Locums: recovering unpaid fees

Sometimes, locum pharmacists who work for a pharmacy contractor may have difficulty in recovering payment for the work they have done. This fact sheet contains information for locums who are looking to claim back unpaid fees.

Options for recovering unpaid fees

There are a number of options available to locums who are looking to recover unpaid fees. Factors to consider will include the amount of money owed compared to the cost of recovering the debt. Locums can choose to:-

  • use civil mediation
  • go to court
  • send a statutory demand
  • where the amount owed is more than £5,000, make the person or business who owes the money bankrupt.

Civil mediation

Mediators are impartial negotiators who are trained in dealing with difficult discussions between two opposing sides. There is a fee for mediation, however, it is ordinarily much cheaper than taking court action and paying solicitors’ fees. Mediation is a voluntary process and can only take place if both parties agree. If mediation does not resolve the matter satisfactorily, locums will still be able to go to court to recover their unpaid fees. For further information on how to find a civil mediation provider and the costs involved, see the Ministry of Justice website.

Locums who are based in Scotland should use the Scottish mediation website.

Claiming unpaid fees through court

Locums who are owed money by a person or a business can apply to the county court to claim the money back. This is often described as taking someone to a ‘small claims court’. Claims for a fixed sum of money under £100,000 against no more than two people or organisations (for example, a limited company) can be made online. The HM Courts and Tribunals Service online claims system is know as Money Claim Online (MCOL). Claimants who are unsure of the amount they are claiming, or are claiming for a sum greater than £100,000 will have to apply by post. Claimants who need help to pay the court fees because they are on low income or claiming certain benefits will also not be able to use the online service and will have to submit their documents via post.

For further information about who might be eligible for help with the cost of court fees, see the government website.

Claimants should also note that whilst they can use this service from anywhere within the UK, the defendants must have an address in England or Wales in order for the claim to be served against them. To find your local county court, see the government website.

Claimants with defendants who have an address in Scotland should go to the small claims section of the Scottish Courts and Tribunals website for further information about making a claim.

Before making a claim

Before a claim can be made, the court will expect to see evidence of the steps already taken in order to settle the dispute. This will include claimants writing a letter to the defendant/s before taking action stating:-

  • the amount of money owed
  • what the payment is for, for example, locum services
  • what steps have already been taken in order to recover any monies owed
  • that a county court claim will be issued if the debt is not paid within a reasonable period, for example, 21 days.

Claimants should note that it is unlikely that the court will be able to help them to get their money back if the defendant:-

  • is unemployed
  • is bankrupt
  • has no money of their own
  • has no personal property or items of value, for example, a car belonging to them
  • has stopped trading
  • has other debts to pay.

In these instances, it may be uneconomical to issue a claim. Claimants should also note that they may be asked to prove their claim in court, if the defendant denies owing the money or fails to respond. It is advisable to seek legal advice in advance of making a claim to ensure that it is worth making a claim.

Seeking legal advice

The following organisations can help with legal advice:-

  • a trade union if the locum a member
  • a Citizens Advice Bureau (CAB)
  • a law centre
  • a solicitor.

Alternatively, Pharmacist Support can refer locums for free and confidential debt advice. A specially-trained Citizens Advice adviser will help, for example, to decide whether there is a viable claim and how to complete the MCOL forms. For a referral, email Pharmacist Support at info@pharmacistsupport.org or call our enquiry line on 0808 168 2233.

Issuing a claim using MCOL

In the first instance, claimants will need to register online. There are two options when registering; claimants can register as an individual or as an organisation. Claimants should register as an individual if they are intending to issue a claim for money owed to them personally, for example, not on behalf of a firm or business. Locums who have a limited company and are making the claim on behalf of that company should register as an organisation.

Claimants will need to initiate registration by entering personal details such as name and e-mail address and will also need to set a password. For further information about registration and filling in an MCOL claim form, see the MCOL section of the HM Courts and Tribunals Service website.

Court fees

The final step before issuing a claim is to pay the court fee. The fee charged will depend on the amount of money being claimed. Whilst claimants are responsible for initial payment of the court fee, it is then automatically added to the amount of money being claimed. Claimants should note that this fee is for the issuing of the claim only. Any further court action, for example, if the defendant wishes to dispute the amount of money owed, will incur additional court costs.

Claimants should note that online fees are significantly cheaper than fees for claims submitted by post. For a full list of fees for issuing a claim, see the government website.

Additional particulars of  a claim

If claimants find that the particulars of their claim on the MCOL claim form exceeds the character and line limit, they may wish to provide additional particulars of claim. The initial form limit is set at 1080 characters on a maximum of 24 lines. Any additional particulars will need to be sent to the defendant/s with 14 days of the original claim being issued.

