Pre-action protocols and CPR

[reallymadwoman]

These are the notes I’ve made for my own use, which I thought might help someone else. I know I’ve already made a couple of mistakes, hopefully not fatal, because I didn’t know the rules. However, the usual disclaimers apply. This is only my interpretation and I could just as easily be wrong as I could be right. Before you start would be a better time to find out which it is.

This is not intended to be a guide to taking legal action, or a place to ask for help wording your particulars of claim, it is simply my interpretation of the rules that apply to action in the civil courts. If you need help with a specific claim, the best place to ask for it is on your own thread. If you don’t know how to start a thread, read this:- http://www.consumeractiongroup.c o.uk/forum/welcome-consumer-forums/107001-how-do-i-dummies.html

I’ve organised my notes into the following sections :-

• Where are they, what are they, and why are they important?
• What you should know before you start your claim (or what the other side should have done)
• If you are the claimant
• If you are the defendant
• What’s next?
• Negotiation has failed, so what do you need to know now?
• What happens next?
• Stuff that doesn’t really fit anywhere else
• Small Claims Track
• Fast and Multi-Track

This is still a work in progress, and I hope to add to it as and when I have to use them. Feel free to correct errors, add your experiences or otherwise contribute.

[reallymadwoman]

1. Where are they, what are they, and why are they important?


You can find them here :- http://www.justice.gov.uk/civil/procrules_fin/index.htm

The Civil Procedure Rules are intended to help meet the ‘overriding objective’ of enabling the court to deal with cases justly, which includes ensuring both parties are on an equal footing and saving time and expense.

Pre-action protocols set out the stages parties should go through before commencing legal action, and CPR sets out the rules about how that action should be started and progressed. In addition, there are practice directions which expand upon the rules, for example specifying how documents should be served.

Legal action should always be a last resort, and before issuing proceedings you should be certain that you can demonstrate to the court that you have tried to settle via other means.

The CPR and pre-action protocols are important, whether you are the claimant or the defendant, because even litigants in person (me and you) are expected to abide by them. If you don’t, the court has the power to impose sanctions, which could mean your case being struck out or costs awarded to the other party. Also, if the other side doesn’t abide by the rules, you can draw this to the judge’s attention, which may help your case.

Not all parts of the CPR apply to actions in the Small Claims Court, which is where most cases involving CAG members are likely to be. I hope I’ve marked any bits that don’t apply, but if you want to check yourself (you should!) the link is here:- http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part27.htm (Part 27.2)

[reallymadwoman]

2. What you should know before you start your claim (or what the other side should have done)

There are pre-action protocols which set out the steps the claimant should take for various specific types of claim (possession due to rent arrears, housing disrepair and personal injury are likely to be most relevant to CAG members, but the full list can be found here:- http://www.justice.gov.uk/civil/procrules_fin/menus/protocol.htm )

In addition, there is a general protocol for all other cases, e.g. recovery of debt, unfair charges, consumer disputes, here:- http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_protocol.htm

The stated objectives of the protocols are to encourage exchange of full information at an early stage, help avoid litigation, and manage it efficiently where it can’t be avoided. It would do no harm to bear those objectives in mind whether you are the claimant or the defendant. Have you given full information about your claim, or have you been given the information? If not, someone might be in trouble. Paragraph 2.1 of the Practice Direction – Protocols says
‘The Civil Procedure Rules enable the court to take into account compliance or non-compliance with an applicable protocol when giving directions for the management of proceedings (see CPR rules 3.1(4) and (5) and 3.9(e)) and when making orders for costs (see CPR rule 44.3(a)).’
Put simply, if you don’t want to upset the judge, follow the rules. But, the judge won’t know that the other side haven’t followed the rules unless you tell him, and how can you do that if you don’t know what the rules are?

Paragraph 4 of the general protocol sets out what the claimant and defendant are expected to do as follows:-
(a) The claimant writes to give full details of the claim
(b) The defendant acknowledges the claim promptly
(c) The defendant gives a full written response within a reasonable time
(d) The parties try to negotiate a settlement

[reallymadwoman]

3. If you are the claimant

All letters should be sent recorded or guaranteed delivery so that you have proof it got there

Step 1 – write, setting out full details of what the problem is and what you expect the other party to do. Enclose a copy of any relevant documentation. Give the other party a time limit to reply, but be reasonable. It might be reasonable to expect a reply from your neighbour within 7 days, but probably not from a retail store that probably has to forward your letter to head office.

