Dear Chaser, I'm having trouble getting paid...

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What Can I Do About Phoenix Companies?

Submitted 30/05/19 by Ed Brown

I worked freelance at a medium-sized branding agency in London a handful of times over a couple of years. The last time I was there was just for two days, and the invoice for that time went unpaid. Several contacts at the company stopped returning my emails, despite the outstanding sum only amounting to £600. Eventually it had transpired that the company owner, being slippery, had dissolved his own company and then re-bought the rights to trade under the same name with a brand-new limited company - the so-called 'Phoenix company' trick. This liquidation and re-purchase took place within a single 45-minute long meeting. Staff were made redundant and some re-employed under the new limited company.

All of his creditors went unpaid, and a liquidator was called in to assess who would be paid on a sliding scale of importance. I have received several letters from the liquidators who helped Mr Slippery enact this process, and the legal process is probably being stretched out to weed out less tenacious creditors from recovering what they are owed. I wasn't a supplier - I was a temporary contractor, so I feel I have precedence over the people that supplied the printer ink.

What can we do about phoenix companies?
Thanks,

Ed Brown

Chaser's Response:

Legal Notice: As a representative of Chaser I provide this advice on the understanding that you will consider the consequences of your chosen actions. Neither Chaser nor any Chaser employee will be liable on any basis for the consequences of your use of it.

Ed,

Thanks for this. Phoenixing is a pet hate of mine. I think as a business owner you have a responsibility to your creditors and shouldn't be moving onto your next venture without seeing that those people are taken care of. Not everyone is so honest, unfortunately.

It's interesting that you mentioned they "re-bought the rights to trade under the same name". Section 216 of the Insolvency Act, 1986 states the following:

• If a company has entered insolvent liquidation, the name it was known by at the date of liquidation, and during the previous 12 months, becomes ‘prohibited’ and cannot be reused

• The same rule applies to any similar name that suggests there is a connection to the liquidated company, those registered with Companies House, and trading names

• These rules apply to company directors, owners, or officers of the company, who open a new business, whether or not it is incorporated, for a period of five years following liquidation

HMRC's website also states:

"In general, anyone who was a director in the 12 months before the company went into liquidation is banned from taking part in the management of another business with the same name."

You can find a good clear summary of this HERE.

Legally, they are allowed to wind up the business and start a new one in a similar industry (but NOT with the same name). It's not massively fair, but it is good to remind ourselves of the risks involved when doing business with limited companies. They're called limited liability for a reason and it's definitely worth credit checking the company and their directors before you enter into any relationships in the future.

In this case, I'd say you have two ways forward, and I suggest pursuing both:

1. Set out a clear case to the liquidators about why you should be prioritised over other creditors. Liquidators have a legal obligation to report any misconduct, so they shouldn't only be acting in the interest of the liquidated company.

2. Report the directors to the Insolvency Service HERE. The Insolvency Service AREN'T allowed to investigate cases of unpaid wages or contractors as technically that company no longer exists. However they are allowed to investigate individuals if they're seen to be breaking the law. Starting another company with exactly the same name, to my knowledge IS breaking the law. So it's worth a shot.

I'm sorry that I can't give you a more definitive solution. When a debt gets to this stage by design it does get a little more tricky. Let me know how you get on and if you have any other specific questions!

"My biggest client never pays on time... help!"

Submitted 17/05/19 by Steve

I run a small agency, and at the moment, we’re really struggling with cash flow. We depend on one large client for the majority of our monthly cash flow, but we are unable to rely on the payments coming in regularly. This is because the client is very big, with many complexities surrounding their invoicing process.

We’re such a small team, and the irregular cash flow impacts us greatly. Most months, we struggle to make payroll, and predicting cash flow is an impossibility!

I would appreciate your suggestions on how to manage payments for large, crucial clients.

Thanks

Chaser's response

Legal notice: As a representative of Chaser I provide this advice on the understanding that you will consider the consequences of your chosen actions. Neither Chaser nor any Chaser employee will be liable on any basis for the consequences of your use of it.

Hey, thanks for sending this in.

I had a very similar issue in a previous role so I completely sympathise. It’s always difficult to be so reliant on one customer for your cash flow as you lose a lot of leverage.

Now, obviously I’m not sure from your submission if any contracts have been signed (I imagine with something of this size that there would) but a good starting point would definitely be to review that, as quite often payment terms will be stipulated within most supplier agreements. If they’re not abiding by the terms set out in the contract then it may just be as simple as calling a meeting and somewhere within the agenda kindly bringing this up again. If you offer a little context and humanise your situation you’ll often find even the largest companies will try and be accommodating.