For further information about additional particulars of a claim, see the government MCOL user guide.

Defendant response to a claim

Claims are issued within two days of claimant submission, and the court will then send a claim pack to each defendant named on the claim. Defendants have fourteen days from the date of service to respond. The court calculates the date of service by allowing for five calendar days for defendants to receive the pack. The date of service is therefore set for the fifth calendar day after issue. Claimants should note that if they have filled in an additional particulars form, this may affect the date of service.

Once defendants have received a claim pack, they can opt to do any of the following:-

  • acknowledgement of service (AOS)- this indicates that the defendant intends to file a defence, part admission or contests jurisdiction, an AOS will also extend the time limit from fourteen calendar days from date of service to twenty eight
  • states paid defence – the defendant states that the amount claimed has already been paid, but this may not include interest and court costs
  • full defence – the defendant wishes to dispute the full amount of the claim, in these instances claimants will be provided with the defence and asked to file a directions questionnaire
  • counterclaim – the defendant wishes to dispute the full amount of the claim and also to file a counterclaim against the claimant
  • part admission – the defendant wishes to dispute part of the payment, claimants will be provided with details of what the defendant is willing to pay and will have to decide whether to proceed with the claim for the full amount or accept what has been offered
  • full admission – the defendant wishes to make an offer of repayment, claimants will be sent this form directly, it will not go to the court
  • no response – the defendant does not respond within the allotted time
  • payment – the defendant sends a payment directly to the claimant.

Claimants should note that once defendants have filed a response, it is their responsibility to advise the court on how they wish to proceed. Claimants who fail to instruct the court will have their claims suspended (known as stayed) and if they wish to reinstate the case, they will then have to make an application to a district judge or court appointed legal adviser.

What happens after the defendant has responded

This will very much depend on the type of response. In disputed claims, claimants must follow the directions enclosed with the copy of the defendant’s response. If claimants have been sent a questionnaire to complete it must be returned by the date specified. Failure to do so may mean that the claim is struck out.

Once all the necessary paperwork has been completed and returned by both parties, the case may be referred to a mediator if all parties agree. If not, it will be transferred to the local county court hearing centre. If the case is referred to a mediator and this mediation is not successful, the case will then be transferred to the local county court hearing centre.

If a payment has been offered that is acceptable, claimants can make an order for repayment and request judgement online. If the payment offered is not acceptable, for example it does not cover all of the costs or the proposed repayment schedule is not to the claimants liking, a request can be made for the judge to determine the judgement, which would mean that the judge would decide how the defendant should pay.

Claimants who receive a payment immediately after submitting a claim will be able to mark the claim as settled online but will not be able to claim a refund for any court fees that have already been paid. If a partial payment has been received, claimants do not need to inform the court until a full settlement has been paid.

Claimants who wish to discontinue a claim will need to fill an N279 Notice of Discontinuance form.

Claimants who do not get a response from defendants can request a judgement via the MCOL website. Claimants should note that defendants can still respond until the court has processed the judgement request. Claimants are responsible for ensuring that they enter the right type of judgement request and also that all the relevant details about themselves and the defendants, for example, names and addresses, are correct. Failure to do so could lead to the judgement being set aside. Claimants will receive written confirmation once they have entered a judgement.

For further details on judgement requests see the government user guide for MCOL claimants.

After a judgement has been entered

Once entered, the defendant/s will be sent a copy of the order. This will tell the defendant/s how much to pay, when to pay and where to send the payment. Payments are ordinarily sent to claimants rather than to the court.

After payments have been received

Once the claim has been paid in full, claimants can update their claim status online. The government recommends that claimants wait until funds have been cleared before marking a case as paid. If a case is marked as paid and the payment does not clear claimants will be required to make an application to court and pay a fee in order to get the case reinstated.

Unpaid claims

Claimants who have not received a payment once a court has ordered defendants to do so, can try to get their money back by asking the court for:-

  • a warrant of control
  • an attachment of earnings order
  • a third-party debt order
  • a charging order.

Claimants should note that no matter which course of action they decide upon, the court cannot guarantee that the claim will be successful. There will also be additional court fees to pay, and whilst the court will add these fees to the money already owed by the defendant, if the defendant does not pay claimants will not be able to ask for their court fees to be refunded.

In some instances, claimants may be able to get help with court fees, for further information, see the EX160A-How to apply for help with fees booklet.

Before making a decision about pursuing an unpaid claim, claimants should consider whether:-

  • they are likely to get their money and court fees back
  • the defendant owes money to other people or has other court judgements
  • the defendant owns any goods or assets which can be taken and sold at auction
  • the defendant is working
  • the defendant has any any other earnings, for example, income from investments
  • the defendant has a bank, building society or other account
  • the defendant owns property
  • anyone else owes the defendant money.

