Pre-action conduct

Litigation should be a last resort, after all other options have been exhausted. The courts expect the parties to communicate and co-operate with each other to resolve their disputes at an early stage before issuing proceedings. To that effect, a claimant  is expected to send a letter before action or letter of claim and giving the defendant the opportunity to respond, before issuing a claim.
1

The Civil Procedure Rules Practice Direction – Pre Action Conduct sets out the steps parties should take before proceedings are issued. To comply with the PD, a claimant is expected to write a Letter Before Action (LBA), also known as a Letter of Claim, before issuing a claim. This is intended to encourage early exchanges of information, facilitate settlement and avoid court action if possible.

UpdateA new pre-action protocol for debt claims is still being discussed but has yet to be implemented. A draft can be seen here: Pre-action protocol for debt claims.

Many letters before action do not comply with the rules even when written by firms of solicitors. They are not always headed “letter before action” or “letter of claim”.
You should always respond to a letter of claim, even if it’s non-compliant and/or not headed as such.
In many cases, proceedings can be averted with a suitable response to a letter before action.

EnvelopeWhen responding to the letter, you can take the opportunity to ask the claimant to provide you with the documents they intend to rely on in their claim, such as any contract or agreement, notice of assignment (if the debt has been sold), statements of account, etc. For accounts regulated by the Consumer Credit Act, you can also request documents such as the credit agreement and the default notice.

Although the pre-action conduct practice directions may seem too technical, it’s worth trying to understand them and being able to quote the relevant bits of legislation if necessary, for example, explaining that the claimant failed to allow you time to respond to the letter or that they did not set out their arguments in such as way as to allow you to assess the situation.

It is often possible to avoid a claim being issued by providing a suitable response to a letter of claim. Responding shows the prospective claimant that you know what you are talking about and will be defending the claim. Creditors often issue claims to those who ignore letters and expect those claims to go undefended so they can obtain default judgment.

The court has power to order sanctions against a party that does not comply if it considers that it should have reasonably been complied with, or that failure to comply has caused waste of the court’s time. This can be more significant with larger claims (over £10,000) which are not allocated to the small claims track. See allocation and costs for reference.

Paragraph 11 of the PD refers to alternative dispute resolution (ADR). See Settlement and ADR.

11.  If proceedings are issued, the parties may be required by the court to provide evidence that ADR has been considered. A party’s silence in response to an invitation to participate or a refusal to participate in ADR might be considered unreasonable by the court and could lead to the court ordering that party to pay additional court costs.

2

Paragraph 3 sets out the objectives of the pre-action conduct:

Objectives of pre-action conduct and protocols

3.  Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to—

(a) understand each other’s position;

(b) make decisions about how to proceed;

(c) try to settle the issues without proceedings;

(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;

(e) support the efficient management of those proceedings; and

(f) reduce the costs of resolving the dispute.

3

Paragraph 6 sets out the steps that should be taken before issuing a claim:

Steps before issuing a claim at court

6.  Where there is a relevant pre-action protocol, the parties should comply with that protocol before commencing proceedings. Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind that compliance should be proportionate. The steps will usually include—

(a) the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated;

(b) the defendant responding within a reasonable time – 14 days in a straight forward case and no more than 3 months in a very complex one. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim; and

(c) the parties disclosing key documents relevant to the issues in dispute.

Note that there is a requirement for the parties to disclose key documents. This paragraph should be quoted in your response to their letter, asking for disclosure of things like the contract or agreement, the notice of assignment (if relevant), statements of account and any other relevant documents.

A prospective defendant is expected to respond within 14 days, so it’s a good idea to do so to stave off proceedings. As most letters written by creditors’ solicitors do not comply with the pre-action conduct in terms of the information they provide, your response can be simply to ask for disclosure of key documents as stated above.

For debts covered by the Consumer Credit Act, it is always a good idea to send a CCA request upon receipt of a letter before action and to mention that you have sent such a request and are awaiting response. See CCA requests.
4

Paragraph 13 refers to compliance:

Compliance with this Practice Direction and the Protocols

13.  If a dispute proceeds to litigation, the court will expect the parties to have complied with a relevant pre-action protocol or this Practice Direction. The court will take into account non-compliance when giving directions for the management of proceedings (see CPR 3.1(4) to (6)) and when making orders for costs (see CPR 44.3(5)(a)). The court will consider whether all parties have complied in substance with the terms of the relevant pre-action protocol or this Practice Direction and is not likely to be concerned with minor or technical infringements, especially when the matter is urgent (for example an application for an injunction).

14.  The court may decide that there has been a failure of compliance when a party has—

(a) not provided sufficient information to enable the objectives in paragraph 3 to be met;

(b) not acted within a time limit set out in a relevant protocol, or within a reasonable period; or

(c) unreasonably refused to use a form of ADR, or failed to respond at all to an invitation to do so.

The court will regard lack of sufficient information as a failure to comply. This includes supplying relevant documents and account information, however, for a defendant to be able to use this in their favour, they should have replied to the letter before action requesting such information, normally within 14 days. There is no need to offer a full response with arguments for disputing the account at this stage, not until the relevant documents have been supplied to enable you to assess your position.

5

Paragraph 16 refers to sanctions for non-compliance:

16.  The court will consider the effect of any non-compliance when deciding whether to impose any sanctions which may include—

(a) an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties;

(b) an order that the party at fault pay those costs on an indemnity basis;

(c) if the party at fault is a claimant who has been awarded a sum of money, an order depriving that party of interest on that sum for a specified period, and/or awarding interest at a lower rate than would otherwise have been awarded;

(d) if the party at fault is a defendant, and the claimant has been awarded a sum of money, an order awarding interest on that sum for a specified period at a higher rate, (not exceeding 10% above base rate), than the rate which would otherwise have been awarded.

The court may order the non-compliant party to pay costs and/or additional interest, making it essential to respond to any letters received to avoid sanctions in the event things progress to the court stage.