Small claims without letter before action

Short answer: Yes, they can. There is no absolute legal bar on issuing a claim without first sending a letter before action. However, doing so carries real risks for the claimant, and it may work to your advantage if they have skipped that step.

Legal and procedural position:

The Pre-Action Conduct and Protocols Practice Direction, which forms part of the Civil Procedure Rules, expects parties to exchange sufficient information to understand each other's position before issuing proceedings. For most low-value disputes that would end up on the small claims track, there is no specific pre-action protocol, but the general practice direction still applies. It expects the claimant to write to the defendant setting out the details of the claim and giving a reasonable time to respond, typically 14 days for a straightforward matter.

That said, this is an expectation rather than a strict jurisdictional requirement. A court will not automatically strike out a claim simply because no letter before action was sent. The claim form, if properly completed and the court fee paid, will be issued regardless.

What happens in practice:

The court has discretion to take failure to comply with pre-action conduct into account. This could affect costs, even on the small claims track where costs are generally limited. The court can, for example, order a stay of proceedings to allow proper pre-action steps to be carried out. In some cases the court may make an adverse costs order against the claimant for unreasonable behaviour in jumping straight to proceedings.

What you can do:

1. If you receive a claim and no letter before action was ever sent, note that fact clearly.

2. When filing your defence or directions questionnaire, draw the court's attention to the claimant's failure to comply with pre-action conduct. You can request that the court stay the proceedings to allow proper pre-action engagement, or ask the court to take the failure into account when considering any costs.

3. Consider whether you want to engage with the substance of the claim anyway. Sometimes it is more practical to respond to the claim on its merits and simply note the procedural failing, rather than seeking a stay which only delays things.

4. If the claim is one you can settle or resolve, the absence of a letter before action does not prevent you from making a reasonable offer at any stage. Doing so can itself put you in a strong position on costs if the claimant refuses and then fails to beat your offer at trial.

Strategic point:

A claimant who skips the letter before action often looks unreasonable to a district judge. It suggests they were not genuinely interested in resolving the dispute without litigation. That impression can colour how the judge views the case more broadly, even if it does not lead to a formal sanction. So while it is annoying to be served with a claim out of the blue, the claimant's haste may actually weaken their position rather than yours.