14 Mar So you’ve received a pre-action protocol letter: How to manage the litigation process
When a dispute arises between parties, nothing signals the breakdown of the relationship more than the threat of litigation (except perhaps litigation itself). The litigation process is no doubt daunting and is often times an uphill battle. It is time consuming, costly and can sever longstanding relationships. Despite the inherent challenges that come with the territory, there are a number of steps which you can take to ease the burdens posed by litigation or the threat thereof.
This article explores the initial stages of the litigation process, what to expect and some steps you may consider to manage the process.
The Threat of Litigation
If you are threatened with litigation, more often than not, you would first be served with a ‘Pre-Action Protocol Letter’ from the party intending to bring a claim (or from that party’s attorney). A Pre-Action Protocol Letter is a letter made pursuant to the Pre-Action Protocols of Trinidad and Tobago’s Civil Proceedings Rules. Simply put, it is a letter which sets out:
- A party’s claims against you;
- The remedies which that party seeks;
- An express demand for the remedies claimed;
- A timeline by which a response is expected or by which the remedies should be provided; and
- A threat that if the remedies are not provided, litigation proceedings will be commenced against you.
Apart from a Pre-Action Protocol Letter, litigation can be threatened in the form of a ‘Demand Letter’. This differs from a Pre-Action Protocol Letter in that it is not made pursuant to the Pre-Action Protocols. On the flip side, it is similar to a Pre-Action Protocol Letter as it demands some form of remedy and it usually indicates the date by which that remedy should be provided (or a response expected).
While the temptation may be to ignore the Pre-Action Protocol Letter or Demand Letter, there are important practical and strategic reasons why you should not.
As such, when served with a Pre-Action Protocol Letter or a Demand Letter, you should take the following steps:
- Note the date it is received and the actual date of the letter. This will be important in determining the timeframe for your response.
- Read the letter carefully to ascertain the nature of the claim being asserted, the remedies being sought and the basis upon which these remedies are claimed.
- Highlight and note the prescribed deadline for issuing a formal response or for providing the remedies sought.
- In most cases, if you decide to retain the assistance of an attorney, you should send the letter for the attorney’s review and highlight the date of the letter, the date you received it and the deadline for responding. In most cases, it would be best to seek the advice of an attorney.
- Consider whether you need more time to respond. Generally, the timeline for responding is not set in stone as parties tend to be flexible and will usually allow a reasonable amount of time to respond. As such, if you are unable to respond within the deadline stipulated, your attorney may recommend issuing a ‘Holding Letter’. This is a simple letter which indicates to the other party that you are still reviewing the allegations made against you and will require more time to respond. You can either specify a date by which you will respond or state that you will do so within a reasonable period and in any event, as soon as you are in a position to do so.
- Compile as much evidence or documentation as possible in order to shed light on the allegations made and defend your position. For instance, if a claim is made against you for unpaid rent, you should retrieve and secure any evidence relating to the term of your agreement (such as the tenancy agreement and all documentation relating to your payment obligations as this will assist in determining if there is any applicable evidence that payment has been made). You should also recover the agreement between you and the other party which stipulates the terms under which rent should be paid and any subsequent written amendments to that agreement (whether in the form of a letter, email or otherwise).
In the event that the claims made in the Pre-Action Protocol Letter are not resolved or if you fail to respond to same, the party making those claims may commence litigation proceedings against you.
In civil proceedings, litigation is commenced when a Claim Form and Statement of Case are filed in court. These are documents which highlight a party’s claims against you and the basis upon which those claims are made (along with any relevant supporting documentation). When the Claim Form and Statement of Case are filed in court, it must be served on the named Defendant(s). The service of the Claim Form and Statement of Case should be accompanied by additional documents which explain what steps you are required to take in order to respond to the allegations raised against you. You should read through these documents carefully.
Generally, when a Claim Form and Statement of Case are served on you, you are required to take the following steps:
- File an ‘Appearance’ in court. This is a simple form in which you will indicate whether you intend to defend the claim or if you admit the whole or part of it. It must be filed within eight (8) days of the service of the Claim Form on you.
- File and serve a ‘Defence’ if you intend to defend the claim. Generally, the Defence must be filed within twenty-eight (28) days after the service of the Claim Form and Statement of Case. The parties can however agree to extend the period for filing the Defence up to a maximum of three (3) months after the date of service of the Claim Form (or the Statement of Case if it is served after the Claim Form). As such, if upon review of the Defence, you determine that you will be unable to respond within the initial twenty-eight (28) days period, you should reach out to the other party and request an extension of time.
Providing an agreement is reached, you will need to file a ‘Notice: Extension of Time for Filing Defence’ which informs the Court that the deadline for filing the Defence has been extended by agreement of the parties. It is also recommended that you exhibit evidence of the agreement with the other party for the Court’s review.
Notably, it is possible for a Defendant to apply to the Court for a further extension (beyond the period agreed by the parties). This would be done by filing a ‘Notice of Application for Extension of Time For Filing Defence’ which should be supported by an Affidavit setting out the reasons why a further extension is needed. For instance, if you are still reviewing documents in order to respond to the allegations in the Claim Form and Statement of Case, this may be grounds for a further extension.
It is important to note that if you do not defend the claim, the Claimant can apply to have default judgment entered against you. This means that the Claimant could be awarded judgment in its favour without having to go to trial and without the Court having heard any evidence from you. It is therefore crucial that you file the Defence by the deadline in order to avoid a judgment being made against you.
Note that if you retain an attorney, he/she would usually assist in preparing and filing the above documents and will communicate with the other party on your behalf.
One important issue which is often overlooked, is whether the matter can be settled without the need for litigation (for instance through negotiation or other forms of alternative dispute resolutions). There is real value in achieving a settlement. For instance, it preserves the relationship between parties (especially where there is a longstanding relationship) and it saves time, legal costs and attorneys’ fees.
In determining whether to settle, careful consideration should be given to the following points:
- A cost-benefit analysis should be done and/or requested from your attorney. This should include an examination of the potential risks of going to trial, the likelihood of success and an estimate of legal costs and attorney fees. This would be useful in determining whether the costs of defending the claim outweigh the sums being claimed which could influence whether you opt to settle.
- Even if you are successful at trial, you may not recover all of the costs expended in defending the claim.
- Court documents are generally public documents. As such, there could be reputational risks for the parties involved depending on the nature of the claim. In such circumstances, parties may be more inclined to settle the matter so as to avoid potential negative publicity.
While there is no set formula on defending claims, the above can help you cope with the initial stages of litigation or the threat thereof.
Disclaimer: This Document Provides General Guidance Only And Nothing In This Document Constitutes Legal Advice. Should You Require Specific Assistance, Please Contact Your Attorney-At-Law.
This Article was authored by Jeanelle Pran, Associate at M. Hamel-Smith & Co. She can be reached at firstname.lastname@example.org.