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Letter before action

This content applies to England & Wales

Information on sending a letter before action to the other party before starting court action.

Before starting court action, where negotiations or alternative dispute resolution (see the section on Deciding whether to go to court) have failed or are not appropriate, the normal practice is to send a letter to the other party. This letter is known as a letter before action. It usually sets out the complaint or claim and makes it clear that court action will be started if no response is received within a specified time (usually seven or 14 days). It acts as a final warning to the other party that court proceedings will be started if the problem is not resolved within an appropriate time. If a client and her/his legal representative or adviser do not write a letter before action, this may affect the court's decision on who should pay the costs. If alternatives to court action have not been pursued, the court may conclude that court action was unnecessary and a waste of the court's and the opponent's time and resources.

If a response to the letter before action is received which offers terms of settlement, these should be fully discussed with the client and the possibilities of further negotiation explored before court proceedings are started. The client may prefer not to proceed to court if a reasonable settlement can be reached. The client should be advised that if s/he proceeds and the court orders a similar settlement to that available before the court case, then the court can award costs against them, unless doing so would be unjust.[1]

Pre-action protocols often require a letter of claim, which may also be a letter before action, but must also contain all of the information and enclose all of the documents required by the protocol.

[1] Civil Procedures Rules, rule 36.20.

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