Direct Access Barrister

Disputes & Advocacy

The letter before action, explained

Before almost any civil claim in England and Wales, the court expects the parties to have exchanged letters, shared key documents and considered settling — the “pre-action” stage. The letter before action (or “letter of claim”) is the formal opening move. Done properly it resolves a large share of disputes without a claim ever being issued; done badly it costs money later. This note covers both directions: sending, and receiving. It is general information, not advice on your dispute.

The pre-action rules (the Practice Direction on Pre-Action Conduct, plus specific protocols for particular claim types) exist to make litigation the last resort. The court polices them with its costs powers: a party who issued proceedings without proper warning, refused to share documents, or ignored a sensible settlement proposal can be penalised in costs even if they win. So the pre-action stage is not a formality before the real fight — for most disputes it is the fight, and most end here.

• —The facts, concisely: what was agreed, what happened, what went wrong — dates, documents, figures.
• —The legal basis, briefly: breach of contract, debt, negligence — enough to show the claim is real, without an essay.
• —What you want: the sum (with interest set out), or the act required, and by when — a clear, dated deadline, usually 14 days for a straightforward debt and up to three months in complex protocol cases.
• —Key documents, enclosed or offered, and an invitation to propose ADR (mediation or similar).
• —What follows if the deadline passes: proceedings, with interest and costs claimed. Say it once, precisely, and mean it — a threat not carried through devalues every later letter.

A letter before action is not a court order and does not mean you will be sued — but it is the last cheap moment to influence what happens. The two classic mistakes are opposites: ignoring it (silence reads as no defence, invites the claim, and costs you on conduct later) and firing back in anger (an intemperate reply, written without checking the documents, that concedes facts and hardens positions). The right response, inside the deadline:

The pre-action stage is the natural moment for a “without prejudice save as to costs” offer — one the judge never sees until the case is decided, and then sees only when deciding who pays the costs. A well-pitched offer (including, once proceedings are contemplated, a formal Part 36 offer) puts the other side permanently at risk: beat your offer at trial and the consequences for them are severe. Knowing the number to put in that letter is precisely what a merits opinion is for — see our note Settlement & mediation, explained.

This note is general information about pre-action conduct in England and Wales and does not constitute advice on a particular dispute. Specific protocols apply to some claim types (debt claims against individuals, professional negligence, construction); check which governs yours.