A letter before action is a formal letter setting out a legal claim against another person or organisation. It is usually the first formal step before court proceedings are started. You may have also heard of this referred to as “a letter of claim” or “pre-action letter”
What is a letter before action?
A letter before action explains:
- the basis of the claim and the key facts;
- what the claimant wants the defendant to do to resolve the matter, such as paying compensation; and
- what steps should be taken before court proceedings are issued.
Although it is usually sent as a letter, it can also be sent by email or, in some circumstances, communicated by telephone. A formal written letter is best to ensure there is a clear record of what was said and when.
This can be important if the matter goes to court, as the correspondence may help show that the parties complied with the relevant Pre-Action Protocol and that the defendant was made aware of the claim.
When is it used?
A letter before action can be used in most types of civil disputes, including:
- unpaid invoices or rent;
- breach of contract;
- property damage;
- disputes about goods or services;
- personal injury claims; and
- claims against public bodies.
The contents and requirements will depend on the type of claim and any applicable Pre-Action Protocol.
The Civil Procedure Rules (CPR) govern civil court proceedings in England and Wales, including the steps that should normally be taken before a claim is issued. The Pre-Action Protocols are designed to encourage parties to understand each other’s position, exchange relevant information, consider settlement or Alternative Dispute Resolution (ADR), and avoid unnecessary court proceedings.
Following these requirements is important. A party that fails to comply may face consequences, including costs or interest penalties. The court can also order that proceedings are paused until the relevant requirements have been met.
There are specific Pre-Action Protocols for certain types of claims, including personal injury, professional negligence, construction and engineering, defamation, judicial review, housing disrepair and possession claims.
Please be aware that these protocols have different requirements and time limits.
What should it include?
Under the general Pre-Action Protocol, a letter before action should normally explain:
- the legal and factual basis of the claim;
- what the claimant is asking the defendant to do;
- how any amount claimed has been calculated;
- any relevant documents or evidence; and
- the proposed next steps and deadline for a response.
It should also consider whether ADR or settlement is appropriate and, where relevant, identify any expert evidence that may be required.
The deadline for responding will depend on the applicable Pre-Action Protocol. Under the general protocol, 14 days is normally the minimum, although more time may be appropriate for complex claims.
Common pitfalls
A letter before action should be clear, accurate and reasonable. Common mistakes include:
- Unreasonable threats or language: The letter should remain professional and should not make unjustified threats.
- False statements: Knowingly making a false statement can have serious consequences, including potential contempt of court.
- Unreasonable tactics: A letter should not be used to make it difficult or expensive for the other party to respond.
- Incorrect deadlines: Time limits should be calculated carefully in accordance with the CPR and the relevant Pre-Action Protocol.
- Ignoring limitation periods: Sending a letter before action does not stop or extend a statutory limitation period. If a limitation deadline is approaching, issuing a claim may still be necessary to protect the claim.
In summary
A well-drafted letter before action clearly explains what the dispute is about, why the defendant is responsible, what is being requested and what happens next. It also helps demonstrate compliance with the relevant Pre-Action Protocol and gives the parties an opportunity to resolve the dispute without going to court.
If you have received a Letter Before Action or are considering sending one, it is important to understand your position and take the right steps before court proceedings begin.
Hartley Law can help you assess your options, prepare a clear Letter Before Action and ensure the appropriate pre-action requirements are followed.
Get in touch with Hartley Law to discuss your situation and find out how we can help.
