Applications for pre-action disclosure can be common in personal injury claims where a party (most often the Claimant) seeks specific information from the opposing party (the Defendant).

If you have received a pre-action disclosure application ('PAD') in relation to a personal injury that has been alleged against you or your business, usually your insurer will be dealing with the claim and so will have appointed legal representation. Your solicitors should therefore respond on your behalf to comply with the process.

However, if you do not have insurance to cover the claim or solicitors acting for you, it is important to understand the basis for the application and respond as soon as possible.​

PAD's are usually issued by a Claimant's solicitor when the Defendant has been unresponsive or has refused to provide information that has been requested.

A solicitor acting for a Claimant can request copies of all relevant information relating to the alleged incident that led to the injury that the Defendant possesses or that is in their control. This information is then used to assist them in evaluating the prospects and liability of any claim.

The legal basis and procedure for the disclosure of documents is detailed in section 7 of the Pre-Action Protocol for Personal Injury Claims and section 31.16 of the Civil Procedure Rules.

Depending on the type of claim (accident at work, dog bite etc.) the evidence that can reasonably requested may include:

• CCTV
• Accident book entries or accident reports
• Risk assessments
• Equipment maintenance logs
• Inspection or cleaning records
• Vet records
• Insurance details
• History of similar accidents or incidents

A PAD should not be the first correspondence you will receive regarding a claim, as a Letter of Claim or Claim Notification Form is usually sent beforehand. This will have detailed the specific allegations of the claim and often requests that the additional information is provided or at least preserved (i.e., CCTV footage not be deleted).

If this information isn’t forthcoming, then the Claimant's solicitor may write again threatening an application for pre-action disclosure and putting you on notice that you will be liable for the costs incurred if an application must be made to the Court.

​You should seek legal advice as soon as possible to comply with the request and to avoid having to pay these additional costs.

When a PAD is made, the documentation you receive can consist of the Application Notice, a Witness Statement, Order/Draft Order, copies of previous disclosure requests, and sometimes a notification to attend a hearing.

The Witness Statement will detail the attempts the Claimant's legal representatives have made to obtain the documents, the exact documents that are being requested and why these should be disclosed.

The Order (or Draft Order) will state what timeframe the documents should be provided in and the costs the Claimant is now entitled to receive from you as a result of having to make the application.
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It is advisable to obtain legal advice to deal with the threat of a PAD or the application itself. It is a formal legal document that has been made to the Court and should be treated seriously.

A Defendant personal injury solicitor will then be able to advise on the validity of the application, assist in complying with the Order and arrange representation at any application hearing (should one be required).

Failure to fully comply or respond to the application and subsequent Order can result in the Claimant's solicitor seeking a Penal Notice, which warns a Defendant that they may face further sanctions which could be as serious as imprisonment or other punishment that is permitted under the law.
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If you purchase a second-hand item from a business, trader or charity shop, the consumer rights that you are entitled to are extremely similar to those you have when buying an item that's brand new. Namely the goods should be:
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• Fit for the purpose the item was sold for
• Be of satisfactory quality
• Be as described in any advert, marketing materials or salesperson explanation

These rights in the UK are defined in the Consumer Rights Act and cover any purchase from a trader made since October 2015.

If you discover a fault with an item, this act gives you the right to return it for a full refund within the first 30 day of purchase. After the first 30 days (but within the first six months) you can still return the item, but you must give the retailer the opportunity to replace or repair the fault.

After six months, to return the item you must prove that the fault was present when it was first purchased, which can be more difficult if a product was second hand or pre-owned from the outset.

Second hand products may have imperfections and faults that are attributed to normal wear and tear. In some cases, there may be quality issues with a product due to its age and how it has been previously used.

When considering the laws on buying second hand goods and your consumer rights, it's important to remember that second hand products or refurbished goods do not have to be of the same quality as new items. Therefore, you cannot simply reject an item because it is not of the same standard as you would expect if it was brand new.

