County Court - pre-action protocol for debt claims

 October 2017

Fact sheet no. 56 EW County Court - pre-action protocol for debt claims

This fact sheet explains what the pre-action protocol for debt claims is. It may affect you if a creditor is thinking of taking court action to recover money. It also tells you how to reply to the paperwork a creditor should send you before starting a court claim.

Use this fact sheet to:

  • find out when you might receive a letter of claim;
  • understand how to reply to a letter of claim;
  • find out more information about a debt; and
  • learn about resolving disputes.

What is the pre-action protocol for debt claims?

The pre-action protocol for debt claims will apply if a creditor thinks you owe them money and they are considering starting court action to recover it.

It describes the way you and the creditor are expected to behave, and the actions you should take, before a court claim for payment of a debt is started. The court prefers that court action is avoided whenever possible and the protocol is designed to help with this. Where court action cannot be avoided, both you and the creditor should try to act in a fair and reasonable way. This is to try and avoid causing costs and delays that are not necessary.

The protocol applies to any business (including sole traders and public bodies) claiming payment of a debt from an individual (including a sole trader).

Before court action

The court expects people to do all they can to avoid court action. It expects both you and the creditor to give each other a reasonable amount of information, so that each side can understand the other's position. It also expects you to try to reach an agreement if you can. If you are not sure that the creditor has behaved properly, contact us for advice.

Letter of claim

Before the creditor starts court action by sending you a claim form they should send you a letter of claim. The pre-action protocol sets out what the letter of claim should include.

  • The letter should tell you the amount of the debt and whether interest is being added.
  • If there was no written agreement, the letter should tell you who made the agreement, what was agreed, and when and where it was agreed.
  • If you signed a written agreement, the letter should give you the date of the agreement, details of anyone else who signed it and tell you that you can ask for a copy of the written agreement from the creditor.
  • If the debt has been sold on to a debt collecton agency, the letter should give you details of the original debt and creditor, when it was sold on and which company it was sold to.
  • If you are already offering or paying regular instalments, the letter should explain why a court claim is still being considered.
  • The letter should give details of how you can pay the debt, such as where and how to pay, and how you can discuss payment options if you need to.
  • The letter should include the address where you should send the completed form.

The letter of claim should be sent by post, either on the date shown at the top of the first page, or if that isn’t reasonably possible, the following day. If you gave the creditor extra contact details, such as your email address, the creditor may also send the letter of claim using those details. If you requested that the creditor doesn't post information to you, and have provided other contact details, the creditor should use those details to send the letter of claim to you.

The letter of claim should also include helpful information and other forms.

  • The information sheet – this is a guide which explains your rights, and gives you a step-by-step guide on what to do next.
  • The reply form – you need to send this back to the creditor within 30 days. Use the reply form to tell the creditor whether you owe the debt or not, to request more information or to let them know you are seeking advice.
  • A statement of means form – this is similar to your personal budget. Complete the statement of means form to tell the creditor about your circumstances, your income and expenditure, and any other debts you owe.

Statement

The letter of claim should:

  • include an up-to-date statement of account for the debt;
  • include the most recent statement of account for the debt and inform you of any additional interest and charges added since; or
  • tell you the amount of interest and charges added since you took the debt out, if no statements have been provided.

How do I reply to a letter of claim?

If you receive a letter of claim you should also receive a reply form with it. You need to send the creditor your completed reply form within 30 days of the date at the top of the letter.

Section 1

This section of the reply form allows you to say whether you owe all of the money, some of it, none of it, or that you don’t know if you owe anything.

Warning:

reply within 30 days

If you do not reply to the letter of claim within 30 days the creditor may start court action. The creditor should bear in mind that if you posted it to them near the end of the 30 day period it might take slightly longer to reach them.

Section 2

If you agree that you owe all or some of the money being claimed you need to complete Section 2 of the reply form. This section allows you to say whether you can afford to pay the whole amount immediately, or if you will need to pay by instalments. If you need to pay by instalments, you can include a completed budget (known as a statement of means on the reply form) to show how much you can afford. It is a good idea to complete a budget before making a payment offer to make sure it is realistic and affordable. Contact us for advice if you need help completing your budget.

