Understanding our Legal Process. How to get the most out of your Invoice Finance facility

Transcription

1 Understanding our Legal Process How to get the most out of your Invoice Finance facility

2 Contents 1. Key Aims Page 3 2. Dispute Resolution Team Page 4 3. Key Stages in Dispute Resolution Pages Costs of Undefended Litigation Page 8 5. Disputed Debts Page 9 (i) Defended Cases Allocation Page 10 (ii) Costs of Defended Litigation (England & Wales) Page 11 (iii) Additional Fixed Costs Defended Litigation Page Litigation outside of England & Wales Page Costs of Litigation (outside of England & Wales) (i) Northern Ireland Page 14 (ii) Republic of Ireland Page 15 (iii) Scotland Page Communication Page Dispute Resolution Flow Chart (England & Wales) Page 18 2

3 KEY AIMS The aim of this guide is to provide information to clients regarding the process for recovering debts through legal action. It details the costs you may incur, the likely timescales for the legal action and what you can expect from us. It also explains what we need you to do in order to obtain the best possible outcome. By referring a case for legal action, we are hoping to: Encourage prompt payment a) Initial contact with customer by letter and/or telephone. b) Initial gentle approach to avoid undermining client customer relationship. c) Litigation and/or Alternative Dispute Resolution if necessary. Simple and cost effective resolution a) Updates via the internet, in writing or by telephone. b) If we request information or documents, please respond as soon as you can. c) If you negotiate directly with the customer, please notify us. d) The online litigation diary shows you the up to date position on collection activity (with at least monthly updates). e) If the litigation diary does not address your query, please contact us. f) Our aim is early, satisfactory and cost effective resolution. This guide summarises the processes followed and costs that may be incurred in pursuing outstanding debts. 3

4 Dispute Resolution Team HSBC Invoice Finance has an established recovery and dispute resolution operation. This includes a dedicated team of solicitors, legal executives and paralegals who specialise in commercial debt recovery. The legal team is part of HSBC Bank plc, Legal Department, Litigation and is a dedicated inhouse resource. Our legal team has the advantage of having the same systems as HSBC Invoice Finance making the transition from credit control to legal action simple and swift. For further information on the full dispute resolution service provided by our legal team, please contact your Invoice Finance Manager or controller. The legal team for HSBC Invoice Finance is managed by Adam Wilson and the contact details for the team are: HSBC Bank plc, Legal Department, Litigation 12 Calthorpe Road Edgbaston Birmingham B15 1QZ Tel: (you will be advised of the telephone contact details on an individual basis) Fax:

5 Key Stages in Dispute Resolution Solicitor s Letter a) Prior to referral to our legal team, a letter is sent giving notice of proposed legal action. If no response is received, we will advise you that we intend to refer the matter for legal action and that a Solicitor s letter will be issued. b) A Solicitor s letter is then sent, making it clear that our legal team are instructed to commence legal action unless payment is made. It informs customers that further costs and interest will be added if payment is not made. It will make it clear that legal proceedings will be issued without further notice in the absence of payment or satisfactory proposals. Legal Action a) If there is no satisfactory response to the Solicitor s letter, we will inform you via the internet that legal action will follow to recover the debt. If you instruct us that you do not wish legal action to commence then a credit protected debt is likely to become unprotected. Ordinarily, the debt would then be reassigned to you for you to collect direct. b) You may be asked for additional information, such as to verify that the debt is due or the name of the debtor. You should provide information requested as soon as you can. If you are unable to assist, this may delay or prejudice the Dispute Resolution process which may result in a credit protected debt becoming unprotected. This generally occurs when the debt is 60 days overdue. c) You will be notified via the litigation diary when the case has been received, when legal proceedings are commenced and a point of contact will be provided for each individual case. d) Our legal team will consider alternative dispute resolution with you including negotiation, mediation, arbitration, expert determination and adjudication in construction disputes. They will also provide you with an estimate of the likely costs. Pre-action Protocols a) Our legal team are required to act reasonably in the exchange of information and documents relevant to a claim prior to issuing proceedings. b) Therefore, it is important to provide a reasonably detailed letter of claim and voluntary early disclosure of relevant documents where appropriate. It is also important to give proper consideration to alternative forms of dispute resolution to avoid court proceedings. c) Failure to comply with pre-action protocols can result in cost sanctions, lost interest on the claim, or penalty interest against any defending party. d) Our legal team can provide specialist advice on technical and non-routine forms of dispute resolution. Issuing Legal Proceedings a) Our legal team issue undisputed claims at the Northampton County Court Bulk Centre, which is quicker and cheaper than other courts. 5

