Pre-Action protocol

[smintram]

RE: letter before claim.... Pre-Action Protocol: In response to a letter of claim, the claimant is given 30 days by the respondent to produce requested proof of their claim. The claimant wants a minimum of 45 days in order to do so. Is that acceptable or allowed under the rules?

[R0b]

I would say so.

Litigation is considered to be a last resort and if the claimant doesnt have the proof then they would be wise to obtain proof before issuing legal proceedings.

Assuming it is a breach of contract type claim, they have 6 years to pursue it so an extra 15 days isn't much of a concern. They could take as long as they like wiliken the 6 year period if they wanted to pursue you.

As you've given no background informainforto the claim, you'll need to provide more information if you want further assistance.

[smintram]

Hi Rob
It's an alleged debt claim. Claimants solicitor states that his client can't produce within the time-frame of the direction protocol rules.

[R0b]

Well then unless legal proceedings have been issued, the Claimant can take as long as they like provided they are within the 6 year period.

[smintram]

sorry...maybe I'm missing something...

1. Letter of pre-action sent by claimant.
2. Pre-action protocol kicks in.
3. Respondent expected to comply by the protocol rules and respond within 14 days, or 30 if seeking advice.
4. Claimant non-compliance is acceptable contrary to section 5.2 of the protocol?

Is the court’s approach to compliance therefore one sided?

I'm not really getting it.

[2222]

The thing is:

7 COMPLIANCE WITH THIS PROTOCOL 7.1 If a matter proceeds to litigation, the court will expect the parties to have complied with this Protocol. The court will take into account non-compliance when giving directions for the management of proceedings. The court will consider whether all parties have complied in substance with the terms of the Protocol and is not likely to be concerned with minor or technical infringements, especially when the matter is urgent. 7.2 For further information about the court’s approach to compliance, see Practice Direction – Pre-Action Conduct and Protocols (paragraphs 13 to 16).



Apart from that, which para of the PAP are you saying has been breached?
You can find a copy here: https://www.justice.gov.uk/courts/pr...s/debt-pap.pdf

I can't see where the PAP says that the claimant only has 30 days to provide documents, but perhaps I have missed it?

[R0b]

2222 is right, the pre-action protocols are just that. The protocols are a set of rules that the courts expect parties to comply with prior to issuing a claim, but if the claimant cannot provide the requested documents within the 30 day period, that doesn't mean they are prohibited from issuing a claim. They could still take their time to source those documents and then provide them to you at a later date in which case, they should afford you a reasonable amount of time to consider your position.

If they do issue proceedings without complying with the protocols, then a court can exercise discretion and reduce their damages amount or make an adverse costs order in some way.

2222 see below regarding the 30 day period and its relevance.

4.2 If the debtor indicates that they are seeking debt advice, the creditor must allow the debtor a reasonable period for the advice to be obtained. In any event, the creditor should not start court proceedings less than 30 days from receipt of the completed Reply Form or 30 days from the creditor providing any documents requested by the debtor, whichever is the later.

...

5.2 If the debtor requests a document or information, the creditor must:-
(a) provide the document or information; or
(b) explain why the document or information is unavailable, within 30 days of receipt of the request.

[2222]

Thanks, Bob. I missed 5.2 (b).

[smintram]

So, is 5.2 therefore relevant in a big way? and does anyone know what type of solicitor would be appropriate in this field....thanks

[R0b]

It's relevant in so far as their non-compliance if they choose to issue a claim without providing the requested information, and that a court has discretion to penalise them in the way that I mentioned in my last post.

If you want to seek legal advice then you need to be looking for a litigation lawyer and are also known as dispute resolution lawyers.

You are only at the pre-action stage and they have yet to provide you with the documentation so it might be a bit premature to go to a lawyer at this stage and you might be better off waiting until the documents you've asked for have been disclosed.

Even still, a lot of us on here are experienced and we may be able to assist you at least to some extent without you needing to seek legal advice and pay for it. So if you are prepared to give us some background then we could try and point you in the right direction.

I'm also tagging Amethyst jaguarsuk for further comments

[jaguarsuk]

The point is that if they were to source the documents at a later date they could simply send you another Letter Before Action with that documentation giving you 30 days to respond.

In that instance I don't think a court would really make any sanction against them.

[2222]

So, is 5.2 therefore relevant in a big way? and does anyone know what type of solicitor would be appropriate in this field....thanks

The PAP says "The court will consider whether all parties have complied in substance with the terms of the Protocol and is not likely to be concerned with minor or technical infringements". Yes, this is an infringement, but it appears to me to be really minor or technical. There is no disadvantage to you at all, as far as I can see, but perhaps you can spot one?

[pt2537]

The PAP says "The court will consider whether all parties have complied in substance with the terms of the Protocol and is not likely to be concerned with minor or technical infringements". Yes, this is an infringement, but it appears to me to be really minor or technical. There is no disadvantage to you at all, as far as I can see, but perhaps you can spot one?

I agree, its hardly going to be viewed by the Court as a serious breach, its more likely to result in a costs order being reduced if the case goes to trial and they win, or an indemnity costs order if you win at trial and they lose.

[smintram]

Thank you all....and Rob...I don't know what I could say which wouldn't identify the situation to the bottom feeders, who I'm convinced, read these forums. I'll try...let me know what you need to know... Do you think the other parties solicitor would likely "show" if a hearing was scheduled at the other end of the country..say 200 miles away? And...If, a CCA request was part of the requested information of the PAP, does not the Consumer Credit Act allow 12 working days for this request to be carried out before the company enter into a default situation. If the request is not satisfied after a further 30 calendar days, the company commit an offence. Just an after thought.......sorry for the quickie
replies..in a rush to work

[helpmeunderstand]

Watch yourself if using Money Claims on Line (MCOL) if you are using the N1 form because they have a on-line version of the form but the terms and conditions attached to the on-line form are nothing like the original terms of the standard N1 form and the web-site tries to hide this fact using misguiding "BIG RED BOLD TEXT" to divert attention away from these facts.

Some links don't work on the site and the .pdf software they use to process submitted documents is broken and does not see text in some of the text boxes.

We regret ever trying to save 10% on costs and using MCOL to proceeded with the case and are happy that the case was transferred to the local courts.