Pre-action protocols were introduced in 1999.
Essentially, they are designed to encourage early sharing of information and to encourage the parties to consider negotiation or mediation at an early stage to try and avoid the issue of claims.
There is specific Pre-Action Protocol for debt claims which sets out what action needs to be taken before a claim is issued and the conduct the Court will expect the prospective parties to have taken prior to the commencement of proceedings. If it is necessary to issue a claim, a Court can, and will, take into account the extent of the parties’ compliance with the relevant pre-action protocol in particular when dealing with the issue of recovery of costs.
SLC can advise you on the steps that need to be taken to comply with the Pre-Action Protocol so you can make an informed decision on how to proceed with recovery.
Where the defendant is an individual, before you issue proceedings, you need to take certain steps including:
Send a letter before action to the leaseholder setting out certain specific points such as:
- The property concerned.
- The amount claimed, with a summary showing how that is broken down.
- A clear summary of the facts on which the claim is based.
- Details of any funding arrangements that the claimant may have entered into.
You should also set out:
- The documents on which you intend to rely – (including the lease).
- Whether you consider alternative dispute resolution, such as mediation is appropriate and invite the defendant to agree to this.
- A deadline for a full response to be provided by the defendant – 14 days is commonly used.
- Unless you know that the defendant is legally represented you need to draw their attention to possible sanctions for failure to comply with the practice direction AND inform him that ignoring the letter could lead you to start proceedings.
- Finally, (in a recent introduction to the process) details of organisations which can assist in providing advice in relation to debt claims.
The defendant then has the stated time to respond. If he cannot respond within 14 days, then he may send an acknowledgement within that time stating when he will be able to respond (and why) and if there is any further information he may need. (For example, copies of the demands or copies of financial statements that he may not have received).
One point to bear in mind is that the defendant is entitled to seek legal advice and the court has suggested that the defendant should be allowed up to 14 days to seek legal advice or debt advice. However the court has acknowledged that such allowances could be abused and so you do not need to allow the defendant time to seek debt advice if you know that he has already received such advice and his circumstances have not changed significantly or he has previously asked for time to seek such advice but has not done so.
The Defendant’s reply
The full response should set out whether the claim is accepted and if not,
- Give reasons why the claim is not accepted.
- State whether the defendant intends to make a counterclaim and, if so, provide information equivalent to a letter of claim. for example where the leaseholder claims to have undertaken work on the communal areas for which he believes he should be reimbursed (or set off from the amount claimed). Another example is where the leaseholder claims that because of a fault in the property, perhaps a leak, he has suffered loss which he is going to claim back.
- List the essential documents on which he intends to reply.
- Ask for copies of documents not in his possession.
There may be instances when the defendant does not respond within the time limit either he or the claimant has given. If so you can go ahead and issue a claim.
The intention of the protocol is then that the parties will have a genuine opportunity to resolve the matter without needing to start proceedings. In practice, particularly dealing with litigants in person or leaseholders who do not instruct solicitors, there may be a reluctance to negotiate as it may be seen as a sign of weakness.
The courts want the parties to put in this initial work and they will impose sanctions if the protocol is not followed for example, making orders about who should pay costs.
Examples of non-compliance would be:
- Not providing sufficient information to enable the other party to understand the issue. An example might be providing only a global outstanding figure rather than breaking it down.
- Not disclosed requested documents without good reason. An example again would be where the leaseholder requests seeing a copy of his lease.
SLC can advise on when the protocol must be used and how to comply to ensure that your claim is not jeopardised.
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