If there isn’t a contract then the right to set payment terms naturally falls to yourself. If there’s a lot of invoices and you’re having issues processing them all in time, it may be worth trying to negotiate a base monthly retainer with them that’s paid slightly in advance and then reconciling the account quarterly. If they don’t agree to extending credit then maybe a standing order or something similar would suit. It’s quite a new way of working but nowadays we see more and more companies moving to a standing order or subscription based model as it reduces the amount of admin on both sides!

I haven't been invoiced! How long can they wait?

Submitted 15/04/19 by Anonymous

Hi,

I'm wondering if you have any blogs or guidance on how late someone can invoice? We have a client who has been requesting an invoice from a supplier for over a year, for a software licence. They have the software licence, but haven't made payment.

Do you know how long the supplier has got to issue an invoice?

Chaser's response

Legal notice: As a representative of Chaser I provide this advice on the understanding that you will consider the consequences of your chosen actions. Neither Chaser nor any Chaser employee will be liable on any basis for the consequences of your use of it.

This is a really interesting one! Largely as it’s wrestling with the opposite problem to that which is common in my world. This person actually WANTS to be invoiced but hasn’t been, which can be a problem in itself, especially if you’re working to budgets or need to file accounts.

The answer is linked to how long you can continue to chase an invoice for after it has been issued. The only regulation placing a time limit on collecting a genuine debt is the Limitation Act 1980. Which states that you can continue to pursue a debt unless more than 6 years have passed without contacting the debtor. The same goes for issuing an invoice, as the transaction has technically been agreed, whilst it is bad form, you’re not required to invoice immediately. Or even for 6 years at that.

With this in mind however if you fail to invoice on time and then when a bill is eventually raised the customer decides to dispute it, you run the risk of damaging your case should you ever wish to request a CJJ in order to exact payment. So best practice is generally to invoice regularly and promptly.

This can also help with your credit control. Good credit control starts with great invoicing and by reducing the amount of time it takes to issue those invoices you also reduce the likelihood that any given invoice will be queried. Send them whilst the conversation is fresh and the person who ordered the product/service is still there to sign it off!

That’s it from me. Really hope that helps and of course keep your questions coming.

New customer goes silent on paying high-value invoice

Submitted 21 Jan 2019 by Anonymous

Hi,

I’m in a bit of a bind with one particular customer. I run a confectionery business and halfway through last year received a sizeable order from an outlet that I hadn’t worked with before. We were communicating fine and on receiving a purchase order, I shipped the order and provided a delivery note.

Fast forward 6 months and after a host of excuses they’ve gone quiet. They won’t answer my calls or emails. I even tried sending a letter. I'm not sure what to do next. I can see online that they’re still trading, which is frustrating, but I don’t think I have the money to take them to court.

What do you suggest?

Thanks,
Anonymous

Chaser's response

Legal notice: As a representative of Chaser I provide this advice on the understanding that you will consider the consequences of your chosen actions. Neither Chaser nor any Chaser employee will be liable on any basis for the consequences of your use of it.

Thanks so much for sending this one in. I'm sorry to hear that you’re in this situation. While it’s uncommon for debtors to go completely quiet, it does happen from time to time. It’s best to always have a credit control procedure written out, no matter the size of the business you're working with, just in case you find yourself in these situations. As part of that procedure, to reduce the likelihood of this happening again, I’d strongly recommend credit checking customers before doing business. The two services I'd recommend for this are either:

• Experian, or
• Credit Safe

To resolve your current situation, I'd first recommend contacting the debtor one last time. Appealing to their sense of decency or finding a different person to contact can help re-ignite the conversation and get the invoice paid. Failing that, applying for a County Court Judgement (CCJ - providing the debtor is UK-based) is the next obvious step.

Although it might not seem like legal proceedings are an affordable option, applying for a CCJ online starts at just £25 (with a full price list available here). Plus, it sounds like you’ve got a solid paper trail, which will definitely help your case.

To file the CCJ you’ll use the government's Moneyclaim Online service. Before you get started you’ll need to find your local county court and have the company name and registered address of the debtor to hand (as per what’s listed on Companies House). The Moneyclaim website explains how to submit the claim quite succinctly and it should take around 30 mins to complete. At the end you’ll be prompted to make a card payment to pay the fees.

You won’t need a stack of evidence unless the defendant makes a counter-claim. When prompted though, include a quick summary of:

• The age of the debt
• The invoice number
• The address and name of the defendant
• Any late fees added

Once submitted, the court will issue a letter to the address that you listed advising the defendant that a court claim has been made against them and that they have 30 days to respond with the attached response form. Once this time has passed, if no response has been made, you’re then able to apply for a warrant for an additional fee. On approval of a warrant, the court can then request that a bailiff attend the property to reclaim the debt.

It’s rare that CCJs progress to the warrant stage but in the unlikely event that it does, feel free to drop me another email and I'll be more than happy to provide further advice.

