Pre-Action Protocol

The Ministry of Justice released a new Pre-Action Protocol for Debt Claims that has taken effect from 1 October 2017.

If your company is claiming payment of a debt(s) from an individual or sole trader, the protocol will apply to your business and you need to be aware of the changes.
The changes revolve around increasing the amount of information shared between parties, to a sufficient enough level that the parties can understand each other’s position and come to an agreement without court involvement.

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What is the purpose of this protocol?

  • 1

    To encourage early engagement and communication between the parties.

  • 2

    To enable the parties to resolve the matter without the need for court proceedings.

  • 3

    To encourage the parties to act in a reasonable and proportionate manner.

  • 4

    To support the efficient management of proceedings.

What changes have to be made to the LBA?

    You are now additionally required to include in the letter:
  • up to date financial information including details of any interest and administrative charges added;
  • details of the agreement under which the debt is payable including who made the agreement, whether it was written or verbal and the date it was made. It also needs to be stated that further information or a copy of the written agreement can be made available to the debtor upon request;
  • payment details including the method of and address of payment, and details on how the debtor should proceed if they wish to discuss payment options;
  • an enclosed Reply Form, Information Sheet and Financial Statement Form, all of which have been provided for use in the protocol itself;
  • a reply address where the debtor is directed to send the Reply Form.
  • The letter should be clearly dated and posted within a day of the date stated, and it must be sent by post unless the debtor has explicitly requested it be sent by an alternative method.

What timescales are involved?

    • The original LBA provides the debtor 30 days (+ time for postage) to reply or pay the debt before court proceedings can be issued.

    • If you get a completed Reply Form, you should not start proceedings for 30 days from receiving the response.

    • If the debtor requests copy documents or information, you must allow at least 30 days from the date you provided them before suing. If you can’t provide them, you have to say why within 30 days.

    • If in their response, the debtor says they are getting advice, you should allow at least 30 days before taking action, longer if that would be reasonable.

    • If you get a partially completed Reply Form you should try to contact the debtor to find out what the situation is: perhaps there is a dispute of some sort or they are looking for time to pay.

    • If you’ve received a partially completed Reply Form or you’ve had discussion with the debtor and you can’t reach agreement, review the case. You will need to give a final 14 days’ notice before suing.

    • During any part of the pre-action process, the debtor must be given an additional written warning at least 14 days in advance of court action being commenced. An exception to this is the upcoming expiration of a limitation period.

Summary

As you will notice, the whole procedure has been overhauled in order to nurture communication between parties with the aim of avoiding court action being taken.

This means creditors may have to wait up to 60 days to file a claim, alongside having to do a great deal more administrative work in preparation.

The court will take into consideration any non-compliance and may penalise a party that doesn’t substantially follow the protocol. For example, a successful creditor might not be awarded part or even all its costs. However, in relation to other protocols, the court has usually looked at whether a failure to follow the protocol made any real difference and doesn’t usually like parties playing games with the protocol procedure.

If you are planning on taking your debtor to court, it is recommended that you send out the first Pre-Action letter as soon as the debt becomes due.

Alternatively, ask Lovetts to send a Pre-Action Protocol Letter on your behalf and we will work the debt on a no collection, no fee basis in accordance with our UK Prelegal terms.

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Download our free Pre-Actional Protocol for Debt Claims Guide and Templates.

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Learn more

  • Explainer Video

    Learn about the new protocol with this short video.

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  • Flowchart

    Get the flowchart to easily learn the options and timescales involved.

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