Before you file: what pre-action correspondence is actually for

Where the rule comes from

The High Court of Lagos State (Civil Procedure) Rules 2019 require a claimant to file Pre-Action Protocol Form 01 with the originating process, together with the correspondence showing that settlement was attempted (Order 5). An action filed without them is a nullity. Under the court’s practice direction on the protocol, a party who unreasonably refuses to take part in settlement can also be ordered to pay costs.

Separately, some statutes require written notice before an agency or public corporation can be sued. Where such a requirement applies, the notice is a condition of the claim, not a courtesy, and a claim filed without it can fail on that ground alone.

What a good letter does

A letter that settles a claim is written to be assessed, not to intimidate. It does four things.

1. 01States the claim so it can be checked. The facts, the obligation breached, the sum claimed and how it is calculated, with the key documents enclosed. A recipient who can verify the claim quickly is more likely to pay it.
2. 02Sets a deadline and a next step. A reasonable period to respond, and what will follow if the deadline passes. Vague threats invite delay; a dated next step does not.
3. 03Puts a reasonable offer on record. Under Order 53 rule 2 of the Lagos rules, a party who rejects an offer of settlement made as part of the pre-action protocol, then wins at trial but is awarded no more than the offer, pays the other side’s costs from the date of the offer to judgment.
4. 04Builds the record the court will read. The protocol bundle is made of these letters, so each one should read well in front of a judge.

Every letter before action has two readers: the other side now, and the judge later.

When it does not work

Correspondence does not stop the limitation period. Time keeps running while the parties exchange letters, and some claims, such as certain claims against public officers, must be brought within three months. A claim can be lost while a reply is awaited.

Nor should a letter come first where there is a real risk that assets will be moved or evidence lost. Announcing the claim then does harm, and the protective application to court should come before the correspondence. Against a party that has already decided not to pay, a letter will not change the outcome; its value is the record and the costs position it creates.

Settlement discussions marked “without prejudice” are generally protected: under section 26 of the Evidence Act 2011, an admission made on the understanding that it will not be used in evidence is not relevant. The open letter of claim has no such protection, which is another reason to write it for the judge.

What a claimant can do

Before the first letter, check the limitation date and any statutory notice the other party is entitled to. Assemble the contract, invoices and correspondence, then calculate the claim to the naira.

Then send an open letter of claim with a dated deadline, and keep any offer in a separate letter marked without prejudice. File every exchange in date order as it happens, so the protocol bundle is ready if the claim proceeds.

At Firmpoint we advise, guide and act on behalf of clients at every step of a claim, from the letter before action to settlement or proceedings in court.

• In Lagos, pre-action correspondence is part of the claim: an action filed without Form 01 and the letters behind it is a nullity.
• Check the limitation date before the first letter; correspondence does not stop time running.
• Do not send a letter that gives a party notice to move assets; where that risk is real, seek protective relief first.