HT-2020-000448 - [2024] EWHC 2025 (TCC)

Fecha: 01-Ago-2024

Interest did not start to run

Interest did not start to run

72.

Section 4 of the 1998 Act provides that, in the absence of an agreed date for payment of the debt, interest does not start to run until the purchaser has notice of the amount of the debt, or the sum which the supplier claims is the amount of the debt (see Sections 4(2A) and 4(2H)). There was no agreed date for payment of the sums which TCS have been awarded. DBS contended in written submissions that DBS was never asked to pay a debt in the sum awarded to TCS at any stage prior to the Judgment on account of the fact that the sums requested by invoice included other sums. As such, it argued that interest had never started to run.

73.

This argument was unsustainable in light of Jacob LJ’s decision in Ruttle, in which he made clear that the fact of an over-claim by way of invoice or demand does not prevent that invoice or demand from being notice to commence interest running (although the over-claim may be relevant to the question of remission under Section 5 of the 1998 Act). At [30] Jacob LJ said:

‘But the use of the phrase in the ‘unascertained’ alternative, ‘the sum which the supplier claims is the amount of the debt’ shows that a provisional view of an amount due is within the section. Mr Acton Davis suggested that the alternative was aimed only at cases where you could not do a calculation, such as where the agreement was to pay a reasonable sum—so you could not calculate the exact sum due. That it covers such cases I accept, but I see no reason why it should be so limited. Unless the sum has been determined already in a way binding on the parties, it is likely to depend on calculations which the supplier may have got right, or may have got wrong. In such a case it is not ascertained and what the supplier has to give notice of is what he claims to be due. He may or may not have got it right. In either case he is within the second half of the section.’

74.

It is not correct, therefore, that the fact that the invoices represented ‘over-claims’ means that there was no proper notice by which interest would start to run.

75.

It is nevertheless necessary, of course, to identify the date from which such interest is to run. Mr Croall had taken the point that this was not pleaded, nor clear on the evidence. In light of the way the invoices had been submitted and the way that their expert had ‘smoothed’ the invoices which underlay the interest calculations, Mr Cogley in oral submissions was unable to point to the precise date upon which the first demand for the purposes of satisfying the 1998 Act was given. Nevertheless, he submitted, correctly, that the relevant requirements of the 1998 Act would be met by identifying a ‘not later than’ date, by which, conservatively, it could safely be concluded that the relevant demand (by reference to the preceding invoices) had been made. This approach was not disputed by Mr Croall. The ‘not later than’ date contended for in oral submissions was 22 April 2019. I would have accepted, had there been a qualifying debt and/or had the 1998 Act applied unmodified, that interest had started to run from not later than this date.