Fit for purpose means that the item must function correctly and last for a period of time that is 'reasonable'. In relation to used goods the item should function fully for the purpose it was designed and sold for. However, being a used item, it may show signs of being pre-owned and not last as long as you would expect a brand-new item to last.
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For example:

• When buying a used vehicle from a car dealership, it should be roadworthy and safe to drive at the point of sale. However depending on its age and history at the time of purchase, maintenance and servicing may be required much sooner than the equivalent brand-new vehicle.
• If purchasing an ex-display or refurbished laptop from a computer store, you should expect that all components are fully working. However, if it's being sold as ex-display it’s battery life may be less pristine than an unused laptop.

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Satisfactory quality is basically a standard that a reasonable person would consider as being acceptable taking into consideration the item's description, price and circumstances of the purchase. It is most often relating to a product's appearance, freedom from defect, durability and safety. Obviously, the quality of an item can be subjective, but your expectations should generally be lower if you are purchasing an item that has been previously used.

For example:

• A pre-owned vehicle is unlikely to have pristine paintwork and interior, so it may not be considered reasonable to reject a used vehicle on this basis.
• If you purchase a used four-year-old washing machine from a discount appliance retailer that failed after nine months. The reasonableness of it being of an 'unsatisfactory quality' may be difficult to prove if you only paid £10 for it.

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As described means that an item must be accurately advertised and described by the trader. If you asked questions about the product in store prior to purchasing, such as its warranty status, service history or how it currently operates, the information given should all be correct. Likewise, if the salesperson advises you of a fault with an item, then it is 'as described' and you can't reject it due to it having the fault.

For example: 

• If you purchase a car that is advertised as being a repaired 'category S write off', the car should be roadworthy however you cannot return it only because of past structural damage or its involvement in an accident.
• If a shop assistant offers to sell you a discounted furniture set that is water damaged, you cannot later reject the items due to stains or damage that the water has caused.

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Warranties or guarantees are an optional addition to your legal (statutory) rights as a consumer.

Warranty can be provided by the manufacturer as part of the product or able to be purchased separately and ran by a third party (e.g. used-car warranty, extended appliance guarantee etc.)

Your eligibility to claim under the warranty will depend on the warranty policy's terms and conditions, however it is not uncommon for there to be numerous exclusions. These can range from the age of the item (12 months from original purchase), where it was purchased from (an authorised retailer or dealership), being conditional on regular maintenance (serviced every year) or limited to certain faults (excludes wear and tear).

Another common exclusion is that you must be the original purchaser or at least have proof of the original purchase, such as a receipt.

The specific warranty policy needs to be checked to confirm if an item is eligible for a repair or return. But it is always worth checking especially on recently manufactured products.

Depending on how you paid the retailer for your purchase, and if no warranty is available, there may also be some additional protections available known as Section 75. This section of the Consumer Credit Act basically means that any credit provider involved in the purchase shares responsibility if things go wrong.

Therefore if you made the purchase with a credit card, store card or car finance agreement, you should contact your card issuer or finance provider to see if there is any action they can take.

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When buying second hand goods online, over the telephone, at home, or through mail order from a retailer you will also benefit from additional protections. Namely the Consumer Contract Regulations, or to give it its full name The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

These regulations cover what was previously known as 'Distance Selling' and provides some extra rights, even when purchasing a used product. These rights include:

• a right to clear information on how the goods can be paid for, the delivery charges and who pays for returns
• a 14 day right to cancel or change your mind on the purchase for any reason
• a right to a refund within 14 days of returning an item

The retailer is entitled to expect that anything sent back is returned in the exact condition as it was received. This can sometimes be a point of dispute when returning second hand goods as they are likely to have not been in original packaging etc. in the first instance.

An important point to remember when buying second hand products online is that not every website purchase is classed as buying from a business. When you buy from sites such as eBay, Facebook Marketplace, Gumtree, Shpock, Vinted or Amazon Marketplace you will need to check if the actual seller is a business or trader. As if they are a private individual, then consumer rights and contract protections will not apply to your purchase.

