Do you have to send a notice of legal action letter before starting legal action?

[dharm999]

As the title says do you have to do this, or can you just go straight to court proceedings?

Thanks

 

[Michael Gerard]

You need to follow the CPR (Civil Procedure Rules) Pre-Action Protocol - you will find a full version on the web.

The Protocol governs what you need to do before you issue proceedings. There are different protocols for different types of dispute (ie there are different protocols for construction and engineering disputes and for PI claims). There is also a general protocol where the type of claim does not fall under a specific protocol.

It is fundamental that you follow the Protocol otherwise you are at a risk of a raft of orders against you, like having your claim stayed or at worse, an adverse cost order, even if you win.

 

[dharm999]

Thanks for that. Had a look, but having read them I'm not sure if they apply to small claims court disputes? Debt involved is less than £2k.

Thanks

 

[Michael Gerard]

You should still send a Letter of Claim, but give 14 days to respond. Good luck.

 

[dharm999]

Charlie

You say should, I assume that doesn't mean must? Sorry to be a bit slow on the uptake. If we dont send the notice letter, would the smal claims court throw out our action?

Thanks
Dharmesh

 

[Michael Gerard]

Yes. Anyone considering commencing court proceedings has to follow the Practice Direction on Pre-Action Conduct. If you do not issue a Letter of Claim, your claim will not be 'thrown out', but the other side may ask for the proceedings to be stayed or you could end up failing to obtain your costs (albeit it will be nominal costs in a small claim), even if you win.

 

[Legalbeagle]

Agree with Charlie. If you don't send a letter of claim, the court has the power to strike out your claim, or disallow part or all of your costs.

I would give 7 days for payment. The protocol sets out "reasonable notice" which isn't defined, and in a business context I am sure you wouldn't get critisised for 7 days, but 14 would certainly be very reasonable.

 

[arcon5]

Why wouldn't you want to send one? It's one final attempt to recover money without having to spend more.

 

[Suzuki]

Why wouldn't you want to send one? It's one final attempt to recover money without having to spend more.

If you know they have money and enforcement is going to be easy, it might be preferable to just run up legal costs that you can claim back, a bit of punishment for some wrongdoing?

 

[The Resolver]

To directly answer the OP's questions:-

1. The CPR and the protocols all apply equally to Small Claims Track cases - however the judge can apply more informality at his discretion.

2. No you do not HAVE to give notice. As has been pointed out the court could punish you for not giving the Defendant an opportunity to negotiate with you to avoid the issue of proceedings. Although the court does not normally order one party to pay the costs of the other, they do have the power where there has been a breach of the CPR or other adverse conduct. However this is VERY rarely actioned.

BTW injunctions can be applied for without notice, eg to stop things being done, if the circumstances justify it.

I do not agree with the suggestion the court could strike out a case for lack of pre-issue notice. The judge has the power in all cases, but would be heavily criticised for doing so as punishment for failure to give pre-issue notice on a case that is not without merit. He must distinguish between litigation conduct and the claim itself.

I can't think what but IF you have some good reason to not give notice then set this out clearly. Are you afraid some diversionary action would be taken if they had notice? Do you want to share it with us?

 

[arcon5]

If you know they have money and enforcement is going to be easy, it might be preferable to just run up legal costs that you can claim back, a bit of punishment for some wrongdoing?

Well that's a choice you can make, but I suspect the significantly larger majority of business owners would just rather get their money and cut all ties rather than embark on a personal vendetta

 

[pepsie]

you should send a 'letter before action' which either: stipulates the defendant has xxx days to make reply with full payment OR makes contact with you to discuss the debt.

Pepsie