What is the pre-action® ADR® service?
pre-action® ADR® is a structured process that supports paper based and on-line interactive versions of documents, managed using the dedicated claimant website, including letter before action, letter of claim, offers, settlement proposals and response forms.
The pre-action stage is concluded usually within 14 days. Where there is no response from the defendant, to enable you to proceed immediately to Court, the service:
- sends your formal notice of intent, then
- completes your N1 money claim form, and
- supplies your "Joint Evidence Pack" (JEP®) for evidence of having offered / attempted alternative dispute resolution required for the completion of the Directions Questionnaire, and
- provides a third party statement of truth confirming you have used proportionate attempts to settle before proceeding to court, while
- demonstrating you (the claimant) have tried every other practical means of recovery, and answering "is the defendant worth pursuing?" before issuing proceedings
Where legal action is unavoidable it demonstrates best endeavours to the courts, reduces time to issue proceedings, reduces time pre-hearing with use of judgments by default and summary judgments, and increases judgments in favour of claimant due to improved pre-action preparation and enhanced information, including the "Joint Evidence Pack" JEP®.
Where the claim is defended your pre-action® ADR® forms your JEP® for the Court and should be sent with your N1 claim form and it is evidence of having offered / attempted Alternative Dispute Resolution when completing the Court's Directions Questionnaire.
As your claim progresses the service generates the appropriate court forms and accompanying letters, for example, to request claim discontinuance, judgment by default or summary judgment.
All monies recovered paid direct to you, no commission, no hidden fees.
The difference between claiming and winning - we are with you all the way.
A structured approach to money claims
pre-action® ADR® is a structured framework supporting off-line paper based and on-line interactive versions, managed using the dedicated claimant website, including letter before action, letter of claim, offers, settlement proposals and response forms, concluded usually within 14 days.
Letter of Claim with optional offer to settle and disclosure sent with Response© document and a choice of late payer questionnaires
defendants and their advisors directed to the dedicated defendant website for paperless communication
all defendant and advisor contact directed to you
scheduled follow-up letters
The service supports the delivery of the broader objectives of the pre-action reforms:
improving quality of the debt claim put in to the court
demonstrating you (the claimant) have tried every other practical means of recovery
answering "is the defendant worth pursuing?" before issuing proceedings
The copyright structured forms and documents are available on-line and are also sent in hard copy to the defendant.
Letter of claim© (including disclosure and discovery)
Offer to settle© form
Response© to letter of claim form
Statement of circumstance© form
Settlement proposal© form
Scheduled letters can be tailored to suit your requirements, please contact us to discuss your requirements further.
Active case management approach ensures:
clear signposting to free, independent, impartial advice services
parties to feel on an equal footing
parties to co-operate with each other
front-loading of case preparation prior to issuing proceedings
identification of the issues at an early stage
prompt decisions on which issues need full investigation
parties to use Alternative Dispute Resolution (ADR) procedures where appropriate
the possibility of settling cases without proceedings
the narrowing of issues to expedite any proceedings
promotes the concept of quick and economic justice
pre-action® ADR® is the most effective tool available to the small claimant today.
Submit your pre-action instruction for immediate action.
All monies recovered paid direct to you, no commission, no hidden fees.
What is so unique about the pre-action® ADR® service?
The services foundations are the Civil Procedure Rules (CPR) and the Pre-Action Protocol (PAP), together these set the standards and timetables for the conduct of all cases before proceedings are started.
It pro-actively directs defendants to co-operate in reaching settlement.
The service is designed to achieve an agreed settlement with the defendant while on the occasions where agreement is not reached it can clarify:
- the defendant has a legally valid defence, or
- there is a genuine dispute to all or part of the debt
- the defendant’s statement that they can’t pay is supported by facts or
- the defendant can but won’t pay
Where there is no response from the defendant, to enable you to proceed immediately to Court the service:
- sends your formal letter before action, then
- completes your N1 money claim form, and
- supplies your "Joint Evidence Pack" (JEP®) for evidence of having offered/attempted alternative dispute resolution required for the completion of the Directions Questionnaire, and
- provides a third party Statement of Truth confirming you have used propotionate attempts to settle before proceeding to court.