Important:

incomplete form

If you are not able to fill in every section of the reply form, perhaps because you are not sure of some of the details or you don’t understand something, it is still important to return it to the creditor within 30 days.

The creditor should try to contact you to discuss the form if you have returned it without filling in every section. They should do this before starting a court claim.

Section 3

If you are receiving, or planning to seek debt advice on whether you owe the debt you can explain this in Section 3. You may also need debt advice on whether you can afford to pay the debt back. If it will take you longer than 30 days to get advice you should give the reasons why and say when you expect to get advice.

Section 4

You may not be sure whether the amount the creditor is asking you to pay is correct, or you may want more evidence to be sure. You can use Section 4 to ask the creditor to send you more documents. You can also send the creditor any documents you think are important, such as details of payments you have made which haven’t been taken off the amount they say you owe. You need to tell the creditor what you have provided and explain why you think it is relevant.

Requesting information

If you ask for a document or information the creditor must either provide it, or explain why it is not available, within 30 days.

It may be useful to ask for a copy of your credit agreement if you signed a written agreement when you took out the debt. If you receive a copy of your credit agreement you can check the terms and conditions. This may help you work out whether you owe the amount of money being claimed.

For certain types of debts, if the creditor cannot provide you with a copy of the credit agreement when they should be able to, it may affect their court claim. Contact us for advice.

Time limits for court claims

When thinking about how to reply to a letter of claim it’s a good idea to think about whether there is still time for the claim to be made.

The Limitation Act 1980 sets out the rules on how long a creditor has to take certain actions against you to recover a debt. The time limits are different depending on the type of debt that you have.

Warning:

re-starting the time limit

If you confirm that you owe the debt when you reply to the creditor you may re-start the time limit they have to start a court claim. Contact us for advice.

 

Trying to settle and resolve disputes

Under the pre-action protocol for debt claims, the court would like both you and the creditor to try and deal with any disagreements before court action is started. This means that if you disagree that you need to pay the money being claimed, you should try to discuss this with the creditor and consider using alternative dispute resolution (ADR).

ADR might simply mean talking to the creditor to discuss your disagreement and come to an arrangement. It can also mean making a formal complaint to a regulatory body, or using a mediation service where a neutral organisation helps with the discussions. Mediation providers are likely to charge a fee, so it may not be suitable in all cases. You can find details of registered mediation providers on the Civil Mediation Provider Directory.

If you come to an agreement with the creditor over repaying the debt, they should not take court action as long as you keep to the agreement.

What happens if you or the creditor do not follow the protocol?

If the creditor makes a court claim, the court will expect both you and the creditor to follow the protocol. The court will look at whether the main points have been met. If some minor details were not met by either you or the creditor, the court may still find this acceptable.

If you receive a letter of claim and do not reply within 30 days, or you do not follow the pre-action protocol in any other way, the creditor can ask the court to increase the debt. They do not have to do this and are unlikely to do so if you agree you owe the money. But if the court feels the protocol was not followed closely enough, it can add an extra amount of interest to the debt, on top of any interest already claimed by the creditor.

Important:

court claim

If you reply to the letter of claim but cannot come to an agreement with the creditor, they should give you at least 14 days notice that they intend to start a court claim.

The creditor should not start a court claim within either 30 days of receiving the completed reply form, or 30 days of providing you with the documents you asked for.

If the creditor does not follow the protocol and they eventually win their court case, the court may reduce the amount of any interest added to the debt.

If you do not follow the protocol, the court may decide that you have to pay all of the court costs. If the creditor does not follow the protocol, they may have to pay all of the court costs. Contact us for advice if you think the creditor hasn't followed the protocol.

What should I do if I receive a claim form?

If you receive a county court claim form it is important to reply in the correct way. Don’t ignore it as you could make the situation worse.

The correct way to reply to a court claim will depend on whether you agree or disagree that you owe the money, and whether you need extra time to seek advice. Contact us for advice.