Pre-action protocols: choosing the relevant guidance

Selecting a pre-action protocol depends on the type of dispute and the parties. The Debt Claims Protocol covers a business claiming a debt from an individual, including a sole trader; it is not the general protocol for every company-to-company invoice. ^[1]

Classify the claim before using a template

Identify the debtor's legal status and the underlying obligation. Construction, professional negligence and terminal commercial dilapidations may engage different protocols. The official protocol list helps locate the relevant framework. ^[2]

Where a specialist protocol applies, read its requirements for the letter, documents, forms and response stages. A document headed 'letter before action' does not demonstrate compliance by its title alone.

Record the required sequence

Create a timetable from the applicable provisions, allowing for information requests, debt advice or settlement steps where required. Explain any urgency to the adviser, especially an approaching limitation deadline. Do not silently omit a required stage because a standard demand letter has already been sent.

Letter drafting should follow this selection. Dilapidations preparation illustrates a different subject-specific process. Keep a record of what was sent and when, so any later court explanation reflects the actual pre-action conduct.

Start with a classification note Write down the claimant's status, the proposed defendant's status and the obligation said to have been broken. Describe the activity underlying the demand rather than relying on the invoice heading. An unpaid professional bill, a complaint about negligent advice and a building contract dispute can involve overlapping documents while raising different procedural questions. Identify any counterclaim already suggested. The official list provides access to subject-specific protocols, but selecting an entry requires reading its scope and checking how it applies to the proposed case. [2]

For an individual running a business, distinguish their trading description from incorporation as a limited company. A sole trader does not become a company merely by using a business name. Conversely, the presence of a director's name in correspondence does not turn a company's debt into that individual's debt. Where several people or entities may be involved, show the potential claims separately. This avoids choosing a procedure on the assumption that every person in the correspondence has the same legal relationship to the creditor.

Build the file around the relevant requirements Once the route is identified, make a working checklist of required information, enclosures and response stages. Assign each item a document location or a person responsible for obtaining it. If a debt has been transferred, the file should explain the history rather than begin abruptly with the current collector's demand. If the agreement was oral, record the available account of how it arose. A standard letter is useful only after its contents have been checked against the actual claim and relevant framework.

For a claim within the Debt Claims Protocol, the letter package includes specified explanatory and reply material, together with financial statement information. Its initial response period is 30 days from the letter's date, subject to the protocol's further provisions. Do not substitute a shorter generic business demand. Store the final package as a single dispatch record, including the date and method used. That record should show what was sent, rather than merely confirming that someone selected a template in an accounts system. ^[1]

Treat the response as a new procedural event An incoming reply can change what needs to happen before proceedings are considered. Record whether the debtor disputes liability, requests documents, seeks debt advice or proposes instalments. Where the Debt Claims Protocol applies, its provisions require attention to advice and document requests; a partially completed reply is an attempt to engage. Avoid treating every response as a payment refusal. Give the person managing the file enough authority to obtain missing records and refer a substantive issue for assessment. [1]

Use an event log rather than one date labelled issue claim. Each entry should identify the incoming communication, its effect on the next task and the person checking the revised timetable. For example, a document request should trigger a search and a reasoned response, not simply a reminder of the original deadline. Distinguish documents supplied from documents reported unavailable. Preserve the explanation for any missing record. This allows an adviser to assess the position from events that occurred, instead of relying on an incomplete calendar alert.

Review compliance before moving to court Before escalation, compare the completed file with the selected protocol again. Has a newly clarified fact changed the proposed claim or exposed another applicable process? Were necessary attachments omitted from the initial letter? Has the recipient supplied evidence that reduces the amount claimed? Correcting a substantive omission may require further correspondence or time. A review should explain what remains contested and why proceedings are now being considered, including whether a proportionate discussion or another resolution process could address that remaining issue.

Do not try to solve an approaching limitation problem by silently compressing the pre-action timetable. Put the relevant dates and outstanding procedural steps before an adviser promptly so the options can be assessed together. Equally, avoid assuming that a minor administrative imperfection automatically defeats an otherwise valid claim. The record should enable a practical explanation of the steps taken and any justified urgency. Good protocol management means making informed decisions as the case develops, rather than treating a completed checklist as a substitute for judgement.