Where the claim is defended your pre-action® ADR® forms your "Joint Evidence Pack" (JEP®) for the Court and should be sent with your N1 claim form and it is evidence of having offered/attempted alternative dispute resolution when completing the Court's Directions Questionnaire.
Updating your terms and conditions
Updating your terms and conditions will give you further credit for offering ADR® for money claims and disputes:-
"We are committed to using a proportionate alternative dispute resolution approach wherever possible in order to resolve non-payment and disputes as efficiently as practicable. In most cases, this will involve attempting settlement through online bilateral discussion/ agreement between the parties using the pre-action® ADR® service with the intention of avoiding court proceedings unless there is no alternative".
You might also want to add this link to your site http://www.moneyclaimsuk.co.uk/pre-action-adr.aspx.
Download pre-action® ADR® logo
Managing several claims or higher volumes
For regular users the scheduled letters can be tailored to suit your requirements, please contact us to discuss your requirements further.
Data management tools enable you to improve:
day to day management of volume claim loads
management analysis of claims
archiving and storage of volume claims
What are the non-payer's / debtor's / defendant's obligations?
The defendant, like you (the claimant) is obliged under Civil Procedure Pre-action Protocol to co-operate in the sharing of the information being sought and to identify any issues they may have and any facts on which they intend to rely.
They are obliged under The Civil Procedure Rules and Pre-Action Protocol to:
- co-operate in the sharing of the information being sought, including providing copies of all documents you are asking for
- identify any issues they may have, and
- identify all the facts on which they intend to rely
They are required to disclose:
- the documents on which they intend to rely
- the documents that: adversely affect their own case, adversely affect another party's case, support another party's case
- the documents which they are required to disclose by a relevant practice direction
These documents include documents that are now or have been in their physical possession or control with someone acting on their behalf eg advisor or solicitor.
If a potential defendant has not replied to a letter before claim by the deadline given or 14 days after posting then the claimant should view this as the potential defendant having failed to comply with pre-action protocol and the civil procedure rules.
As the Claimant you should proceed to issue your claim. The pre-action® ADR® documentation should be included in the "particulars of the claims" and the lack of response should be drawn to the Court's attention.
Making offers, offer tactics
Where the possible range of outcomes is relatively unclear, then it may make little difference who goes first. All claimants (you) should consider making a formal Part 36 offer 21 days before issuing a claim. Part 36 offers and payments under Civil Procedure Rules Part 36 describes the rules which apply if a party wishes to make a formal offer to settle including the costs consequences. A Part 36 Offer will be treated as 'without prejudice save as to costs'; therefore the trial judge will be aware an offer to settle was made but will not be told about the details until all questions of liability and quantum have been decided.
Where neither case can make an accurate judgment as to the strength of the other side's case, offers a likely to pitched very high by the claimant (you) and vary low by the potential defendant. In this situation, it may be better to wait for a more realistic assessment to be made once further evidence and documents have been exchanged.
The service manages the flow of the case information from the letter of claim to conclusion. It is especially helpful when managing the process of offers.
Pre-action offers are a great tactical weapon, especially for claimants (you). A potential claimant should consider making a pre-action offer in almost every case before commencing proceedings to put pressure on the potential defendant to resolve the dispute.
The introduction of formal Part 36 offers has shifted the balance of power in favour of the claimant (you) offering claimants a powerful tactical advantage. Previously faced by a potential defendant who was determined to delay there was little that could be done, now the claimant can put the defendant on risk as to costs and force the defendant to consider carefully from the outset whether their defence is sufficiently strong to continue.
If the defendant does not settle and subsequently fails to beat the claimant's pre-action offer at trial they risk potentially at least incurring interest and cost penalties.
However, the defendant is most likely to escape this if he can show that the claimant failed to supply them with the necessary information to properly evaluate the pre-action offer. The claimant needs to ensure that sufficient information is provided with the pre-action offer and to respond promptly to any additional requests for information from the potential defendant relating the pre-action offer.
A potential defendant should follow-up a claimant's pre-action offer with a prompt request for any information that is necessary for him to evaluate the pre-action offer together with a request for a details analysis as to how the offer has been calculated.
Potential defendants should also consider making a counter offer to settle as soon as they are in a position to properly evaluate the potential claim. If the offer to settle is formally made under CPR Part 36 the threat of the claimant potentially being liable for the defendant's costs from the latest date that the pre-action offer could have been accepted if the claimant subsequently fails to beat the defendant's pre-action offer at trial should concentrate the potential claimant's mind on resolving the dispute sooner rather than later.
