Contractors' Questions: Can I suspend a website the client hasn’t paid me for?

Contractor’s Question: A likeable web development client of mine who provides a handful of interesting projects each month has been a prompt payer for the most part.

But almost nine weeks ago, one invoice wasn’t paid. Two invoices since then are also outstanding. The total value of the three invoices is £950. Numerous times I have broached the issue of getting paid, but I’m always given an excuse and asked to wait another week or two. 

My business desperately needs the funds, so I’ve given the client a deadline of midday tomorrow to settle the unpaid invoices. If they miss the deadline, I’ve vowed to suspend all of the websites that have money outstanding on them. I still have full FTP and Database access to all the sites.

Is my ultimatum a bit harsh? Or, worse, might my suspension of the sites be unlawful given that the sites are now on the client’s servers? If my proposal to suspend the sites is over the top, what alternatives do I have to receive the money?

Expert’s Answer: You might be surprised to hear that this isn’t an uncommon situation for a freelance contractor to find themselves in. A once prompt-paying client slowly but surely stretches payment terms to breaking point, leaving you in the unenviable position you have described.

Now in terms of proportionality, we do not think terminating services that haven’t been paid for is a step too far.  We can and do advise our clients that this step can be taken, provided the original contract/agreement and current circumstances allow it.

BUT, in this instance the sites aren’t held on hosting you control and the inference from your question is that these sites have now been formally ‘handed over’ to the client.  As such any action you take may well fall foul of the “Computer Misuse Act 1990” as the legislation states an offence is committed if someone gains:

  1. Unauthorised access to computer material
  2. Unauthorised access with intent to commit a further offence
  3. Unauthorised modification

Now we aren’t a firm of solicitors, so we can’t say definitively that you would be breaking the law, but we are sure you can see how disabling sites hosted with a third party, after client handover, may leave you open to some very unwelcome attention from the police.

Irrespective of the legalities involved, taking this course of action will almost certainly decimate any remaining trust and goodwill that exists in the relationship and provide your client with a ready-made excuse to further delay, or completely refuse to make payment.

But all is not lost; you still have recourse and since the revised “Late Payment of Commercial Debts Regulations 2013” took force in March of this year, your position as a creditor has never been stronger. 

Basically the act allows for the addition of fixed costs of £40 on every single overdue invoice with a value less than £1,000 plus interest at 8.5%.  Crucially the revised legislation also allows for the addition of “extra” or “collection costs” over and above the fixed costs and interest, if you need to involve a third party in collection.

Which brings us to what options you do have to recover the balance due.  Essentially you have three options:

  1. Engage a reputable debt collection company to pursue the balance
  2. Issue proceedings using a solicitor
  3. Issue proceedings ‘in-house’ using the small claims court

I won’t go into a great deal about these options here, as this has already been covered in our article for ContractorUK “How contractors can get paid if all else fails”.  But do bear the following pros and cons in mind:

Debt Collection

Pros

  • Relatively inexpensive – Typically a percentage charge on recovery, which is now theoretically recoverable from the late paying client.
  • Relatively quick – A majority of cases will be handled in six weeks or less.

Cons

  • Some dishonest agencies – This industry sector has more than its fair share of con men, scammers and sharp practice. So buyer beware!

Important Note

Make sure you choose an established and reputable agency, so see if you can get a personal recommendation from a colleague or business acquaintance. But failing that look for an agency with ties to, or recommendations from other companies, websites and business groups you trust.

Warning: Do not pay any debt collection agency in advance, no matter what promises they make or ‘freebies’ they offer.

Issue Proceedings Using a Solicitor

Pros

  • Experience – Even your average “High Street” solicitor will have a passing familiarity with debt recovery in the civil courts.
  • Guidance – A solicitor will be able to advise on any defence received and should help to secure payment of a judgment.

Cons

  • Escalating Costs – Using a solicitor to lodge a small claim can be prohibitively expensive, and fees incurred engaging a solicitor are generally not recoverable from the debtor even if you win

Important Note

Whilst the “Late Payment of Commercial Debts Regulations 2013” allow for the addition of extra collection costs, i.e. solicitors’ costs, this is as yet untested by the courts.  Recovering your legal costs may or may not be allowed under the revised legislation as no case law exists.

Issue Proceedings “In-House”

Pros

  • Minimal Costs – These are limited to your time and the court fees.
  • Straightforward – The issue of proceedings can now be accomplished online using www.moneyclaim.gov.uk or via your local county court.

Cons

  • Can be difficult to find assistance if a judgment is awarded but no payment is received.
  • Costs are rarely awarded in small claims against either party, but this can happen in exceptional circumstances.

Whichever option you choose, taking debt recovery action against a previously good client is rarely easy. Just remember this is business and you deserve to be paid in full and on time for the work you have done.

The expert was Adam Home of debt recovery specialists Safe Collections Ltd.

Editor’s Note: Further Reading -When IT contractor clients don’t pay – a step-by-step guide

Thursday 1st Aug 2013