A letter before action is a catch-all term for a letter that sets out a legal claim against someone else, whether a company, partnership or an individual.
Lawyers use different terms – letter of claim, pre-action letter – but all refer to this initial legal letter. It may not be the first piece of correspondence that relates to the dispute in question, but a letter before action is typically the starting gun of the legal process.
In this blog, we explore what a letter before action is and why it is important. We also cover what a letter before action should contain in order to comply with some relevant legal rules on litigating disputes in England and Wales.
What is a letter before action?
The letter before action is a piece of correspondence that sets out (a) the basis of the claim against someone else and (b) what would be required to resolve that claim (the remedy) and (c), ideally, the procedural requirements that the claimant/defendant should follow prior to going to court if the defendant doesn’t comply.
The letter before action doesn’t actually have to be a letter, an email or other written correspondence could suffice. But a formal letter, whether drafted by lawyers or otherwise, is normally the best place to start.
This is because, if the claimant goes ahead to court, it may need to refer to correspondence as evidence of certain things such as compliance with the relevant Pre-Action Protocol (see below) or the date certain facts were first brought to the attention of the defendant. Having that information in one document will be easier for the court to understand and work through rather than a chain of emails or text messages.
When is a letter before action used?
The letter before action would be used in almost any legal dispute. For example:
- Unpaid invoices or rent
- Breach of contract
- Property damage
- Goods or services disputes
- Personal injury claims
- Claims against public bodies
The context and type of claim would typically govern the contents of the letter before action, in accordance with the relevant Pre-Action Protocol and the factual evidence and/or applicable law.
Do you always need a letter before action?
In a broad sense, a letter before action would almost always be appropriate. But there will be circumstances where sending a letter before action would not be necessary.
The prime example is in urgent situations where there simply isn’t enough time to set out the basis of its claim or even notify the defendant that going to court will be required. There may also be circumstances where it is necessary to not “tip off” a potential defendant that a claim is being filed against them, in order to preserve evidence or the defendant’s resources so they cannot move money out of easy reach of the claimant. As detailed below, the court would expect that doing away with the formality of a letter before action is actually required – claimants that abuse court rules and formalities could face sanctions.
There are legal scenarios in which you do not actually know the identity of the defendant (so called “persons unknown”). In such cases, you wouldn’t be expected to prepare a letter that never gets sent!
Finally, there may also be third parties that are relevant to a dispute and could be subject to adjacent legal proceedings (for example, where third parties hold documents relevant to another claim). Again, there would not be a requirement to send a letter before action to that third party but to notify them of the relevant application (if notice is going to be given).
Why bother with a letter before action?
The Civil Procedure Rules (CPR) govern court proceedings in England and Wales, including the rules that apply beforeproceedings are commenced. Most of the pre-proceeding rules are encapsulated in the Practice Directions to the CPR in the form of the ‘Pre-Action Conduct and Protocols.’
There is one overarching protocol that governs all claims at court.
This overarching protocol states that: ‘before commencing proceedings, the court will expect the parties to have exchanged sufficient information to:
- understand each other’s position;
- make decisions about how to proceed;
- try to settle the issues without proceedings;
- consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
- support the efficient management of those proceedings; and
- reduce the costs of resolving the dispute
The overarching protocol goes on to make clear that the ‘parties should exchange correspondence and information to comply with the objectives [above].’ The initial correspondence is typically the letter before action.
If any party fails to comply (it applies to claimants as well as defendants), it can face sanctions for its failures, such as:
- not providing sufficient information for a party to understand its position
- not acting within a specific time limit set out in the overarching protocol or any specific protocol
- unreasonably refusing to engage with alternative dispute resolution
In short, then, a properly drafted letter before action will help the claimant demonstrate that it has complied with the CPR Pre-Action Protocol applicable to it. If the claimant just rushes off to court unnecessarily or acts in an unreasonable way, it can expect sanctions.
These sanctions include:
- costs consequences (e.g. having to pay costs when it otherwise wouldn’t have or recovering a lesser amount from an opponent)
- deprivation of interest on the amount awarded to a successful party
- having to pay more interest than otherwise would have been paid
The court also has procedural powers in the cases of non-compliance. For example, the court can order that the proceedings are stayed until a party complies with part of a Pre-Action Protocol.
Apart from the overarching protocol, there are additional specific protocols that will impose additional procedural burdens. The specific Pre-Action Protocols are:
- personal injury
- resolution of clinical disputes
- construction and engineering
- defamation
- professional negligence
- judicial review
- disease and illness
- housing disrepair
- possession claims by social landlords
- possession claims for mortgage arrears
- dilapidation of commercial property
- low value personal injury road traffic accident claims
- low value personal injury employers’ and public liability claims
- personal injury claims below the small claims limit in road traffic accidents
These specific Pre-Action Protocols vary in terms of their requirements. For example, the professional negligence Pre-Action Protocol allows a length period of time for a defendant to respond to a letter before action.
The personal injury Pre-Action Protocol, however, has split time limits, which are ultimately shorter than the requirements in the professional negligence Pre-Action Protocol.
Contents of a letter before action
Under the overarching Pre-Action Protocol describes what should be set out in a letter before action:
‘the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated’
The overarching Pre-Action Protocol also refers to the disclosure of documents. If relevant (for example, because a defendant doesn’t have access to a specific document), the letter before action should provide the document as an attachment. Alternatively, the letter before action could also request documents from the defendant.
Again, these express requirements will vary depending on the Pre-Action Protocol in question. For personal injury, there is a set table of information that needs to be provided to the defendant. In the defamation Pre-Action Protocol, reference would need to be made to relevant legislation and common law principles to be complaint.
A standard letter before action should also include:
- whether any expert evidence would be required
- the proposals for any alternative dispute resolution and/or settlement (or a reason why alternative dispute resolution isn’t viable)
- the timeline for a response – under the overarching Pre-Action Protocol, the minimum is 14 days, but the defendant may get more time if the claim is complex
Pitfalls
Non-compliance with the relevant Pre-Action Protocol is, of course, the key issue with a letter before action. Drafting an unclear letter before action or ignoring other requirements can lead to sanctions.
But there are other pitfalls that can often be forgotten, especially in the stress of commencing legal proceedings:
- Threats – unreasonable or unprofessional language can itself be non-compliant with the Pre-Action Protocol. If you’re using lawyers, solicitors are prohibited from making unjustified threats
- False claims – knowingly making a false statement in a letter before action is contempt of court, even if the case itself never gets to court
- Tactics – using a letter before action to gain an unfair advantage (e.g. by enclosing so many documents that it is impossible to review without significant cost) is prohibited under the overarching Pre-Action Protocol
- Time limits – under the CPR, days are counted as “clear days” meaning that the day on which the period begins does not count, and, if a period is defined by an event, that event doesn’t count either. If the period is 5 days or less, weekends, bank holidays, Christmas Day and Good Friday do not count
- Limitation periods – sending a letter before action has no impact on any statutory time limits for bringing a claim. If a letter before action is sent too late, filing a claim at court to ensure that you comply with any statutory time limits could also mean that the relevant Pre-Action Protocol is breached
Conclusion
A properly drafted letter before action is a good way to focus minds and encourage an out of court settlement. As most claims in England and Wales do not end up in court, the letter before action is usually a claimant’s best opportunity to convince the defendant to settle.
As such, it is important to get it right. That is where a solicitor can come in. At EM Law, we are experts in civil litigation. If you need assistance developing a letter before action or responding to one, please do not hesitate to reach out to Sasha Bark-Jones or Colin Lambertus directly, or contact us here.