Step 2 – if you’ve had a satisfactory reply, you won’t need to read any further. If not (no reply, or no satisfactory reply), it may be time for your letter before action. This one is a judgement call. If the other party are asking for time to investigate or more information, if the request is reasonable, it would be sensible to agree. If it’s not reasonable, or you’ve had no reply at all, then send a letter before action.

According to the protocol, the letter before action should include:-
(a) sufficient information for the other party to understand and investigate your claim. It would be acceptable to enclose a copy of your previous letter if that gave full details.
(b) Copies of essential documents if not already sent, e.g. receipts, schedule of charges
(c) Time limits for acknowledgement and a reply. The CPR suggest a month for a full reply, but if you’ve already written with full details and been ignored, I think that’s excessive. Again, reasonableness should rule. Don’t give the other side a weapon to use against you, but don’t unnecessarily delay your claim either.
(d) State whether proceedings will be issued if the reply isn’t received within the time limits. If you have no intention of doing it, don’t threaten it.
(e) Ask for copies of any documents you need from the other side, e.g. your credit agreement that they’ve failed to supply for the last x months. I think this one provides a huge stick to beat DCAs over the head with.
‘I’ve been entirely reasonably, m’lord. I’ve asked for this document x number of times as you can see. Had the defendants provided it …….’
(f) If you’re willing to go to mediation or arbitration, say so.
(g) Include a statement to the effect that the court may impose sanctions for failure to comply with the practice direction. If you’re claiming against an individual or a small business, who is therefore likely to be unrepresented, you should enclose a copy of the practice direction.

[reallymadwoman]

4. If you are the defendant

Read the above information to see what the claimant should have done. If they’re threatening legal action without complying, write back telling them where they have gone wrong and that you will draw it to the court’s attention if they don’t comply.

In any event you should, according to the protocol, acknowledge receipt of the letter within 21 days and say when you will provide a full reply. If this is outside the time limit provided, you need to give a genuine reason which you can back up if necessary. Personally, I wouldn’t wait that long to acknowledge anything (assuming it’s not a DCA threatogram, which can usually be safely ignored), but you would be complying with the practice direction if you did.

Your full reply should state whether or not you accept the claim in full or in part and make proposals for settlement, or state that the claim is not accepted. If you only accept part of the claim, you should make it very clear which part. If you do not accept the claim, or part of the claim, you should give detailed reasons why making it clear which allegations you dispute and which you accept, e.g. I accept that my bicycle and your vehicle were in collision on xx/xx/xx but ….. You should also send copies of any documents you will rely on, any documents the claimant asked for (or say why you can’t send them) and ask for any documents you would like to see – another chance to ask for that CCA, so don’t miss it. Finally, you should state, whether or not the claimant has suggested it, if you are willing to go to mediation or arbitration.

[reallymadwoman]

5. What’s next?
At this stage, both parties are required to make every effort to resolve any dispute without legal action, most often through negotiation, and both parties can be asked by the court to prove that they have tried.
If you are the claimant, and the defendant makes an offer to settle, you have to at least consider it, and I would suggest writing back with detailed reasons why if you feel it is not acceptable. If they write a proper response even without an offer, then I consider you are obliged to reply before heading for the court. If of course they haven’t replied at all, then you have tried and you would probably be justified in going ahead.
If you are the defendant and the first you know about a claim is when the court papers land on your mat, or the LBA (most often from one of our favourite ‘solicitors’) doesn’t give you sufficient time to respond, then I would write straight away promising to draw the courts attention to their failure to attempt to settle without legal action. Just because the other party doesn’t comply, it doesn’t mean you don’t have to.
Even if you have no other grounds to defend, I would enter as a defence that you have not been given an opportunity to negotiate settlement. Entering a defence, whatever the contents, puts the claim on hold until the claimant instructs the court that they want to go ahead, and are they really going to apply for your defence to be struck out and open themselves to criticism? In the meantime of course you will have made every effort to reach agreement with them, and will be able to show the judge all your correspondence to prove how unreasonable they are being. At the very least, you should not have to pay their costs. In any event, you could and should ask now for any documents that you might need to fully consider their claim.

