I receive emails from people asking for free legal advice. This normally means taking on a pro bono case for them. I wish I could. But my firm doesn’t allow this, and I am not paid enough to subsidise others. Instead, the next best thing I can do is provide some free guidance.
Fundamentals before drafting a letter of claim.
(1) Identify if it is governed by a pre-action protocol (http://www.justice.gov.uk/courts/procedure-rules/civil/protocol)
(2) Read the protocol that applies. If your dispute does not fall within a protocol (which most contract disputes do not
as most emails to me relate to contract law) then use the practice direction for pre-action conduct.
(3) Read the protocol/practice direction a further 2 times. Let it sink it. Remember, this is just the ADMINISTRATION of the claim. It does not determine who wins or loses; think of it as the guidance of how a claim should be handled by both sides.
Preparing the letter of claim
(1) Introduce the claim. Include key items such as:
- identify of the claimant(s) and defendant(s)
- date(s) of incident(s) allegedly giving rise to cause of action
- explain the protocol/practice direction you intend to comply with
- outline the timeframe for which you require compliance from the other side (e.g.acknowledgment within 14 days and substantive response within 28 days)
- point out the other side should refer the matter to their insurance company if it will be relevant
(2) Highlight the key facts and evidence. This may include:
- explanation of who the parties are (e.g. a consumer, a tradesman, a supplier, a manufacturer, a property owner, landlord, tenants, etc)
- provide a brief factual background
- explain the relevant facts that you are alleging happened (e.g. date of parties entering into a written contract)
- put forward the evidence you have in support (e.g. copy of emails, written contracts, receipts, photographic evidence, expert evidence, independent third party witnesses such as an attending police officer)
- as an aside, mention the loss and damage that has been suffered
(3) A section on liability must be outlined. This should explain:
- why the claimant holds the defendant liable
- the relevant EU law or statute that has been breached
- any relevant secondary legislation that was breached (e.g. a statutory instrument)
- allegations of non-statutory breaches such as negligence or nuisance
- how or why the defendant is liable
(4) The quantum of the claim should be outlined. This should include reference to any enclosed documents such as invoices, estimates,quotes, etc. Make sure you mention if the claim has been finalised or other items are outstanding (e.g. ongoing building repairs)
(5) Include a section on documents. State the documents you rely upon in support of the claim and enclose them. Do not forget to state the documents you seek to be disclosed by the defendant (e.g. risk assessments, report logs, work orders, etc). Threaten a pre-action disclosure application if these are not disclosed voluntarily within a set timeframe.
(6) Outline your funding. If you are handling this yourself as a litigant in person then do not mention this. If however there is a CFA or you have taken out After-The-Event insurance this should be communicated to the defendant.
(7) Offer to settle the claim by way of Alternative Dispute Resolution before litigation. Protect yourself with including this as a separate section. Make it clear that you want to “do a deal” without going to Court. A simply offer to handle this by way of a without prejudice telephone discussion could be sufficient for a relatively low value claim. You don’t have to immediately run off to an expensive mediation.
(8) Provide an overview. Explain what you want from them such as compliance with the protocol/practice direction, or a meeting, or simply ask for a settlement cheque. Highlight that if liability is denied then you require a substantive response along with voluntary disclosure.
Once all of the above has been completed, sit back and wait for the response. You should read the protocol/practice direction again after you have received their response. I would recommend then taking your case to the local Citizen’s Advice Bureau if you are unable to afford to pay for a solicitor. They will be well placed to advise you further. This may include them telling you that your claim is doomed to fail, reasonable and needs to be presented better, or encourage you to litigate through a well-known pro bono or “CFA friendly” local solicitor.
Over and out.