Clawing back your losses

All the indications are that these are tough times for the pub trade and they are likely to get tougher with increased costs and charges.

So it is with mixed feelings that I have been looking at the suggestion that licensees should use specialised civil recovery firms to try and recoup loss or damage that they have suffered from the bad behaviour of customers.

These firms sometimes operate on a fixed percentage of what they recover, sometimes as high as 45%. This is mainly because, in a great many cases, they cannot recover anything at all, for a variety of reasons.

What some readers may not be aware of is the controversy surrounding the whole question of civil recovery, and in particular the issuing of fixed fee notices to those who have been accused of wrongdoing.

There are, it has to be said, conflicting views about the legality of this method of compensation and as yet the whole issue has never been fully tested in the courts. So it is unfair for anyone to suggest that there is any form of 'guaranteed' legal redress in this way, or that the law is clear.

In truth, the main operational activity of these civil recovery specialists appears to be in the area of shop theft. Shoplifting does indeed account for a great deal of high-street crime and major stores are always looking for ways to deter it or to minimise their losses. Clearly, if someone is caught shoplifting, there is a criminal procedure that can operate, the police will be involved and the perpetrator will be cautioned or convicted according to circumstances.

That decision will be taken based on all the facts. That is a deterrent, but it does not in itself provide compensation for the shopkeeper.

Civil recovery does not appear to work in the same way as the criminal law, but it may well play on the frustration of licensees at the lack of adequate compensation for damage or loss that they have suffered.

It is interesting that the Citizens Advice Bureau (CAB) has taken up the issue of these compensation firms quite forcibly, so much so that there appears to be a running media battle between one of the leading compensation organisations and the CAB about the legitimacy of fixed fee claims and the legal basis for making them. There appear to be lawyers ranged on both sides (which is not uncommon), but as yet there has been no firm pronouncement in the higher courts about the whole process and the idea that you can claim not just for the item itself, but for ancillary costs such as fraud and theft precautions, supervision, security and surveillance.

The Law Commission recently published a consultation paper on the subject of redress or compensation, which again cast doubt on the ability of a proprietor to make claims for overheads in this way.

Tread carefully​

So my advice is to tread carefully, particularly in more complex cases, such as loss or damage caused by a fight or brawl where there has been no specific charge laid against any of the participants.

If there has been a police report, or even criminal prosecution, then you have a better basis for seeking compensation. But, ultimately, it will depend on the perpetrator's ability to pay. I am sure you have seen many petty criminal cases over the years where the court order is as little as £5 a month. I am afraid it is not that easy to get your money back when you have suffered financial loss.