Do I need to see an LBA before action can be taken?

[oldshowman1953]

A company had issued a small claim against me for £780, which I admit, but the claim came out of the blue. They say that they sent me a letter before action, which I genuinely never saw so now I have just a few weeks to acknowledge, admit and pay, or defend.

 

I do intend to pay this off but I haven't got the full amount at the moment so I have sent emails to them about this but they seem determined to let the courts do it's worse and are not accepting any offers. It looks like I need to enter a defence just to stop them from getting a judgement against me, which should give me the time to pay off before the case comes to court.

 

Can I use the lack of an LBA as a defence, in that they never gave me the chance to make any arrangement, or is it not a legal requirement, and does anyone know how long it takes for a case to be heard nowadays please, so that I know how long that I've got to save up! I've already paid about £100 since I received the claim, but I don't suppose that that helps me does it?

[AndyOrch]

Pre Action Protocol would come into play here if you genuinely was not aware of litigation being commenced.

 

Regards

 

Andy

[oldshowman1953]

Thanks, but if they haven't followed pre-action protocol (which I have just done a quick search on) can I at least base my defence on that? In other words can I defend purely on the basis that pre-action protocol wasn't followed and get the claim 'struck out'?

[Ganymede]

Thanks, but if they haven't followed pre-action protocol (which I have just done a quick search on) can I at least base my defence on that? In other words can I defend purely on the basis that pre-action protocol wasn't followed and get the claim 'struck out'?

 

 

The short answer is no, it would only affect costs.

[marloes]

In response to how long it takes to go to court, - that depends on several variables e.g the backlog at your local court. For example a claim was issued against me last March and the first time I went to court was the end of September. Also many small courts have now been closed and the cases transferred to larger courts making waiting times even longer. Hope that gives you an idea. Why not ring the court up and ask them the average time - they will have the best knowledge.

[asokn]

I think the guidelines are 20 weeks from issue to hearing but, as said above, just phone the court and ask.

[Anne Procter]

Potential defendants should consider making a counter offer to settle as soon as they are in a position to properly evaluate the potential claim. If the offer to settle is formally made under CPR Part 36 the threat of the claimant potentially being liable for the defendant's costs from the latest date that the pre-action offer could have been accepted if the claimant subsequently fails to beat the defendant's pre-action offer at trial should concentrate the potential claimant's mind on resolving g the dispute sooner rather than later.

Under CPR Part 36 the potential defendant will need to balance this against the fact that once proceedings have commenced, his pre-action offer will have to be backed up with a payment into court within 14 days if it relates to a money claim and he may be deprived of funds for a long period. If the claimant is threatening court you should make your offer under CPR 36.10, if the claimant has already issued proceedings you should make your offer under CPR 36.5.

Note,in circumstances where the defendant finds it difficult to make a formal Part 36 payment because of a lack of resources, he may only be able to afford to make an order by way of instalments. The court should be prepared to take such an offer into account notwithstanding that it should normally have been backed up by a Part 36 payment into court.

[Gaston Grimsdyke]

Think you need to brush up on your CPR. Payments into court were abolished years ago.

[MARTIN3030]

My Court had a notice up advising of this -I think it was around 2007/8

[MARTIN3030]

Yes it became effective from 6th April 2007

 

1.1 Abolition of Payments into Court

The key change to Part 36 is the abolition of the requirement that a defendant must make a payment into court if it wishes to make an offer to settle a monetary claim. Under the new rules it is not necessary for a defendant to pay any money into court in order to gain the costs protection set out in Part 36. Instead, both claimants and defendants can now obtain that costs protection by making a written offer of settlement in the form of a Part 36 offer.

[Anne Procter]

Hi Martin3030, thanks not disagreeing.

 

Do you agree that that it would be wise to be taking control by formalising an offer under Part 36 though?

[AndyOrch]

Paragraph 7 of the Practice Direction deals with exchange of information before the start of proceedings and suggests that:

• the letter of claim is sent.
  
• the debtor should acknowledge the letter within 14 days and give a full response within a reasonable period of time, which for a straightforward undisputed debt is generally 14 days.
  
• Annex B to the Practice Directions sets out specific information that should be provided before starting proceedings in a debt claim by a claimant who is a business against a defendant who is an individual.
  

Annex B makes provision for the information a claimant business should provide to the individual debtor and this is that the claimant should:

(1) provide details of how the money can be paid (for example the method of payment and the address to which it can be sent);

(2) state that the defendant can contact the claimant to discuss possible repayment options, and provide the relevant contact details; and

(3) inform the defendant that free independent advice and assistance can be obtained from organisations including those listed in the table below.

 

Regards

 

Andy