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Pre-Action Protocol For Debt Claims

Introduction

Businesses seeking to recover debts from individuals (including sole traders) will be expected to comply with the requirements of a new pre-action protocol for debt claims from 1 October 2017.

The Protocol sets out the conduct the court normally expects of the parties prior to the commencement of proceedings. Its aims are to encourage communication between the debtor and creditor rather than resorting to litigation. Early engagement and the exchange of information is required and parties are encouraged to act in a reasonable and proportionate (to the size of the debt) manner.

The Protocol applies to any business (including sole traders and public bodies) claiming payment of a debt from an individual or sole trader. It does not apply to business-to-business debts unless the debtor is a sole trader.

Obligations

The creditor should send the debtor a letter of claim providing certain information prior to starting proceedings. The information to be included in the letter of claim is listed.

A debtor should reply using the Reply Form (included in the above link) stating whether they agree with the debt and providing information they wish to rely on.

If the debtor requests time to pay the debt, the parties should try to reach an agreement on affordable instalments based on the debtor’s income and expenditure. If the creditor does not agree with the debtor’s proposal to repay, the reasons why should be given in writing.

If agreement is not reached, the parties should consider alternative dispute resolution (ADR). This may be simply engaging in informal discussions or negotiations or may involve a more formal process. The potential cost of ADR in relation to the debt should be considered.

Comment

It remains to be seen but it does look as if debt recovery may become a slower process. Could the system could be open to abuse with a debtor using it to delay payment or to seek a lower settlement?

This should not be relied upon for legal advice. If you would like any further information or advice please email richard@clariclegal.co.uk.

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