Debt Collection Facts
Sunday, July 18th, 2010Debt Collection Facts
This article is
intended to be a brief general guide only and should not be used or relied on
as a complete or authoritative
source of legal information.
INSOLVENCY PROCEDURES
The insolvency procedures open to a creditor are a powerful
tool in recovering debts. Whether the debtor is a company or an individual, an
intelligent application of the insolvency rules can enable a creditor to obtain
payment of their debts without the need for protracted and costly litigation.
The insolvency rules can be used for a broad range of debts
exceeding 750 provided that the debt is not genuinely disputed by the debtor.
Insolvency procedures however can be a high risk strategy and one needs to be
very careful in using these procedures. There are substantial adverse cost
consequences where the procedure is incorrectly used.
GUARANTEE
It is often the case that debts that are difficult to
collect from the debtor company are as a result of inadequate checks being made
as to the financial strength of the company when the contract was entered
into. It is therefore essential that you should check the credit rating of any
potential new customer or client and where there is concern as to the ability
of the company to make payment for goods or services supplied, then you should
obtain a guarantee either from a parent company of sufficient financial
standing or an individual to ensure performance of the contract.
It is essential that any guarantee is documented in writing
and clearly places the guarantor under a binding and contractual obligation to
meet the liabilities of the company or individual if they default in meeting
their contractual obligations. It is essential that the wording of the
guarantee is well drafted as the courts tend to construe the terms of a
guarantee strictly and will only find that there is a third party liability if
it is quite clear from the wording of the guarantee.
INTEREST
Where a debtor has failed to pay you monies for goods or
services supplied, it is normal to charge interest for late payment. Interest
can be charged either in accordance with your terms and conditions of business
provided your terms make provision for this or, alternatively, you can apply
the Late Payment of Commercial Debts (Interest) Act 1998 which allows you to
claim interest on overdue accounts. If the contract with the debtor predates
7th August 2002, then businesses that are eligible to charge interest can do so
at a rate of 8% above the Bank of England base rate that was in place on the
day the debt became overdue. For contracts dated on or after 7th August 2002,
all businesses can charge interest at a rate of 8% above the late payment
reference rate.
The Bank of England base rate on 31 December, is the reference rate
for debts becoming overdue between 1st January to 30th June each year.
The Bank of England base rate on 30 June, is the reference rate for
debts becoming overdue between 1st July to 31st December each year.
RETENTION OF TITLE
A well drafted set of terms and conditions of business will
include a retention of title clause. The effect of such a clause enables a
seller of goods to retain ownership of the goods supplied until payment has
been received in full. This can be of great value where the purchaser of the
goods supplied becomes insolvent.
There are various types of retention of title clauses but
the essence of a well drafted clause means that a seller will have added
protection in the event of failure by the purchaser to comply with their
contractual obligations and pay for the goods ordered. In particular where a
buyer subsequently goes into liquidation after acquiring stock which is subject
to a retention of title clause, then the seller of the goods may be able to
obtain the return of the goods notwithstanding the fact that the buyer has gone
into liquidation.
A carefully drafted retention of title clause is a powerful
tool to assert ownership rights and recover property. They can however be
complicated and need careful consideration.
TERMS AND CONDITIONS OF BUSINESS
One of the major reasons that clients have difficulty in
recovering their debts is because they either have inadequate terms and
conditions of business or they in fact fail to have any written terms and
conditions of business.
Although terms and conditions will vary from one business to
another and from one industry to another, certain key areas are common to all
businesses and need to be addressed in your terms and conditions. Your terms
and conditions should :-
- Ensure that the customer or clients details are correctly shown.
- Make clear whether you are dealing with an individual, a
partnership or a limited company.
- Set out what services or goods you will be supplying.
- Clarify when payment is due.
- Make provisions to protect you if for good reason you are unable
to supply the goods or services or only part deliver the goods or services or
if faulty goods or inadequate services are provided.
- Ensure that you retain ownership of goods until payment in full
is received.
- Make clear any additional charges that may be payable if the
customer or client fails to pay in accordance with the payment terms. In
particular the right to claim interest and the right to claim for collection
costs and solicitors fees should be clearly set out in the terms and conditions.
- Ensure you comply with all statutory
requirements.
A well drafted set of terms and
conditions will make collection of a debt substantially easier.