[reallymadwoman]

6. Negotiation has failed, so what do you need to know now?

If you are the claimant, you need:-

Rules for starting a claim are set out in Part 7 of the CPR, here:- http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part07.htm

Part 16 specifies what should go in the Particulars of Claim http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part16.htm

Part 22 details which documents need a Statement of Truth
http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part22.htm

and Part 6 how documents are to be served
http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part06.htm

If you are the defendant you need:-

Part 9 how to respond to a claim
http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part09.htm

and Part 10 how to acknowledge service
http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part10.htm

Part 15 relates to the defence and reply, if you are going to defend
http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part15.htm

and Part 20 to your counterclaim, if you have one
http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part20.htm

and you might also need

Part 16 Particulars of Claim (also applies to the defence) http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part16.htm

Part 22 which documents need a Statement of Truth
http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part22.htm

and Part 6 how documents are to be served
http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part06.htm


You should have read all of relevant parts before issuing your claim or serving your defence, and should refer back to them as necessary. Never rely on what the other side tells you that you need to do. I’ve seen cases on CAG where the other side has told someone their defence only needs to be sent to them and not to the court, resulting in judgement being entered by default. If you are not absolutely sure what a particular rule means or what you need to do, ask (on your own thread, of course). Better to ask a seemingly daft question than get something wrong.

[reallymadwoman]

7. What happens next?

How long is a piece of string? Or, more helpfully, it depends.

For the claimant, the defendant may
(a) acknowledge service
(b) enter a defence
(c) enter an admission, or
(d) do nothing.

If it’s (a) that gives them another 14 days in which to enter a defence, so all you need do is keep the relevant date in mind or better yet, put a big red ring around it on your calendar.
If it’s (b) you will need to read, if you haven’t already, Part 15 above, and enter a reply to the defence and counterclaim if appropriate.
If it’s (c) you need Part 14 http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part14.htm
and if it’s (d) (we wish!) Part 12 http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part12.htm

If you are the defendant, you may need any or all of the above, but read the next section too.

[reallymadwoman]

8. Stuff that doesn’t really fit anywhere else

Before moving on to small claims court procedure, you need to be at least aware that all of the following exist even if you don’t need them right now and might never need them. It’s back to ‘if you don’t know what the rules are..’ or in this case, don’t even know there are rules.

Some types of claim use an ‘alternative claims procedure’. I haven’t researched this at all, so I have no idea what type of claim this might be, but if you need to use it, Part 8 applies
http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part08.htm

There is a specific procedure for setting aside a judgement, or varying a judgement (e.g. if your circumstances change and you can no longer meet the instalments) here:- http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part13.htm

If you need to amend your particulars of claim or defence, this is the procedure:-
http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part17.htm

The general rules for applications are here:-
http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part23.htm

and the rules for Summary Judgement here:-
http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part24.htm

[reallymadwoman]

9. Small Claims Track

Specific rules relating to cases heard in the Small Claims Track are here:-
http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part27.htm

As stated above, not all the CPR applies to small claims, specifically a lot of the rules relating to evidence, Parts 32-34, though you should have at least read part 32 http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part32.htm before arriving at the court, just so you know what might or might not be allowed. One thing that does merit a mention is that Part 18 - http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part18.htm - does not apply, unless the court orders the other party to provide information. However, you can still make a request under Part 18 (there are template letters around on the forum) before the case is allocated, but be prepared for the other side to refuse. If you have still not been sent e.g. your credit agreement or statements by the time the case is allocated, make an application (Part 23 above) for the court to order them to be produced.

Part 27 and the accompanying practice direction (http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part27.htm ) outline the general procedure for small claims, and it would be wise to be very familiar with it well before you get to court. Part 27.14 specifies what costs can and cannot be awarded.

[reallymadwoman]

10. Fast and Multi-Track

I haven’t read any of these, and sincerely hope I never have to. If you need them, relevant rules are here:- http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part28.htm
http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part29.htm

There are also rules about transferring between tracks http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part30.htm
And, as well as all the rules about evidence, there are lots of rules about costs.

[Having_A_Knightmare]

Interesting Thread RMW
Well Done

HAK