6 b) Legal proceedings are commenced by issuing a claim form, which will detail the debt and a claim for interest from the due date of payment. c) The claim form is served by the Court upon the debtor. d) Following service, the debtor has 14 days to reply and may pay the debt, admit the debt and make proposals for payment, dispute the debt or fail to respond. e) The debtor can also acknowledge service, which extends the timescale for full response to 28 days from the date of service of the claim form. Judgment a) If the debtor admits the debt or fails to respond, our legal team will enter Judgment. b) The Judgment may be for immediate payment or by instalments. c) If the debtor makes unacceptable proposals to pay by instalments, our legal team can object to the rate/time for payment and the Court will assess that objection. d) If Judgment is obtained and payment is not made in accordance with the terms of the Judgment, our legal team will proceed to enforce the Judgment. Enforcement a) Our legal team will provide tailored advice on enforcement options. b) Where the debt is under , a Warrant of Execution is routinely issued under which a Bailiff is instructed to seize the debtor s goods to satisfy the debt. c) Where the debt is over , a High Court Enforcement Officer (HCEO) can be instructed to visit the debtor to recover the monies due. The officer will obtain payment in full or negotiate repayment or may seize goods and sell them. d) Other enforcement options can be considered including bankruptcy, charging orders, winding up petitions, third party debt orders, attachment of earnings and applications to have debtors questioned by the Court as to their means. e) The majority of debts are recovered early on in the legal process or shortly after obtaining Judgment. If enforcement action is required, please bear in mind that any enforcement can take a number of months following Judgment being obtained. 6

7 Fixed Costs of Undefended Litigation Amount of Debt Up to Judgment Claim Fee Solicitor s fixed Costs Judgment & Enforcement Judgment Costs Enforcement Costs Solicitor s fixed Costs HCEO s Costs Total , , Costs correct as at 1 st July These charges will not apply in the following situations: Where your customer disputes the debt For any other types of enforcement Actions outside England and Wales Alternative dispute resolution processes Please note: A further HCEO charge may be incurred should attendance be made at an alternative address These charges do not take into account fees in respect of tracing debtors There are additional fees payable in respect of alternative enforcement options such as charging orders, winding up petitions, third party debt orders, attachment of earnings and applications to have debtors questioned 7

8 Disputed Debts Our credit management process is intended to reveal disputes and resolve them before issue of legal proceedings whenever possible. Disputed debts can be expensive and time consuming to resolve and every effort should be made to negotiate a solution before commencing legal proceedings. If you are aware of or hold information, which will impede full recovery of the debt, you must let us know immediately. If a dispute is known, we are likely to ask you for all documentation and correspondence which may assist in proving the claim. If a dispute becomes known after legal proceedings have been issued, and the claim is worth less than 10,000.00, we will seek to recover interest and fixed costs in addition to the sum due from your debtor. If the claim is worth over 10,000.00, we will seek to recover the full costs incurred on litigation (although recovery of costs is at the Court s discretion). Any dispute raised by a debtor renders the debt unprotected until the dispute is resolved. Once legal proceedings have been issued, a defence will have to be served if the debt is disputed and should be served within 14 days of service of the claim form or within 28 days if the debtor acknowledges service in the meantime. It is possible that any defence may also include a counterclaim for damages or seek to set off its own claims against monies owed in respect of the debt. 8

