Home > How to recover a trade debt

11 January 2022

How to recover a trade debt

SHARE

For more information on how we can support you in the recovery of a trade debt contact our company commercial Law team today on 01284 767766.

Most, if not all, businesses will need to pursue an unpaid invoice at some time. This checklist highlights the advantages and disadvantages of the main options available to your business when trying to recover a modest trade debt.

Court proceedings

There are several points you should consider before starting court proceedings:

  • Conduct a cost/benefit analysis before initiating proceedings. Make sure you factor in the cost of enforcement.
  • Be cautious about starting proceedings if you do not intend to see them through. You will almost certainly be liable for the other party’s costs if you discontinue your claim.
  • Be careful about threatening to start formal recovery proceedings if you do not intend to do so. The other party may call your bluff.

Remember that your recovery of costs will depend on:

  • When the matter is concluded (whether before or after proceedings have been commenced).
  • The financial value of the claim and consequently the track the claim is allocated; and how the claim is concluded (whether by agreement or at trial).

Insolvency proceedings

Your business may be able to recover a debt from a company by either:

  • Threatening compulsory liquidation (also known as winding up) by the court.
  • Serving a statutory demand.

However, you should be wary of threatening to start formal recovery proceedings if you do not intend to do so. The other party may call your bluff.

What is a winding-up petition?

  • The threat of starting winding-up proceedings can put considerable pressure on a company to pay an outstanding debt promptly and the basic procedure is relatively inexpensive. However, these proceedings should generally be regarded as a last resort.
  • The court requires a creditor to behave reasonably before starting winding-up proceedings and, in particular, to write to the company with details of the debt and demanding payment.
  • It is an abuse of process to issue a winding-up petition if a debt is genuinely disputed.

What is a statutory demand?

A statutory demand is a written notice in a prescribed form demanding payment of a debt owed by a company to one of its creditors. There are a number of advantages of serving a statutory demand:

  • Preparing and serving a statutory demand is quick and inexpensive.
  • The process does not involve the court.
  • If a creditor serves a statutory demand, they are not obliged subsequently to commence winding-up proceedings.

Reaching a settlement

It almost always makes sense to consider informal methods of recovering a debt (for example, using negotiation or mediation) as they can provide the quickest and simplest solutions. You should also think about the disadvantages associated with litigation. For example:

  • Litigation can be disproportionately expensive to the sums being argued about.
  • The outcome of litigation is uncertain.
  • The court is only able to offer a limited range of remedies.
  • The parties often destroy any prospect of resuming a commercial relationship.

Negotiation

Negotiation is a dialogue intended to resolve a dispute and produce agreement on a future course of action. One way in which a trade debt might be recovered is by opening a negotiation with the debtor. This can be done verbally (through a telephone call) or in writing (for example, by e-mail).

Mediation

Mediation is a flexible, voluntary and confidential form of dispute resolution in which a neutral third-party assists parties to work towards a negotiated settlement of their dispute. The parties retain control of the decision whether or not to settle and on what terms.

The without prejudice rule

Parties usually negotiate on a without prejudice basis. This rule generally prevents statements made in a genuine attempt to settle an existing dispute (whether made in writing or orally) from being put before the court as evidence of admissions against the interest of the party which made them.

Doing nothing

Your business can always simply write off the sum that you are owed. Before taking this step, you should consider the:

  • Size of the debt.
  • Likely cost of recovering the debt.
  • Importance of the current relationship between the parties.
  • Likelihood of maintaining an ongoing commercial relationship between the parties.

If you are considering your options for trade debt recovery our solicitors can provide you with astute legal advice and ensure you understand the potential risks and rewards linked to the process. We represent and support businesses across London, Suffolk, Essex, Cambridgeshire, Norfolk and the country and are experienced with all matters of Company Commercial Law. For more information on how we can support your business get in touch with our team today on 01284 767766.

Related Expertise

Please note this article is provided for general information purposes only to clients and friends of Atkins Dellow LLP. It is not intended to impart legal advice on any matter. Specialist advice should be taken in relation to specific circumstances. Whilst we endeavour to ensure that the information in this article is correct, no warranty, express or implied, is given as to its accuracy, and Atkins Dellow LLP does not accept any liability for error or omission.

© Atkins Dellow LLP 2022

More Insights

Company Formation

Company Formation

SHAREFor more information on the process of incorporating your business and the type of business you should be contact our Company Commercial team today to discuss your options 01284 767766.Company formation or company registration is the process of...

read more
Selling a Business

Selling a Business

SHARELegal issues to consider This checklist sets out the legal issues to consider when selling a business. You should always take legal advice at the start of any sale. If you would like further advice on selling a business and the process or...

read more
Contract Negotiations: Key Issues

Contract Negotiations: Key Issues

SHAREContract Negotiation ChecklistOur Business Law team have experience dealing with complex commercial contracts and negotiations. Contact our team today to discuss your situation in more detail on 01284 767766.This checklist highlights the key...

read more

We’re here to help