before the first solicators letter

[Guest]

Good evening , can someone with greater expertise clarify this for me as there are some shady solicitor firms that do NOT conduct there self's this way, im sure if this is right it could be used at some stage as due diligence has not been given by the solicitor,

Before taking on a debt claim, a solicitor 'must be able toidentify
1) How the debt arose, including the dates of the underlyingcontract and of the payment obligation ..the CONTRACT DOCUMENTATION (if therewas anything in writing) and the invoice (if any) being sued upon.
2) Precisely how much is owed. .
3) Details of what has happened since the amount fell due.Have reminders been sent, and have copies been given to (the solicitor) Hasanything been paid on account? Has the debtor given any reason for non-payment,and do they have any merit?
4) Whether a demand for payment, or some other documents,such as a default notice, is required. If so, was it sent, or does it need tobe sent at this stage BEFORE THE FIRST SOLICITOR'S LETTER is written?
5) (talks about where debt assigned, ensuring formal noticegiven).
ALL DOCUMENTS RELEVANT TO THE CLAIM WILL HAVE TO BE RETAINED& GIVEN TO (SOLICITOR) FOR THE PURPOSES OF THE CLAIM.

[Lewis]

Re: before the first solicators letter

Hi,

I too would be interested to know what is the minimum information a solicitor should obtain from their client to comply with "due diligence" before they start pursuing a debt. Do they also have a duty of care to the debtor?
The OP's list seems pretty comprehensive and I cynically suspect a 'roboclaims' type of operation would be unlikely to have much more than a computerised batch of outstanding balances and the names and addresses of alleged debtors.

[Amethyst]

Re: before the first solicators letter

Things will be better ( hopefully ) in October.

A new pre-Action Protocol for Debt Claims is introduced and comes into effect on 1 October 2017.The new protocol can be seen in the Pre-Action Protocol for Debt Claims (PDF)
Source: Civil – Civil Procedure Rules
The rules bring in new requirements for creditors to provide full information about a debt, including a statement of account and details of charges, and inform the debtor of his right to request copies of any agreement the debt may be based upon, at the letter before claim stage of proceedings.
The creditor must give debtors 30 days to respond to the letter before claim, and provide a form for the debtor to complete indicating whether they are seeking debt advice, wish to pay the debt or have a dispute over the debt.
Should a claim continue to the courts the court will consider the parties compliance with the new protocols when managing the case.
The information and reply sheets are included in Pre-Action Protocol for Debt Claims (PDF) in the Annex.

The OP's list seems pretty comprehensive and I cynically suspect a 'roboclaims' type of operation would be unlikely to have much more than a computerised batch of outstanding balances and the names and addresses of alleged debtors.

I'd tend to agree there.

[Lewis]

Re: before the first solicators letter

Thank you Amethyst, it is very helpful information, but that is from next October. The OP's list includes some of the upcoming requirements but is it possible to clarify what precisely a solicitor should be doing now to ensure due diligence.

My reading of the OP's query is that he is seeking information that might aid a complaint to the SRA, Legal Ombudsman, Information Comissioner and perhaps the OFT about the conduct of the solicitor. Perhaps the OP would comment please?

[Amethyst]

Re: before the first solicators letter

The FCA Rules are https://www.handbook.fca.org.uk/hand.../?view=chapter (OFT died in 2014 )

SRA rules https://www.sra.org.uk/solicitors/handbook/code/

[R0b]

Re: before the first solicators letter

Hi Lewis,

I think any complaint based on the OP's original list might be difficult especially if you wish to complain to the SRA for example. Of course, solicitors have a code of conduct and duty towards their clients and third parties but to my mind, the list above is merely the elements towards proving a breach of contract which, the onus is on the Claimant to prove in order to obtain damages. A solicitor will have certain duties to the client and will give advice about how successful the claim might be (acting in the best interests) based on the evidence they have reviewed (usually on a % basis) but if the client wants to press ahead and bring a claim anyway then it is at the client's risk and the solicitor will do their best to spin in a way to show their client has a real prospect of success and is entitled to the debt because (under the Code) they have to also provide a proper standard of service to their client.

Chapter 11 of the SRA deals with solicitors and third parties and one of the Outcomes (which are mandatory) is not to take advantage of those who are not represented by a lawyer. Whether a solicitor is in breach of that outcome will depend on the individual cases however the current SRA Code of Conduct is a bit naff on giving examples of this. I am not sure if you can access the old SRA Code of Conduct which is 2007 I believe, but if you can, that provides more helpful guidance on solicitors complying with the Code.

There is recourse for defendants by way of applications for summary judgment and strike out which enables courts to deal with meritless claims swiftly before either party incurs further expense. There is also case law which suggests that if the Claimant didn't carry out sufficient pre-legal investigations and evidence to formulate the particulars of claim, then it had no right to bring a claim in the first place and will amount to an abuse of process resulting in the claim being struck out. If however the solicitors are misleading the court then that will be a conduct issue by which the solicitor in question can be sanctioned by the SRA.

Hope that helps