The Ministry of Justice has published the Pre-Action Protocol for Debt Claims (Protocol), which comes into force on 1 October 2017. The Protocol is designed to define the conduct the court will normally expect of the parties prior to the start of court proceedings.
The necessity for a Debt Pre-Action Protocol was initially raised by Lord Justice Jackson in his Final Report on Civil Litigation Costs published in January 2010, on the grounds that debt claims “constitute a huge swathe of business of the courts’ and needed their own specific protocol.” Currently the pre-action position for dealing with a debt claim is that the parties should follow the Practice Direction Pre-Action Conduct and Protocols because there is no specific protocol for debt claims.
From 1 October 2017, the Protocol will apply to any business (including sole traders and public bodies) claiming payment of a debt from an individual (including a sole trader). The Protocol will not apply to business-to-business debt unless the debtor is a sole trader.
Aims of the Protocol
The Protocol’s aims are to –
a) encourage early engagement and communication between the parties, including the early exchange of information about the matter to help clarify whether there are any issues in dispute;
b) enable the parties to resolve the matter without the need to start court proceedings, by agreeing a repayment plan or considering using an Alternative Dispute Resolution (ADR) procedure;
c) encourage the parties to act in reasonable and proportionate manner in all dealings with one another;
d) support the efficient management of unavoidable court proceedings.
Initial information to be provided by the creditor
The creditor is required to send a letter of claim to the debtor before court proceedings are started. The letter should contain information including the amount of debt and any interest or other charges, details of the agreement under which the debt arises, details of how the debt can be paid, and what the debtor can do if it wishes to discuss payment options. The Protocol sets out the further information that should be included within the letter of claim.
The letter of claim must be dated and posted the same day or following day. The creditor is also required to provide the debtor with a reply form.
Response by the debtor
The debtor should respond by completing the reply form sent by the creditor. The debtor can also request copies of any documents from the creditor, and also enclose documents they feel are relevant to the matter.
The creditor should not commence proceedings until, the earliest, 30 days from receipt of the completed reply form. This period may be extended if the debtor is seeking legal advice, requests further documents or requires more time to reply.
Settlement / Alternative Dispute Resolution (ADR)
The Protocol encourages the parties to consider ADR if they are unable to resolve the dispute. However, the parties are warned to take into account the potential cost of any ADR as against the amount of the debt.
If agreement is reached, the creditor should not start court proceedings while the debtor complies with the agreement. If the debtor subsequently breaches the agreement, the creditor must send an updated letter of claim and comply with the Protocol afresh before issuing court proceedings.
If the debtor responds to the letter of claim but an agreement cannot be reached, the creditor should give the debtor at least 14 days’ notice of their intention to start court proceedings.
Compliance with the Protocol
If court proceedings are commenced, the court will take into account non-compliance but the court is not likely to be concerned with minor or technical infringements.
Business should make themselves aware of the new procedure with effect from 1st October 2017 and ensure that they revise their pre-action procedures to ensure they are complaint.