Advice on wording of a letter to a solicitor

[RealityHasALiberalBias]

Hoping for some advice on the wording of a letter.

We’re in a dispute over a fairly complicated situation with someone who did some work for us last year. We don’t really need legal advice on the situation, as we’re pretty clear on where we stand (seems solid, legally) having done extensive research ourselves and taken advantage of the free legal advice offered by my union.

I need to reply to the other person’s solicitor detailing our position on the matter, and had got advice from the union solicitor on what to put in the letter. At the end of the letter we have stated along the lines of “you have 30 days to respond before we take further action.”

My partner thinks there might be some legal thing that makes us liable for the other party’s legal costs if we give a deadline for reply like that. I have no idea and can’t find any clarification online. Does it sound okay to give a deadline for reply before we take further action (i.e. potentially go into legal proceedings), or does that trigger some magical legal clause that we’re stumbling into?

Sorry it’s all a bit vague - don’t want to go into details of the situation as it’s outing, so I suppose all I’m really asking is, is there anything we should avoid saying in a letter in response to the other party’s solicitor? The union solicitor said we should make our case as clearly as we can with supporting evidence and detail. I’ve used up the 30 free minutes now so can’t go back to them without incurring costs.

Does this make any sense?

[Collaborate]

You must follow the pre-action protocol. As you won't share what it's about, you'll have to research whether your kind of case has its own pre-action protocol, but if it doesn't you'll need to follow para 6 of the practice direction on this:

...the parties should exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind that compliance should be proportionate. The steps will usually include—
(a) the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated;
(b) the defendant responding within a reasonable time - 14 days in a straight forward case and no more than 3 months in a very complex one. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim; and
(c) the parties disclosing key documents relevant to the issues in dispute.

Para 3 says:

1. Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to—
   

(a) understand each other’s position;
(b) make decisions about how to proceed;
(c) try to settle the issues without proceedings;
(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
(e) support the efficient management of those proceedings; and
(f) reduce the costs of resolving the dispute.

[MyKingdomForBrie]

You’re fine to give a deadline. The costs issue comes into play if an offer is made and declined then the declining party doesn’t manage to get a better award in court than was offered before hand.

[RealityHasALiberalBias]

Thanks all, we are following the pre-action protocol. If he does proceed with action we have a strong case to counterclaim, but hopefully he will give up before it comes to that (since we’ll all end up back at square one, but out court costs).

[fascicle]

Not a lawyer, but...

Not entirely sure why you are pushing for a response deadline, after which you will take action, when you are the Defendant and it sounds like you will only take action (counterclaim), if the Claimant pursues their case.

That said, if you take, for example, the Pre-Action Protocol for Construction and Engineering Disputes, if the Defendant, in their response to a Letter of Claim outlines a counterclaim, the Protocol allows 21 days for the Claimant to respond to the Counterclaim.

But yes, follow the relevant Pre-Action Protocol and also look up the Practice Direction which Collaborate mentions (Practice Directions are useful for the interpretation of all Civil Procedure Rules or CPRs which provide the framework for civil litigation).

Hopefully you will have received some advice on the risks/benefits of possible litigation and will have an idea of the likely track to which this claim might be allocated. Usually, but not always, claims worth £10k or lower will be allocated to the small claims track, which is designed to allow people to represent themselves and where solicitors fees are not recoverable. A higher track - fast or multi - is a whole different ballgame with the potential for the losing party to cop for the other side's (sometimes exhorbitant) solicitors' fees.

[RealityHasALiberalBias]

Hi all, I have an update which I'm hoping someone can advise on.

We responded to the solicitor following the pre-action protocol (saying we would counter-claim) and heard nothing back until we received an email from the solicitor this morning.

This is almost two months since I sent our letter, so surely they are well outside the pre-action protocol deadlines? Their solicitor seems completely unprofessional (got our names wrong on their letter and all sorts of inaccuracies), but what do we do now? Ignore, as they're out of time, or respond and say they're out of time?

Hope this makes sense.

[RealityHasALiberalBias]

PS the email contained an attached scan of a letter that said they would proceed to take us to small claims if we do not settle within seven days.

[Teenytinyvoice]

I don’t think you can ignore just because they didn’t meet to deadline, but if you end up in court could have an implication for costs.

[Teenytinyvoice]

Ah, cross post re small claims- don’t think the rules are as strict for small claims court.
You probably need specific advice for your situation

[MummaGiles]

Not adhering to the pre action protocol deadlines does NOT preclude them from bringing a claim. The protocol contains guidelines and non-compliance can impact on costs recovery but as you’re talking small claims that is irrelevant anyway. You can’t just ignore it, unless you want to risk proceedings being issued against you.

[RealityHasALiberalBias]

Okay, so what are the implications of them not following the protocol? Will the judge look at them unfavorably? Their whole approach to this has been completely slapdash.

[Teenytinyvoice]

It won’t make any difference to the decision or the size of any award (ie damages). If it were a “full” court action it would have an impact on the costs that are awarded, but these are either none or extremely limited at the small claims court.
So practically speaking, it’s annoying but will have no real impact

[RealityHasALiberalBias]

Sigh, that is annoying. What's the point of it all if there are no consequences for a party not following it? We've been really diligent about it! Argh.

[Teenytinyvoice]

In other scenarios, handicapping your ability to claim costs is pretty serious as costs can often outweigh the settlement.

In your case, if they continue to be sloppy the judge will be less inclined to use discretion in their favour. Keep complying yourself so you have clean hands.

[RealityHasALiberalBias]

Okay that’s good to know, because if this does go to court it’ll come down to he-said-she-said, but he’s been so inconsistent and slapdash about everything, and seems to have found a solicitor with the same lack of attention to detail (putting it mildly).

Why can’t people just not be dicks??

[Teenytinyvoice]

Sadly the world is full of arseholes who would sell their granny’s.

[RealityHasALiberalBias]

I find it extraordinary that the solicitor has still got our names wrong, even though the first thing we pointed out in our letter to them was our actual names, and that they had been getting them wrong.

[Teenytinyvoice]

Well, being a solicitor doesn’t magically make you competent, maybe the letter is generated from a database and they haven’t updated it?

Like I said, try not to let it get to you, just keep clean hands yourself x

[RealityHasALiberalBias]

Thanks, this whole thing is massively stressful, and I thought it had gone away since it has been two months since we sent our very comprehensive "you have no case" letter. I've got so much bloody work on this week as well.

[Teenytinyvoice]

Best wishes for a good outcome

[MummaGiles]

Hopefully they issue against you in the wrong names too!

[Teenytinyvoice]

That occurred to me too!

[RealityHasALiberalBias]

What happens if they do?

They are referring to us as Mr & Mrs RealityHasALiberalBias, when in fact I am Ms RealityHasALiberalBias and he is Mr CompletelyDifferentNameAsIDidn'tTakeHisWhenWeWereMarried.

We've pointedly written out our real names in two letters direct to the builder, then explicitly noted to his solicitor in a third letter that the names were wrong.

[Teenytinyvoice]

I will defer that to a real solicitor... 😄
I suspect MrsBias is near enough to make the claim valid but it’s pure speculation. Clearly Mr Bias doesn’t exist so probably wouldn’t be a valid claim?