Debt Recovery: What Are My Pre-Action Obligations?

Year Published: 2018

Unfortunately, many of us will often find ourselves in the situation where we are owed money. One way to resolve this is to take Court action. However, if you do not comply with your pre-action obligations before going to Court, this can result in sanctions being imposed. So, it is vital to know what these obligations are.

Natalie Donaldson, Dispute Resolution Solicitor at SAS Daniels

Natalie Donaldson, Dispute Resolution Solicitor

Your pre-action obligations are detailed in the Pre-Action Protocol for Debt Claims (“the Debt Protocol”) which came into force on 1 October 2017 and can be found on the Ministry of Justice’s website. The Debt Protocol applies regardless of whether or not the debt was due before this date.

The Debt Protocol and the Practice Direction encourage early communications between the parties, with a view to resolving matters without the need for issuing Court proceedings.

When does the Debt Protocol apply?

The Debt Protocol applies to any business (including sole traders and public bodies) claiming payment of a debt from an individual (including a sole trader).  However, it doesn’t apply to the following:

  • Business-to-business debts (unless the debtor is a sole trader);
  • Where the debt is covered by another pre-action protocol (for example, disputes arising in relation to construction and/or engineering and also mortgage arrears); and
  • Where the debt is due to HMRC and relates to the recovery of taxes and duties.

What are the main provisions of the Debt Protocol?

Before Court action takes place, a creditor must send a Letter before Action to the debtor which includes the following key information:

  • The amount of debt owed;
  • Whether interest or any other charges are accruing on the debt;
  • The basis on which the debt is due (i.e. whether by an oral or written agreement, when the agreement was made, what was agreed and the parties to the agreement etc); and
  • Details of how the debt can be paid (including details of how to proceed if the debtor wishes to discuss payment options).

The letter should also be accompanied by adequate evidence in respect of the debt (which will differ depending on how the debt has arisen), as well as the Prescribed Information Sheet and Reply and Financial Statement forms annexed to the Debt Protocol.

The debtor will then have a prescribed period of time to complete and return the Information Sheet and Reply Form, request copies of any documents that they wish to see, and also to disclose copies of documents that they consider to be relevant to the dispute.

If a debtor indicates that he or she is taking legal advice when sending their Reply Form, then a creditor should allow a reasonable period of time before issuing court proceedings. A sensible additional period of time to allow would be 30 days.

What are my pre-action obligations if the Debt Protocol does not apply?

If the Debt Protocol does not apply, for example when the debt is a business debt owed by a limited company or a partnership, then you need to ensure that you comply with the Practice Direction on Pre-Action Conduct and Protocols (the “Practice Direction”).

What are the main provisions of the Practice Direction?

The key provisions of the Practice Direction for you to bear in mind are:

  • Before Court action, a creditor must send a Letter before Action to the debtor setting out full details of the claim and providing a reasonable period of time for the debtor to respond. Depending on the complexity of the dispute, this will be 14 days for a straightforward dispute and no more than 3 months in a very complex dispute;
  • The Letter before Action should also be accompanied by adequate evidence in respect of the debt and how it has arisen;
  • A debtor should acknowledge receipt of the Letter before Action within 14 days of receipt if it requires further time to prepare a substantive response; and
  • The debtor should reply with a Letter of Response which responds to all allegations and puts forward the debtors own version of events if an allegation is not accepted. The debtor should also disclose key documents in support of its position.

Litigation can be a costly process, so it is important to make sure that you fully comply with, and explore, your pre-action obligations. By taking legal advice early on in the process, it can help to avoid costly court action and resolve disputes efficiently.

For more information and advice on pre-action obligations, please contact Natalie Donaldson in our Dispute Resolution team on 0161 475 1224.

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