9 Defended Cases Allocation After the debtor has filed a defence, a directions questionnaire is issued to the parties by the court. Parties are required to complete the directions questionnaire confirming any intention to seek a stay of court proceedings to attempt to resolve the dispute, the names of lay or expert witnesses and details of costs to date plus projected costs through to trial. You may be asked for information to assist our legal team in completing the directions questionnaire. The court will then allocate the claim to a track, and set directions for trial. Small Claims Track Generally used for claims where the amount in dispute is less than 10, Strict rules of evidence do not apply and usually only fixed costs are awarded to the successful party. As in any case, it will be for you to prove the claim by producing sufficient evidence, both oral and written to satisfy the Court that the claim is valid 14 days before the trial date. A witness of fact will need to attend the trial and you will need to provide the name of an individual that will attend in this capacity. Fast Track For claims where the amount in dispute is between 10, and 25, A directions timetable will be provided which normally ensures that a trial of the disputed claim takes place within 6 months from the date of service of the defence. It will be important to comply with the directions timetable, which will include directions regarding disclosure of documents and exchange of witness statements. Multi-Track For cases where the amount in dispute is over 25, There will be a tailored set of directions and potentially interim hearings to agree further directions to progress the matter towards trial. In both fast-track cases and multi-track cases, a trial will be held in open court with legal representation. As the costs of a full trial can be high, a negotiated settlement may often be the more cost effective option. Our legal team will advise on litigation strategy and negotiations throughout. Costs of Litigation We will be responsible for any dispute resolution costs incurred in recovering credit protected debts which are not disputed. Costs incurred to recover the unprotected portion of the debt will only be charged to you if the costs cannot be recovered from your customer. An unprotected debt is a debt which is not subject to credit protection. This includes first loss, which will not be subject to credit protection, despite being within a credit protection limit. Debts which are disputed are also unprotected. 9

10 Costs of Defended Litigation (England & Wales) Our legal team s time is charged at a rate of per hour on a time spent basis. This rate is significantly below market rate for a commercial law firm and therefore represents excellent value for money for provision of legal services. You will be provided with an estimate of costs and kept up to date. If the customer disputes the debt, you will be charged with the cost of dealing with the defended legal proceedings on a time spent basis. However, assuming success, the costs that we have incurred will be shared with you subject to the proportion of the protected/unprotected split of the debt at the time the debt was passed to us. Success is obtaining Judgment, a formal agreement to pay or a payment from the debtor. An example of the calculation of the protected/unprotected split of a debt: If you wish us to collect 50, from a debtor, and you have a protected credit limit of 40,000.00, but a first loss of 1,000.00, 39, of the debt is protected. Therefore, the 50, debt will be 78% protected, and 22% unprotected. Assuming success, you will only be charged 22% of the costs we incur. If we recover any costs from the debtor, we will share the costs recovered with you subject to the proportion of the protected/unprotected split of the debt. If we recover interest from the debtor, we will share all interest recovered over again subject to the proportion of the protected/unprotected split of the debt. In addition to the fixed costs referred to overleaf, our legal teams costs through to a final hearing/trial are estimated as follows: a) Small Claims: not less than 1, plus VAT b) Fast Track litigation: not less than 4, plus VAT c) Multi Track litigation: not less than 5, plus VAT Note this is a preliminary estimate but all defended cases are different and dependent on the nature of the issues in dispute, costs can vary quite dramatically. We will seek to update you regularly on costs estimates. You should note however that many cases are settled before trial, and where a standard charge does not apply, our legal team will charge purely on a time spent basis. 10

11 Additional Fixed Costs - Defended Litigation In addition to the fixed costs associated with issuing proceedings there are further fixed costs, which are payable to the Court throughout the life of the Claim: Allocation to track Small Claims Track (where the claim is more than 1,500) 40 Fast and Multi Track Claims 220 Pre-Trial Checklist and Hearing fees Pre-Trial Hearing Checklist fee Small claims Track where the amount claimed is: up to between and between and 1, between 1, and 1, between 1, and 3, more than 3, Fast Track Claim Multi Track Claim 110 1,090 General Applications Application on notice where no other fee is specified 80 Application to set aside a County Court Judgment 80 Application by consent or without notice 45 Application to vary a judgment, suspend enforcement or suspend a warrant of possession 40 Application for a summons or order for a witness to attend 40 Costs correct as at 1 st July There are further disbursements due 11

