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The Pre-Action Protocol for Debt Claims comes into force on 1 October 2017. This note deals with the key elements to be aware of.
While the Protocol is named the Pre-Action Protocol for Debt Claims the first thing to note is that it only applies to businesses claiming payment of debts from an individual (including individual sole traders) and does not apply to business-to-business debts.
In addition, it does not apply where another Protocol exists, such as the Mortgage Arrears Protocol, but it is intended to complement any regulatory regime which a creditor is subject to and should be read in conjunction with industry and government guidance relating to good practice.
The Protocol is very prescriptive and specifies the information which the Letter of Claim should contain, which is as follows:
The Letter of Claim should also enclose the following:
The Letter of Claim should be clearly dated toward the top of the first page and posted on either the day it is dated or, if that is not reasonably possible, the following day.
The Letter of Claim should be sent by post, but it can also be sent by email. If the debtor has made an explicit request that correspondence should not be sent by post, and has provided alternative contact details, the creditor should use those details when sending the Letter of Claim.
If the debtor requests documents or information then the creditor must provide that document or information or explain why it is unavailable within 30 days of the request.
The Protocol specifies that, where the parties cannot agree about the existence, enforceability, amount or any aspect about the debt, then both parties should take steps to resolve the dispute without starting court proceedings and in particular to consider Alternative Dispute Resolution (ADR), which can include a simple discussion and negotiation, a more formal process such as the Financial Ombudsman Service or, where the debt is large, a mediation.
If court proceedings are started the court can take into account non-compliance when giving directions for the management of the proceedings although they will not be concerned with minor or technical infringements.
On first impressions, the amount of information that the creditor has to provide may appear a lot, but most creditors are already providing details of the debt and the relevant information now required. However, having to send out the Information Sheet as well as a Reply Form and Financial Statement is an extra burden.
One of the biggest changes is the delay that may be incurred, as the creditor should allow 30 days before starting proceedings once the Letter of Claim has been sent. In order to counter this, some creditors may consider sending out their Letter of Claim earlier than they would have previously done.
There is a risk that the debtor's Reply Form, with its many various boxes to be ticked, may be confusing, although straightforward language is used. Further, by having as an option a tick box which states that the debtor disputes the debt, it has also been argued that the Reply Form may encourage more debtors to dispute the debt than would have done. In addition, the option to ask for extra information and documentation may also encourage delay and further disputes. At the very least, it is likely that the process will require additional rounds of correspondence with debtors, to ensure that the Protocol is complied with, before legal proceedings are commenced.
It is likely that this new Protocol will mean that creditors will have to adjust their processes, which will be more onerous. If you require any assistance or have any questions on this Protocol please contact us.
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