However, under CPR Part 36 the potential defendant will need to balance this against the fact that once proceedings have commenced, his pre-action offer will have to be backed up with a payment into court within 14 days if it relates to a money claim and he may be deprived of funds for a long period.
Pre-action versus formal Part 36 offers
A Part 36 Offer will be treated as "without prejudice save as to costs"; therefore the trial judge must not be told about it until all questions of liability and quantum have been decided.whether or not it is expressly marked as such. However, there is no such presumption in relation to a pre-action offer, which can be made on an open basis if the offeror so chooses.
In relation to a pre-action offer, the court will take the offer into account when making any order as to costs. There is no provision for dealing with interest, in contrast to a formal Part 36 offer.
Under a pre-action offer, the court has a wide-ranging discretion as to how it takes costs into account. For a formal Part 36 offer, the Part 36 cost consequences must apply "unless it is unjust to do so".
A pre-action offer can be taken into account at any costs hearing (including interlocutory hearings).
A formal Part 36 offer provides for a formal clarification process of the terms of a Part 36 offer or payment to a tight timetable. This is not available for a pre-action offer, although it is of course open to the offeree to seek clarification through communication.
What is the Statement of Circumstance (SoC)?
The Statement of Circumstance (SoC) captures the financial situation of a consumer defendant for you.
The Letter of Claim requires a written response before the claim deadline. Where the defendant responds within the deadline but can't pay but is willing to reach agreement then the Statement of Circumstance (SoC) can enable you as the claimant to make a more informed decision regarding issuing proceedings.
The Statement of Circumstance can help you answer the question "is the defendant worth taking to court?"
It can also help you post judgment to identify the best route of enforcement.
Meeting the courts and judges expectations
Using our pre-action® ADR® service helps you to demonstrate your compliance and best endeavours to the courts:
Since April 1st 2013 the issue of proportionality is now on the same footing as dealing with cases justly. Your claim must be dealt with justly and at proportionate cost.
- the case is being dealt with in way that is proportionate
- to the money involved
- to the importance of the case to each party
- to the complexity of the issues
- to the financial position of each party
- co-operate with other partie(s)
- identify all issues at the earliest stage
- decide promptly which issues need full investigation
- consider using an alternative dispute resolution procedure that is proportionate to the case
- prior to issuing proceedings parties in a dispute are expected to demonstrate:
- parties are on a an equal footing
- there has been a full exchange of information
- there has been front-loading of case preparation prior to issuing proceedings
- an appropriate attempt has been made to settle the case without proceedings at all
- there has been a narrowing the issues to expedite the proceedings themselves, if no alternative to court
Situations that benefit from the pre-action® ADR® service
Before considering court you are required to follow the approved protocol.
Where communication is not forthcoming from the potential defendant.
Issue the Letter of Claim together with your (the claimant) disclosure, discovery questions and a formal Part 36.5 offer. Use the service immediately after issuing proceedings with intention of avoiding court and its associated inconvenience and costs.
Where the defendant is disputing your claim with no legally valid defence.
Following receipt of the defendant's Response to the Letter of Claim issue proceedings seeking summary judgment with the intention of enforcing through an Attachment to Earnings or a Charging Order on property.
Where you (the claimant) do not want to affect the defendant's credit rating or issue court proceedings.
Issue the Letter of Claim together with your disclosure, discovery questions and with the recommendation of including a formal Part 36.10 offer to settle. Service is intended to reach settlement and avoid issuing proceedings. The free, independent, impartial debt advice services may be appropriate for the defendant at this point or other mediation/advice services.
Where maintaining your customer relationship is the main collection driver.
Issue the Letter of Claim together with your disclosure, seeking the completion of the Response document, with the intention of information gathering. An open pre-action offer or a formal Part 36.10 offer may then be made after the defendant's situation is clearly understood.
Where the defendant has stated in their financial statement monies are owed to them by a third party.
Following receipt of the defendant's Response to the Letter of Claim and financial statement issue proceedings seeking summary judgment with the intention of enforcing through a Third Party Debt Order securing monies owed to the defendant.