Pre action protocol

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    Pre action protocol

    Hi - my tenant has moved out and has caused extensive water damage due to not reporting a leak and just leaving it to cause damage. We have tried to claim damages but he does not want to sort this amicably- does anyone have a template pre action protocol letter to start the court process? Any advice greatly received. Thank you

    #2
    Have you photographed the damage and can you compare with the state of the property on move in date ie with an inventory?
    How have you tried to claim damages?



    Freedom at the point of zero............

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      #3
      Hi yes we have check in and
      check out reports done by an independent company and lots of photos of proof - we have sent him all the evidence and quotes to fix and he has engaged a solicitor so we now need to do the pre action letter but I just need a template letter as all the ones online are for different issues

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        #4
        Originally posted by flat27 View Post
        Hi yes we have check in and
        check out reports done by an independent company and lots of photos of proof - we have sent him all the evidence and quotes to fix and he has engaged a solicitor so we now need to do the pre action letter but I just need a template letter as all the ones online are for different issues
        Do you know why the ex-tenant has retained a solicitor, it's going to cost them a lot of money and there's not that much benefit, unless the potential claim is for many thousands of pounds.

        When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
        Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

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          #5
          http://www.justice.gov.uk/courts/pro...s/debt-pap.pdf

          See the Annex, I can't see why that would be inappropriate

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            #6
            Yes if you follow the requirements in s3 that will cover pretty much all of it.

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              #7
              Thank you I will go through the link.
              The damages amount to £7k and he has used a solicitor to write to us to say we have no basis for claim and that he wasn’t aware of the leak (which he was and admitted to us and even tried to repair). They have offered £2k settlement and given us a week to accept the offer and have said that if we don’t then they intend to claim all their costs (I assume legal) from that day until the issue is resolved if the court don’t award anymore than that sum - surely there is no legal basis for this??

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                #8
                That's a standard response, the point being that they have made a without prejudice offer (which the judge won't be aware of), and if there is a court case and it arrives at the same outcome as their offer, the judge would then be made aware of the offer and would conclude that the legal case was a waste of everyone's time because you should have accepted their offer in the first place.

                Unless the letter gives you the basis of their offer of £2k, you should probably respond:
                That you don't understand the basis of their offer, as your mitigated losses were £7k (or whatever they were).
                That the tenant was aware of the leak, admitted as much and had tried to repair it.

                If the solicitor is responding to a claim you have made, I am not sure why you need the pre=action protocol - the tenant is already receiving legal advice on the matter.
                When I post, I am expressing an opinion - feel free to disagree, I have been wrong before.
                Please don't act on my suggestions without checking with a grown-up (ideally some kind of expert).

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                  #9
                  I put all the info into a letter which the tenant passed to his solicitor instead of replying to. The solicit says I need to do a proper letter and follow the pre action protocol - I refused at first as I was trying to sort it amicably with the tenant but now that’s clear that won’t happen I’ll need to follow it I guess?

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                    #10
                    You need to follow the pre action protocol, failing to can have negative implications. Did the solicitor say the offer was made under Part 36 and was it in writing?

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                      #11
                      It’s in writing (an emailed letter) but no reference to part 36 - I’m not sure what that is! I’m literally a default landlord from having a property when I got married and my husband had one too! I have no clue about all this and really appreciate all your help

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                        #12
                        Small claims don't normally have legal costs awarded, I think that the solicitor is trying to scare you off (if it is actually a solicitor).

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                          #13
                          Thank you for all your knowledge!! I’ve been reading about part 36 - they haven’t said it’s part 36 and they haven’t explained the basis of their figure. Also they have only given 7 days not 21.
                          I assume therefore it cannot be taken as part 36?
                          I’ve read that part 36 cannot be used in the small claims track but the issue gets complicated if the offer is made before track allocation - which it has - then it can be?!
                          I plan to reject the offer and follow the direct protocol to start court proceedings - should I be stating anything about part 36 or should I be silent on any of the points they haven’t talked about so that they can’t bring it up after judgement?? ie not valid as not done properly??
                          I just want to make sure there is no way they can go after me on their costs!! I’m surprised he has even got a solicitor for a £7k claim!

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