Debt Recovery

We offer a Fixed Fee Debt Recovery Service for use by Claimants or Defendants in connection with money claims (other than undisputed business debts).

This service is available in relation to money claims which fall within the small claims track limit. The small claims track limit is £10,000 - or £1,000 for housing disrepair claims.

Download our information sheet here.

Disputes are an unwelcome part of life. Distracting, at best; Draining, at worst.

While high-value, complex and costly disputes are well-known for the challenges they present, there can be real issues at the other end of the scale too. Small claims – defined as money claims worth less than £10,000 – can present their own problems for individuals and businesses.  Here’s our guide to using small claims to your advantage.

UNDERSTAND THE SMALL CLAIMS TRACK

If you are owed money then you may have to go through a process of asking for it nicely, demanding it, and then getting the court to help you recover it.

There are different mechanisms for bringing civil claims. If you are owed less than £10,000 and are just asking to be paid the money, and are not looking for some other remedy, then the Small Claims Track is for you.

There are some things you need to know about small claims. The first is that you probably don’t need our help – at least not as much help as you would if you were issuing a different sort of claim. Part of the reason is that small claims tend to be pretty straightforward. They are generally your word against your opponent’s, backed up by a file of papers. There aren’t usually legal arguments, and the system is designed for people to represent themselves in court and to quickly recover what they are legally owed.

That leads on to the other important thing about small claims: you can not recover your costs from your opponent. You may have heard of losing parties having to pay thousands of pounds to cover the winner’s legal costs. That doesn’t happen in small claims. Here each party bears their own costs, apart from court fees and some expenses which you may get back if you win. That’s why, more often than not, lawyers aren’t asked for much advice and representation along the way. Where we come into it – and where we can really make a difference – is in the initial stages; advising on the legal basis of a claim, giving guidance on drafting claims and defences, and helping with strategy and process.

KNOW WHO YOU ARE

The person bringing the claim is the “claimant”. The other party is the “defendant”. Sometimes there can be more than one defendant, and it is really important to think very carefully about this before issuing a claim.

Make sure you are suing the right person and that you include everyone you should. Companies often have trading names which are different to their official legal names (and it is the legal name you’ll need to set out in the paperwork). So you will need to search Companies House to get these details right on your claim form.

Also, although you may think that your debt is owed by an individual, think about whether that person has been acting in their capacity as a director of a company. If they have been, then perhaps it is the company, rather than the individual, that is the proper defendant.

All names and contact details given in your claim form need to be correct. Once you send your claim form to the court, it will then be issued to the person at the address you have specified – so it is critical that the information you give is right. The court will also need your name and address to be correct so that it can be sure that you are the right claimant, and so that you can receive important correspondence.

WORK OUT EXACTLY WHAT YOU ARE OWED

You will need to state on your claim form the specific amount of money you say the defendant owes you, and why. Sometimes this will be obvious. Other times, you will need to do some calculations to work out your actual losses. You will also need to take account of rules on what can and can’t be recovered. For example, where you have provided services to another company and your invoice hasn’t been paid, any VAT included in that invoice should be claimed from the defendant as well. However, if you had been promised the opportunity to provide services but had not actually done so, your claim would be for the loss of profits alone (no VAT).

WHEN TO START A CLAIM

Not too soon and not too late. Helpful? In all seriousness, judging when to issue a claim can be tricky. Because court proceedings should always be the last resort, you will need to make sure that you have tried as hard as you can to get your opponent to pay up before issuing a claim. That means talking to them, writing to them, and making sure they know exactly what you say they owe.

The Court will always encourage parties to set out their claim in writing and give the other a proper opportunity to respond before starting legal action.

Share information and disclose any relevant documents before issuing your claim – it could help bring matters to a close. Also explore Alternative Dispute Resolution methods like mediation which involve impartial third parties working with you to resolve the dispute.

