Premia v Regis – Interest entitlement following commercial debt

In Premia Marketing Ltd v Regis Mutual Management Ltd (Costs and Consequential Matters) [2021] EWHC 2968 (QB), the court examined whether interest could be awarded in respect of a commercial debt, despite the absence of an invoice with an expressly agreed payment date.

Under section 4 of the Late Payment of Commercial Debts (Interest) Act 1998 (LPCD(I)A):

• Statutory interest will start to run either on (a) the payment date agreed by the parties or (b) the last day of the ‘relevant 30-day period’.
• The ‘relevant 30-day period’ will begin with the later of either (a) the day the supplier performs their obligation concerning the debt or (b) the day that the purchaser receives notice of the debt sum, even if quantification is later rejected or modified.

Background

Prior to the Costs and Consequential Matters judgment, it was first disputed whether there was an outstanding commercial debt owed to Premia Marketing Ltd, the claimant. They had successfully referred Regis Mutual Management Ltd, the defendant, to The Caravan Club for the purposes of managing a four-year mutual insurance scheme. Despite the defendant’s policy not to pay introduction fees, the defendant failed to mention this when the claimant requested remuneration for their services.

The matter came before Roger ter Haar QC, sitting as a Deputy High Court Judge, on 18 August 2021. The judge found that “there was a sufficient meeting of minds between the parties to constitute a contract” insofar that the claimant was entitled to a reasonable sum for the introduction. Pursuant to section 15 of the Supply of Goods and Services Act 1982, a clause was implied that the defendant would pay a reasonable charge in exchange for the claimant’s services. The claimant was awarded £212,294, representing 10% of the defendant’s net profit from the agreement with the Caravan Club and the percentage that the defendant previously offered.

Issues before the Court

The 18 August 2021 judgment prompted further questions. The subsequent judgment on 5 November 2021 addressed these.

The issue of ‘interest’ stood as the main matter of contention. The claimant sought statutory interest on the £212,294 award in accordance with section 1 of the LPCD(I)A. Meanwhile, the defendant opposed this on the basis that an order to pay interest would be ‘grossly unfair’, amounting to grounds for remission of interest under LPCD(I)A.

The judge was also obliged to consider whether, if interest on £212,294 should be awarded, from what date interest runs under section 4 of the LPCD(I)A.

Decision

The judge determined that the claimant’s £212,294 award was a ‘qualifying debt’, namely the price set through a contractual obligation. Here, the contractual obligation was the supply of introductory services.

In his judgment, Roger ter Haar QC:

1. determined a defendant who opposes liability in good faith will not preclude the exercise of the LPCD(I)A, following the decision in Crema v Cenkos Securities Plc [2011] EWCA Civ 10. Accordingly, the proposition that the defendant had grounds for a remission of interest was rejected, despite the claimant proposing a claim considerably larger than the figure the Court accepted.
2. observed that the decision was ‘marginal’, but concluded that the pendulum swings in support of the claimant following an “unjustified [personal] attack” on the claimant’s director by the defendant in the initial part of the claim. The judge indicated that the position would have likely differed if the defendant offered payment and upheld it.
3. rejected the defendant’s submission that the award of interest would have been ‘grossly unfair’ in light of all the circumstances pursuant to section 4(7A) of the LPCD(I)A. A disagreement over the amount and basis on paying the introductory fee was not enough to deviate from good commercial practice or the nature of the service provided.
4. found no justification to prevent the application of the statutory interest tools.
5. rejected the claimant’s submission that there was an implied agreed payment date. By default, the basis for the 30 day period was 30 August 2019, namely the date the defendant was served with the claimant’s initial claim.
6. used a sweeping approach to assume that The Caravan Club would pay the defendant annually, meaning the profit share was due 30 days after the last day of February. Accordingly, interest would start to run 30 days after the 29 February 2020 (leap year) and 28 February 2021 for the profits that had not yet accumulated. With regard to the profits paid on the last day of February 2017, 2018 and 2019, interest accumulations began from 30 days after 30 August 2019.
7. allowed the parties to agree the interest figure. The interest was not calculated by the Court.

Comment

The decision foregrounds the tools used to calculate interest for commercial debts and serves as an important reminder that ‘notice means notice’. Unless agreed otherwise, interest on debt sums will begin 30 days after notice is provided. It is irrelevant whether a debt sum is changed or withdrawn at a later date. In some cases, service of the debt claim on a defendant may constitute the first point of notice.

When requesting remuneration, businesses should plainly highlight the sum they wish to achieve from their relationship. When faced with a commercial debt, without express late payment interest or terms, a business should seek legal advice on whether LPCD(I)A can apply, check the current interest rates, and ensure proper notice is given, in order to minimise the risk that a customer disputes such claims for interest on late payments.

For further information on the article above, please contact Holly Ransley or another member of our  Restructuring & Insolvency team.