New year, new you

Submitted 31 Dec 2018 by Anonymous

Hello,

I run a small law firm with the help of my wife and a particularly indulgent Christmas period has brought up the subject of our spending. As part of this new focus on saving we’d like to tackle our (arguably neglected) aged debtors, however we’ve got great relationships with our clients as many have been with us for years and we don’t want to rock the boat too much.

Do you have any advice on how to tackle the dreaded backlog going into the new year without upsetting too many people? We know they’re likely to be in a similar position, you see...

Thanks,
Anonymous

Chaser's response

Legal notice: As a representative of Chaser I provide this advice on the understanding that you will consider the consequences of your chosen actions. Neither Chaser nor any Chaser employee will be liable on any basis for the consequences of your use of it.

Hi!

Thanks so much for sending this question. It’s definitely something that’s going to be on a lot of peoples’ minds at this time of year, so it’s good to be thinking about it as early as possible.

There’s a fine line between being too pushy and doing yourself a disservice so you have to think carefully about the dynamic you have with your customers and what their limits might be. My first piece of advice would be to remain polite and above all be honest. Don’t go in cold demanding money at a particularly sensitive time of year without any context or preamble. Empathy is a powerful motivator when used correctly, so think about how you might like to broach the subject. It’s perfectly reasonable to say you’re doing some ‘house-keeping’ and need to tidy things up before entering into the year ahead.

When you’ve decided on your tone the next step is to create an email schedule. If you use Chaser this is easy, as it only needs to be set up once and the software will send them for you. If not, be sure to write one out and mark dates to follow up in your calendar.

I’d also recommend using different wording from your standard email chasers in this case. Keep it bespoke to capitalise on the specific nature of this time of year. Each email chaser should be friendly yet precise, and change in wording as they develop, as to not appear like a copy and paste job. Sincerity is key. Then schedule a phone call after 2 or 3 emails if you’ve not had any success.

Finally, I’d recommend offering a life-line. By this I mean if in the first instance they’re not able to pay, or worse there’s no response, present a more attractive and manageable option such as a payment plan. It’s largely the case that debtors do actually want to relieve their burden but can’t for one reason or another. Offering a plan means that they get the satisfaction of making a positive step towards resolving their situation and you get a solid commitment to pay. Once you have that commitment it’s much easier to hold them to it as it’s something that they themselves have negotiated with you.

I hope this helps and good luck with your business in the new year!

David vs. Goliath

Submitted 30 Nov 2018 by Anonymous

I’m a freelance copywriter that has a reasonably wide portfolio of clients. My smaller clients are fine but whenever I’m dealing with large corporates retrieving payment is always a headache. They just pay whenever they want.

Do you have any advice for dealing with larger companies like that?

Thanks,
Anonymous

Chaser's response

Legal notice: As a representative of Chaser I provide this advice on the understanding that you will consider the consequences of your chosen actions. Neither Chaser nor any Chaser employee will be liable on any basis for the consequences of your use of it.

Great question! Thanks so much for submitting, this is something I've been asked a lot. I myself have been a freelancer and know all about that David vs. Goliath struggle.

Firstly I would check to see if you signed any kind of agreement on registering as a supplier. It’s quite common for the procurement teams of larger companies to make all suppliers adhere to their own supplier terms, and nestled in amongst all the legal jargon is often a line about payment terms. It’s quite common for them to pay on 60 or more days, as for them that’s 2 months worth of interest accruing in their account.

If you’re sure that you’ve not signed anything like that, in theory, these businesses should adhere to the same rules as any other. Your biggest challenge is dealing with the bureaucracy that comes with these firms, and my advice would be to be firm and persistent. Send initial emails so that you have physical proof of your chasing (or use Chaser to store them), but then favour phone calls. Call the main switchboard and ask for the Accounts Payable department. When you eventually get through it’s likely that they’ll deal with you in scripted responses so be sure to get them to answer:

• “When are your payment runs?”, and
• “Do you need a purchase order?”

When you eventually get a promised payment date from them, and it’s not within your payment terms, kindly remind them that you’ll need to receive payment by X date or statutory interest will be added. I've included a couple¹ of resources² below for more info on this.

In short, large companies will try to slow the process by making you jump through hoops. Make sure you’re leading the conversation - polite persistence pays after all - but in some cases you may just need to be a little more firm.

One final thing to note is that some freelancers are worried that being too pushy collecting payment will jeopardise their future with a large customer. Whilst this does need to be considered, I would add that the size of these companies often means that something is going to have to go pretty south before it works its way back up the food chain. There’s generally not too much cause for concern.

I hope that helps! Good luck and let me know how you get on.

Additional resources:

1. Gov.uk service to check large businesses payment history: https://www.gov.uk/check-when-businesses-pay-invoices ↩

2. More info on the application of statutory interest: https://www.gov.uk/late-commercial-payments-interest-debt-recovery ↩