Take a look at the ‘Practice Direction on Pre-Action Conduct’ on www.justice.gov.uk before you start Court proceedings – you will need to comply with it.

Remember too, that strict time limits apply to issuing claims and so you will need to carefully check the deadline for yours.

WHERE TO ISSUE YOUR CLAIM

You will start your claim by filling in an N1 Claim Form. You should be able to pick one up from your local county court or download it via the Ministry of Justice website: hmctsformfinder.justice.gov.uk You will also find a service called Money Claims Online that allows you to issue a claim via its website: www.moneyclaim.gov.uk

A fee will be payable when you issue the claim, and further fees kick in as the claim progresses. The Court fee for starting claims through the Money Claim Online service is lower than the paper-based version.

GET YOUR PARTICULARS RIGHT

The claim form will ask you to summarise what you are owed and why.  This is known as the Particulars of Claim. Remember that the court has no background information about you, your business or circumstances and so will rely entirely on the information you give here.

Setting out your claim logically and coherently will improve your chances of success. For example, if you believe that there was a contract for you to provide services to the defendant, make sure to specify:

  • how that contract was formed
  • which terms of the contract you are relying on
  • how you believe you have fulfilled your obligations under the contract
  • how the defendant has failed to fulfil their obligations.

It is not enough just to say that you have an unpaid invoice. You need to be clear about why you believe that the defendant should pay that invoice.

GET YOUR WRITING RIGHT

Every communication you have with the court – from your claim form, to your letters, to the way you present your case – is a reflection on you and your claim. The best types of claims are those which are expressed clearly, in a business-like and professional style.

The dispute may be personal, and you are likely to be frustrated, but the court is looking at the legal merits of your claim and not at what a dreadful person you say the defendant is. It really pays to understand the legal basis of your claim, what you need to prove and to stick to the point. Judges have a fair degree of patience and understanding but the more focused you remain on what really matters, the easier the ride will be.

GET TO GRIPS WITH THE PROCESS

Once the court has sent the defendant your claim form, you will need to wait for a response. There are four ways this could go. The first is that you hear nothing within the 14 day timescale; if that happens you can apply to the court for a judgment against the defendant which means they will be forced to pay up. The second possibility is that the defendant files an “Acknowledgement of Service” within 14 days and they then have another 14 days in which to file a defence. The third possibility is that they confirm that they will accept all or some of your claim. The final possible course of action is that they file a defence at court. That is a brief explanation of why they dispute your claim.

If the defendant files a defence, it is a good idea to consult a solicitor to advise on the process and ways of winning your claim. The court will ask you to do certain things – like file witness statements - at certain times before the final hearing, and it is important to meet these deadlines. You will have some say in these steps by completing a “Directions Questionnaire”.

Depending on how the defendant has responded to your claim form, the court may grant your claim in full or set a date for a hearing, at which you and the defendant may be asked to give evidence and put your case forward.

GET YOUR EXPENCES READY

If you win your claim, the judge will make an official order that the defendant must pay you a certain amount of money within a certain time period, often one month. This amount can include expenses such as your court fees, reasonable travelling expenses, the cost of staying overnight if relevant, and up to £90 for loss of earnings if you had to take time off to attend court.

If you lose your claim, you may be ordered to pay some or all of the defendant’s expenses.

DECIDE HOW FAR TO PUSH IT

Winning your claim doesn’t necessarily mean you will see your money. The defendant might refuse, or be unable, to pay. If that happens then you will need to decide whether to pursue this further or to write off the debt.

That decision usually hinges on cost. Forcing someone to hand over money can be difficult and expensive, but you might feel it is worth it if you are owed a significant amount of money or you are happy to pay out of principle. But if the defendant hasn’t actually got the money to pay you, it may be that there’s little point taking things any further.

This is the sort of issue we will be able to help with; our litigation and insolvency lawyers are used to advising on situations in which debtors are reluctant or unable to pay. Talk to us about our debt recovery service.

Contact our experts for further advice

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