Climb into the driving seat
20 June 1995
As with many areas of law practice, it is critical for the right person to be dealing with the right job. While this firm's asset recovery and consumer credit department is computerised in relation to its straightforward debt actions, certain aspects of the debt recovery process simply do not require qualified lawyers to be involved which obviously impacts on maintaining a cost effective service for clients.
This firm's clients are primarily finance houses, leasing companies, banks and credit card companies, and the department is driven by the commercial demands that these clients make. Our specialism in finance and leasing has grown over 30 years to the extent that the department now numbers 20 fee earners.
Generally, the finance industry has, in the past few years, been operating in an extremely difficult and highly competitive market. It is crucial to a company's performance that it can secure its interests in relation to assets and debts due by recovering them as soon as possible. It can be quite surprising how many creditors simply are unaware of their rights in a situation whereas frequently its debtors seem to be in the driving seat.
This is entirely unacceptable. Where a car or other asset is on hire purchase and where contractually the creditor is entitled to its return then the creditor should not be defensive. Practitioners in this area sell themselves on the speed with which they can, through the courts, obtain the return of assets or, at least, prevent them from being used until they are returned.
Consumer Credit law is an area of law which is highly regulated, and the Consumer Credit Act 1974 is infamous for its complexity. As consumer protection has the status of a full European Community policy it is an area where there is increasingly more legislative intervention the vast majority of which appears to be in favour of the consumer. My view is that this is a trend which will continue. A topical example of such a piece of consumer protection is the Unfair Terms and Contracts Regulations 1994 which will come into force on 1 July, 1995. The essence of this scheme is to subject terms in consumer contracts to a fairness test and to protect consumers from unfair terms which may lurk in standard terms contracts. Obviously, such legislation can have an immense impact on a company's operations if its contracts do not pass scrutiny as terms which are considered unfair are not binding on the consumer.
My view is that while a company should vindicate its rights as and where appropriate to the best of its ability through the courts he is always
conscious of any circumstances which may involve a client in adverse publicity. Any good adviser should ensure that certain potential "high profile" cases are identified immediately in order that they are dealt with before they become problems.
This department's success is very probably down to the emphasis which it places on ensuring that clients have immediate access to quality legal advice and the vigorous pursuit of actions through the courts. When a new client comes to the firm, arrangements are made to ensure direct daily contact with that client, including computer links. Such visits frequently include the training of a client's staff dealing with Scottish cases who are unfamiliar with Scottish legal terminology and court procedures on asset and debt recovery work. And while the department's focus is primarily litigation, advice is also given to clients on documentation and other matters which may impact on their operation in Scotland.
Frank R Johnstone is a partner and head of the asset recovery and consumer credit department at McClure Naismith Anderson and Gardiner, Glasgow