New Protocol for debt claimers

[Never-In-Doubt]

so I have received one of these yesterday. I have been advised to ignore and await their next shot. Am I legally bound to complete this form and what will their next shot likely be if they continue to pursue the debt. Has anybody else any experience of receiving one of these and what action did you take?

Actually, I said it is up to you what you do - I have received one myself and ignored it because it did not comply with the new PAP's (https://www.justice.gov.uk/courts/pr...ebt-claims.pdf)

However, what each of you do is entirely up to yourself - we cannot advise what to do as it's up to you how you handle it. Plus don't forget I did reiterate that based on the balance owed in your case I would not let it get that far - it simply isn't worth it (IMO).

Remember they must do quite a lot in the new LBA:

A creditor will have to include with its letter before claim a template information sheet and a reply form in all cases. The letter before claim should contain:

• the amount of the debt
• whether interest or other charges are continuing
• where the debt arises from an oral agreement, who made the agreement, what was agreed (including, as far as possible, what words were used) and when and where it was agreed
• where the debt arises from a written agreement, the date of the agreement, the parties to it and the fact that a copy of the written agreement can be requested from the creditor
• where the debt has been assigned, the details of the original debt and creditor, when it was assigned and to whom
• if regular instalments are currently being offered by or on behalf of the debtor, or are being paid, an explanation of why the offer is not acceptable and why a court claim is still being considered
• details of how the debt can be paid (for example, the method of and address for payment) and details of how to proceed if the debtor wishes to discuss payment options and
• the address to which the completed reply form should be sent.

The creditor should also:

• enclose an up-to-date statement of account for the debt, which should include details of any interest and administrative or other charges added or
• enclose the most recent statement of account for the debt and state in the letter of claim the amount of interest incurred and any administrative or other charges imposed since that statement of account was issued, sufficient to bring it up to date or
• where no statements have been provided for the debt, state in the letter of claim the amount of interest incurred and any administrative or other charges imposed since the debt was incurred
• enclose a copy of the information sheet and the reply form in the form annexed to the protocol and
• enclose a financial statement form as annexed to the protocol

If the debtor does not reply to the letter before claim within 30 days, the creditor may commence court proceedings. The debtor should use the reply form for its response. The debtor should request copies of any documents it wishes to see and enclose copies of any documents it considers relevant, such as details of payments made but not taken into account in the creditor’s letter of claim.

If the debtor indicates that it is seeking debt advice, the creditor has to allow the debtor a reasonable period for the advice to be obtained and should not commence court proceedings less than 30 days from receipt of the completed reply form or 30 days from the creditor providing any documents requested by the debtor, whichever is the later.

The creditor should also allow reasonable extra time for the debtor to obtain that advice where it would be reasonable to do so in the circumstances.

If the debtor requires time to pay, the protocol requires the creditor and debtor to try and reach an agreement for the debt to be paid by instalments, based on the debtor’s income and expenditure. If the creditor does not agree to a proposal for repayment of the debt, it should say why in writing.

If the debtor fails to fully complete a reply form the onus is on the creditor to contact the debtor to discuss and obtain any further information needed to properly understand the debtor’s position.

If the debt is disputed the parties should exchange information and disclose documents sufficient to enable them to understand each other’s position and the creditor must provide any document or information requested or explain why the document or information is unavailable within 30 days of receipt of the request.

If settlement still cannot be reached the parties are obliged to take appropriate steps to resolve the dispute without commencing court proceedings and, in particular, should consider the use of alternative dispute resolution (ADR).

If an agreement still cannot be reached, the creditor should give the debtor a minimum of 14 days’ notice of its intention to commence court proceedings (unless, for example, the limitation period is about to expire).

And that is the new PAP's in a nutshell....

[Never-In-Doubt]

From a 'tactics' perspective, will the new PAP procedure replace CPR 31.14 requests? (Which, from what I've experienced, were largely ignored anyway in potential SCT claims.)

See post above ^^ The new process explains what they must do now, which includes explaining what the debt is, how it arose, statements, interest etc and lots of other relevant info so really there's no need for CPR 31.14 if they comply with the new PAPs - however most won't - I therefore suspect that when they ignore the new PAP and we argue they did it wrong and get it stayed, that CPR would kick in then?

Jo / Di will be best to answer that I reckon

[Joanna Connolly Solicitors]

From a 'tactics' perspective, will the new PAP procedure replace CPR 31.14 requests? (Which, from what I've experienced, were largely ignored anyway in potential SCT claims.)

Nope, because both exist for different reasons

CPR 31.14 Requests only apply to disclosure of documents specifically mentioned in the statement of case (i.e. the Claim Form). CPR 31.14 can be enforced in court as part of the proceedings and sanctions can apply if not complied with (unless order or claim struck out etc) unlike the Pre-Action Protocol procedure which can't be 'enforced' in court (i.e. you can't put the clock back).

The sanctions for not complying with the Letter Before Claim formality may be costs issues such as wasted costs in the Small Claims Court or a stay on the proceedings but it remains to be seen how/whether DJs react.

There are also some situations where it need not apply such as when a debt is on the brink of becoming Statute Barred then the creditor cannot be expected to lose their right to issue a claim before the limitation kicks in.

The difficultly is each person needs to decide whether they want to give the debt owner time to source and/or reconstitute documents (by asking for them at the Letter Before Claim stage) or wait until the claim is issued (which might well happen anyway) and then ask for them in a more formal way (CPR 31.14) which can lead to the claim being struck out if they're not produced by the deadline.

I expect the balance will be to ask for some but not all if you are a LIP.

Di