The Pre-Action Protocol for Debt Claims (“PAP”) is part of the Civil Procedure Rules which govern how parties deal with litigation claims through the County Court. This is the first time that pre-action on a debt has been specifically covered in the rules.
Does it affect me?
If you are a business that ever has to chase any of your customers for payments then quite possibly yes. The PAP sets out specific rules that you must follow if you intend on taking any of your customers to Court for non-payment of debt.
However, the PAP is not all-encompassing. If you are chasing a limited company or partnership then you can ignore the PAP. You can also ignore this PAP if the type of debt you are pursuing already comes under another protocol such as Construction. However, if you are chasing an individual or a sole trader that you intend to sue then you must comply with the PAP.
How do I comply?
The first thing you must do is send a Letter before Claim to your customer. This should include basic information such as the amount of the debt and your address plus details of the oral or written agreement that you are chasing them in relation to and, if relevant, why you are refusing to accept an instalment plan they have offered you. A statement of account should be included with the letter or an explanation as to how you have calculated any additional interest and charges that have been added to the debt. Three other documents must be attached to the letters which are an Information Sheet, Reply Form and Financial Statement.
What happens next?
Once the letter and attachments have been sent, you must wait 30 days for your customer to respond. If there is no response you can sue them.
If they do respond then various time restraints come into play:
- They ask for information and copy documents – you must respond to the request within 30 days and then wait another 30 days before you can sue.
- They are seeking debt advice – you must wait 30 days for them to take advice and respond to you with the outcome.
- They ask for time to pay – you must try to come to an agreement which is reasonable based on their income and expenditure. If an agreement cannot be reached you must write to inform them of this and give 14 days notice of your intention to sue. If an agreement is made and the customer subsequently defaults then the PAP process must be started from scratch.
- They provide a partially completed Reply Form – you should contact them for more information so that you can fully understand their position.
- They dispute the debt – you should exchange information and documents with them to try to resolve the dispute. If this cannot be resolved you should explore the possibility of alternative dispute resolution such as mediation.
What if I ignore it?
At this stage, it is impossible to know how tough a line the Court will take with non-compliance but it would be unwise to test the Court on this. If your claim proceeds to litigation, the court will expect you to have complied with the PAP. If you have not complied then the Court could sanction you by staying the claim until you do comply and could punish you heavily in terms of costs by ordering that you pay both sides’ costs of the proceedings regardless of the outcome of the claim.
Do not panic! Our experienced debt recovery team has anticipated these changes and has processes in place to make everything very easy for our clients. We can prepare Letters before Claim and ensure you comply with the PAP. We also provide our services at very reasonable fixed rates.