Pre-action protocol for debt claims

As of October 1, 2017, the process which a business must go through before starting court proceedings is governed by the Pre-Action Protocol for Debt Claims. Classed as a ‘letter before action’ (LBA), the protocol replaces the seven-day letter which businesses are no longer allowed to send to individuals and other businesses. The protocol describes the way debtors and creditors are expected to behave and the actions they should take before legal action is taken to recover a debt.

The Protocol aims to:

• Encourage early engagement and communication between the parties;
• Enable the parties to resolve the matter without the need to start court proceedings, including agreeing a reasonable repayment plan or considering using an alternative dispute resolution (ADR) procedure;
• Encourage the parties to act in a reasonable and proportionate manner in all dealings with one another, and
• Support the efficient management of proceedings that cannot be avoided.

Businesses (including sole traders and public bodies) can no longer issue a seven-day letter. Instead, they must give a debtor 30 days to reply to an LBA.

Having received the LBA, a debtor can reply by sending the reply form or alternatively request copy documents or information. Having received the response, the business demanding the money (the creditor) must wait 30 days before starting proceedings.

If the debtor is getting advice, the creditor must wait 30 days before taking action, or longer if that is deemed necessary or reasonable.

If the debtor disputes the debt, the parties must try to resolve the dispute as far as possible and this may include seeking alternate dispute resolution.

If, after this, agreement still cannot be reached, the debtor must provide at least a final 14 days’ notice before starting court proceedings.

The result of the entire process can mean that businesses have to wait at least 60 days in disputed cases, and even 90 days in others before they can start court proceedings to recover the debt.

[edit] What information does the protocol require included in an LBA?

• Current 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. The LBA must also state that the debtor has the right to request further information or a copy of the written agreement which will be made available;
• Payment details including the method of, and address of payment, and details of 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, and
• A reply address where the debtor is directed to send the reply form.

The letter should clearly show the date and be posted within a day of the date stated. It must be sent by post unless the debtor has explicitly requested it is sent by an alternative method.

However, this is a process that can be fraught with difficulties, particularly if debtors try to stretch matters out for as long as they possibly can. Courts may also penalise parties that do not follow the protocol. This is why getting proper legal advice in these matters is essential.

[edit] Related articles on Designing Buildings

• Adjudicators and bias.
• Alternative dispute resolution.
• Alternative Dispute Resolution legislation.
• Arbitration.
• Arbitration v Adjudication.
• Breach of contract.
• Causes of construction disputes.
• Conciliation
• Contract claims.
• Contract conditions.
• Dispute resolution.
• Dispute resolution board.
• Expert determination.
• How does arbitration work?
• Joinder.
• Pay now argue later.
• Pendulum arbitration.
• Mediation.
• PFIs and adjudication.
• Seven day letter.
• The Housing Grants, Construction and Regeneration Act.
• The role of the mediator.
• The Scheme for Construction Contracts.