court proceedings, any statements that the parties made in a genuine attempt to settle the dispute (whether in writing or orally) will not be put before the court in the proceedings.
Mediation is a flexible, voluntary and confidential form of dispute resolution in which a neutral third party helps parties to work towards a negotiated settlement of their dispute.
The parties retain control of the decision whether or not to settle and on what terms.
You can always simply write off the sum but before taking this step, consider the:
Size of the debt.
Likely cost of recovering the debt.
Importance of the current relationship between the parties.
Likelihood of maintaining an on-going commercial relationship between the parties.
We’ve all heard of pre-nups for the rich and famous but those of us who live more “ordinary” lives also should think about finances when going into a relationship and, sadly, if things start to go wrong – don’t let “heart rule head”. I’m grateful to my colleague, Vijaya Sumputh, a Family Law expert at Curwens Solicitors, for her thoughts on this :
PROTECTING YOUR FINANCES FOLLOWING A RELATIONSHIP BREAKDOWN
Beginning a new relationship can often feel like entering uncharted waters. All you want to do is to live happily ever after with your new partner, but people often don’t consider what happens if the relationship ends. A split can have a devastating emotional impact and financial uncertainty adds significant stress to an already difficult time. A recent study suggests that as many as 2 million Britons are in debt because their ex-partner continued to spend after they’d separated – a “dirty separation trick” by a bitter “Ex”.
Here, the Court has the power under the Matrimonial Causes Act 1973 to split the debt between the two parties based on their financial needs and the Court may award more to the paying party including spousal maintenance to cover the repayments.
There is no such protection for unmarried, cohabiting couples. In long term relationships, many couples set up joint bank accounts (even if marriage is not their immediate plan) to cover mortgage/rent and bills. This normally ends once the relationship comes to an end, because living with someone does not create a legal relationship. So, if a couple has a joint debt and then splits up, both can end up being liable for the debt and one may be stuck with it if the other party doesn’t pay. Unmarried couples must think about what happens to their investments if they split up – if the family home is to be sold, how will the proceeds be split ?
You can protect yourself by getting your solicitor to draft a “Cohabitation” or “Living Together” agreement (also known as a deed) which sets out who pays what and what would happen to the assets if the relationship comes to an end, with a Declaration of Trust as to the ownership of the house. You can also consider using Mediation or negotiation to resolve issues.
It may seem pessimistic to think about a relationship ending when you’re just starting out together, but on the other hand, a break up can be devastating emotionally, so a living together agreement helps with the practical issues, to reach a quick settlement.
If you think what I have described fits your circumstances, do give Vijaya a call for a no obligation chat on 0208 363 4444 or e-mail us at firstname.lastname@example.org
Clients often come to our Debt Collection service (“Prompt Pay”) when they are owed money and want to “go legal”. They sometimes have problems, however, with our first question which is “can we have all your papers?”
They often are so focussed on doing a great job for their customers that they lose sight of the need to keep good records as the job goes on. They can’t imagine it might go horribly wrong further down the line and they will need to issue Court proceedings. This is often the case in the building trade – not so much in the very large contracts but more often than not in the smaller projects such as extensions, kitchens, conservatories etc.
I’ve heard it said before…. “we don’t have a contract, it was just verbal”. This is a popular mistake – a contract can certainly be formed verbally but the problem is that when it goes wrong, it’s much more difficult to get convincing evidence, which is why solicitors advise contract terms and conditions should be in writing.
We always advise starting as you mean to go on – with good paperwork from estimate onwards, with details of any extras (there are always extras!) signed off by the customer as you go along. One useful tip – if you have two customers, say joint householders, either get them both to sign off extras or if one is giving instructions and taking the lead on the project, get an authority from the other one – believe me, it will save a lot of grief further down the line.
One last note of caution – it’s so easy nowadays to slip into over-familiar language in emails and, as a contract goes wrong and perhaps tempers get frayed, it might be tempting to fire off a heated email without thinking it through. Remember, if the case goes to Court, all that documentation will at some time be seen by a Judge who will be reading it in the cold light of day. Wouldn’t you like to be the one who sounds the most reasonable in how you dealt with a dispute? Just count to 10 (twice!) and edit before hitting “send” !