If a defendant is not work and has no tangible assets it may be uneconomical to continue to pursue the debt. For further information on what steps to take, see the EX321-I have a judgement but the defendant hasn’t paid booklet.

How long does the process take

There is no set time scale. Ordinarily, a claim for less than £10,000 will take up to six months to be dealt with following the date of issue, however larger claims may take longer.

Who pays the court costs

In small claims cases, the general rule is that the parties pay their own costs. However, if a claim is successful, the defendant may be ordered to pay all of the court fees, including MCOL fees.

Making and serving a statutory demand

Locums could opt to make a statutory demand to ask for payment of a debt from an individual or a company. Anybody can make a statutory demand, it does not have to be done through a solicitor. Statutory demands are a means of threatening a debtor with bankruptcy or the winding-up of their company, with immediate effect if the debt is not paid or an agreement reached, within 21 days. Statutory demands cannot normally be made for debts that are more than six years old.

Statutory demand forms are available to download from the government website.

If the demand is being served in Scotland, the statutory form is available to download from the Register of Insolvencies website.

A statutory demand must be served by:-

  • giving it to the person who owes the money
  • leaving it at the registered office of a company that owes the money
  • giving it to the company’s director, company secretary, manager or principal officer
  • arranging for a process server to serve the demand (a solicitor can arrange this).

If it is not possible to serve a statutory demand via any one of the methods above, it can sent by registered post or delivered by hand through a letterbox.

Once the individual or company has received a statutory demand, they have 21 days either to pay the debt or reach an agreement to pay. If they do not respond within this time claimants can apply to bankrupt an individual or close (wind up) a company (see making a person or company bankrupt section below).

For further information about serving statutory demands, call the Insolvency Enquiry Line on 0300 678 0015 or email at insolvency.enquiryline@insolvency.gsi.gov.uk

Making an individual or company bankrupt

People who are owed more than £5000 can opt to apply to make an individual or company bankrupt by presenting a petition in a court. A petition is an application to the court for someone’s assets to be taken and sold to pay their debts. Petitioners will need proof that they are owed at least £5,000 or a share of debts totalling at least £5,000. Petitioners will also need to check for any other bankruptcy petitions against the person or company who owes the money. If there is already an existing petition, it would be cheaper to support the existing petition rather than presenting a new one. Contact details of the existing petitioner will be on the existing petition.

For information about how to check for other bankruptcy petitions, see the government website.

Petitioners should note that if there is already a bankruptcy order they will not be able to continue with the petition. Petitioners would need to register as a creditor instead. Registered creditors are not guaranteed a payment, however they will be kept informed about the case and will be able to vote on decisions at any creditor’s meetings. For further details on how to register as a creditor, see the government website.

Creditors wishing to make a claim in Scotland should see the Accountant in Bankruptcy website.

If the claimant is applying to make someone bankrupt; the court to which they apply will depend on the circumstances of an individual claim. The petition would need to be served in the High Court if the debtor lives in London and owes more than £50,000 or the debtor has no fixed abode.

All other petitioners should take their document to the county court that is nearest to where the live or work. If the debtor owns a business choose the county court that is nearest to their business address. To find details of the nearest county court, see the government website.

The forms needed for presenting a petition are available to download from the government website.

Once the petition has been put before the court the petitioner will need to:-

  • deliver a copy of the petition to the debtor (this should be done in person)
  • provide a statement of truth to the court confirming that the petition has been served on the debtor in person. Petitioners who are unable to serve the petition in person will need to ask for the court’s permission to serve it another way, for example, by post.

Petitioners will be notified of the date on which the petition will be heard. This is ordinarily at least fourteen days after the petition has been served.

For further information about the bankruptcy process, see the government website.

Other useful organisations

Citizens Advice

The Advice Guide website has lots of information about debt, law and the legal system. The website gives information for all parts of the UK, just click to opt for England, Scotland or Wales. For further information, see the Advice Guide website.

HM Courts & Tribunals Service

The HM Courts & Tribunals website has a full list of all court and tribunal forms available to download. It also has an Historic Debt Team who can help to chase outstanding debts up to ten years old. For further information, see the HM Courts & Tribunals Service website.

LawWorks

LawWorks is a charity that offers free legal advice to people who cannot access legal aid and cannot afford to pay court costs and legal fees. For further information including search engine to find a local clinic, see the LawWorks website.

Law Centres Network

Law Centres offer legal advice, case work and representation to individuals who cannot afford a lawyer. For further information including how to find a local centre, see the Law Centres Network website.