12 Litigation outside of England & Wales Usually, our legal team pursue a foreign debtor in their own country s courts as that court will have the power to enforce orders made against the foreign debtor. In certain cases, it may be possible to show that the English courts have jurisdiction over a claim against a foreign debtor (eg through an exclusive jurisdiction clause), which means that proceedings can be commenced in England & Wales. If this is the case, any judgment for the debt obtained will usually need to be formally recognised and enforced in the foreign debtor s country. Our legal team deal with debts in the jurisdictions of Scotland, Northern Ireland and Republic of Ireland regularly and we have experience of pursuing debts across the European Union and worldwide. In addition, our legal team have access to a worldwide network of law firms who are able to pursue debts at preferred hourly rates. As with claims in England & Wales, we will provide you with a monthly update on progress via the litigation diary. As with claims in England & Wales, we will be responsible for any dispute resolution costs incurred in recovering credit protected debts which are not disputed. If the customer disputes the debt, you will charged with the cost of dealing with the defended legal proceedings on a time spent basis. Again assuming success, the costs that we have incurred will be shared with you subject to the proportion of the protected/unprotected split of the debt at the time the debt was passed to us You will also be provided with the contact details for a member of the team who you can telephone to discuss your case further as necessary. Set out below is costs information in respect of Northern Ireland, Republic of Ireland & Scotland. 12

13 Costs of Litigation (Northern Ireland) These fees will apply in the jurisdiction of Northern Ireland: Pre-Action Letter: 50 Undefended Claims in the County Court to Default Judgment (up to 30,000): Issue: 250 plus court fee Judgment: 250 plus court fee Defended Claims in the County Court (up to 30,000) 95 per hour plus disbursements up to a capped limit of: Solicitor Counsel < , ,001-12, ,501-15, ,001-20, ,001-25, ,001-30, Undefended Claims in the High Court (over 30,000) Issue: Judgment: 250 plus court fee 250 plus court fee Defended Claims in the High Court (over 30,000) 95 an hour on a time spent basis. Enforcement Statutory Demand: 150 plus service fee Bankruptcy 750 plus 150 court fee, 700 deposit, service fee, 150 counsel fee Winding Up 750 plus 150 court fee, 1165 deposit, service fee, 150 counsel fee Bailiffs are available but the process is time consuming. Costs correct as at 1 st January 2014 All costs will be subject to VAT with the exception of certain disbursements 13

14 Costs of Litigation (Republic of Ireland) These fees will apply in the jurisdiction of Republic of Ireland: Pre-Action Letter: 30 Undefended Claims to Default Judgment: < plus court fees of plus court fees of 175 > plus court fees of c 325 and c 100 for service Defended Claims 100 per hour on a time spent basis Enforcement 100 per hour on a time spent basis plus: Sheriff s Office 19 Registering in the High Court 35 Judgment Mortgage Instalment Order 35 Bankruptcy/Liquidation are available but are expensive and not often used. Costs correct as at 1 st November 2011 All costs will be subject to VAT with the exception of certain disbursements 14

15 Costs of Litigation (Scotland) These fees will apply in the jurisdiction of Scotland: Pre-Action Letter: 20 Undefended Claims to Default Judgment Solicitor Court Fee Sheriff Officer < > Non-standard Undefended Rate 100 per hour Defended Claims 150 per hour Enforcement Charge for Payment 30 Property/Personal search 40 Company Search 30 Inhibition 90 plus court fees, Sheriff Officer approx* Attachment/Exceptional 50 plus Sheriff Officer fees -% of value of Attachment goods* Earnings Arrestment 50 plus Sheriff Officer s fees Sequestration 600 plus Sheriff Officer s fees Liquidation 600 plus Sheriff Officer s fees Costs correct as at 1 st May 2013 All costs will be subject to VAT with the exception of certain disbursements *Does not include attendance at court hearing, which will be charged at Defended Hourly Rate. 15

16 Communication You are encouraged to view the litigation diary for general updates. In appropriate cases, our legal team will also keep you up to date by letter or telephone. You should always feel able to contact our legal team by letter, telephone or whenever an issue arises. Our legal team aim to provide you with as much information as possible so that you can assess progress. Our legal team are bound to follow Court procedures but we are committed to providing the best possible service and are happy to hear from you with any feedback or suggestions. 16

17 Dispute Resolution Flow Chart (England & Wales) Final Demand Payment Solicitor s Letter No Response Proposals for Payment Are the proposals acceptable? If yes, agree terms for payment. If you instruct against legal action, debt reassigned Pursue Legal Action If not Consideration given to alternative dispute resolution Comply with pre-action protocols before issuing a claim Issue and service of court proceeding Payment Proposals for Payment Part-admission Defence No Response Acceptable? Acceptable? Request Judgment If yes, agree terms If yes, request Enforce Judgment and agree payment terms If not, request Judgment If not, reject and treat as defended Claim Enforce Pursue to trial through Court directions If successful, obtain Judgment Enforce