However many online trading sites do have their own buyer protection policies and dispute resolution processes which may be able to be used.
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If you purchase items from a private seller via a web advertisement, local newspaper ad or car boot sale it is important to be aware that you don't have any consumer rights. For the Consumer Rights Act to apply you need to be an individual making a purchase from a business.

If you do buy a second-hand item from a private individual it only has to match any advertised description. This limited protection falls under The Misrepresentation Act for when an untrue fact or statement is made by the seller to convince a buyer to make a purchase.

A private seller isn't under any obligation to tell you about any faults or defects, and there's no requirement for the item to be of satisfactory quality or suitable for any specific purpose.

So, as you may have heard, purchasing from a private seller is a matter of 'buyer beware'. You should check the product thoroughly to ensure you are 100% happy before buying it.

For example:

• Should you consider buying a used car privately, you ideally should have your own mechanic examine it and undertake checks on its history (HPI etc.) before purchasing, as you can't return it if faults are found at a later date.
• If you privately purchase a caravan that turns out to have faults with it's electrics, cooker and shower. It will not have been misrepresented to you unless the seller specifically said all these components were in full working order.

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In the majority of cases once you make the retailer aware of the fault, they should deal with your concerns inline with your consumer rights. If they refuse, the next step is escalating the matter as a complaint and then involving any associated ombudsman which should be detailed in the retailer's terms and conditions.

If all these steps fail, your only available method of resolution may be to start court proceedings. If the value of your claim is less than £10,000, it will be treated as a 'small claim' which means there are set fees to issue the claim and only limited legal expenses are able to be added (see our guide on how much does it cost to take someone to court).

Therefore if the value of your consumer claim is significant, it will be worthwhile seeking legal advice on your dispute before beginning court action to ensure the consumer laws are on your side.

In October 2017 the debt recovery process for businesses owed money by individuals changed significantly.

Previously there was no specific pre court action process for recovering debts, but on 1 October 2017 the Pre-action Protocol for Debt Claims came into force.

A Pre-action Protocol sets out the various steps that the court expects both sides to take before commencing legal action. Issuing legal proceedings should always be a last resort, and so both parties need to have ideally first tried to settle their dispute without having to involve the court.

Whilst there are already Pre-action Protocols for other types of civil claims such as personal injury, professional negligence and possession claims, certain business debts will also now need to follow a set 'pre legal action' procedure.

The Protocol is designed cover businesses claiming repayment of a debt or unpaid invoices from an individual. However the definition of an individual includes sole traders, so the Protocol also applies to business to business debts when a sole trader is involved.

There are also a few exceptions where the debt protocol doesn't apply, mainly around claims where there currently is another Pre-action Protocol that exists (such as with mortgage arrears or construction and engineering disputes).

​Part 2.1 of the Pre-Action Protocol outlines its aims, however in summary they are to:
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• Promote early engagement and communication between the creditor and the debtor, ensuring the timely sharing of information on the amount owed to ascertain if any points are disputed;
• Encouraging the parties to settle the matter without court proceedings by considering paying by instalments or using alternative dispute resolution;
• Ensure both parties act reasonably and in a proportionate manner;
• If court action is unable to be avoided, support efficient management of court proceedings.

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While a primary goal of the protocol is to provide additional time and protections to consumers, it actually includes many business to business debts. This is because the protocol considers both consumers and sole traders to be individuals.

Failure to comply with the Protocol prior to commencing court proceedings may result in the court imposing sanctions against the creditor or claimant. The sanctions imposed are likely to be in relation to costs.​

To quote the Protocol: "If a matter proceeds to litigation, the court will expect the parties to have complied with this Protocol."

​If the debtor states that they are looking to gain professional debt advice, the creditor has to permit the debtor reasonable time for them to obtain this advice, at least a further 30 days. This may be longer if the debtor can provide a reasonable explanation as to why it will take additional time to obtain the advice.

If the debtor states on the Reply Form that they need more time to pay the debt, the parties should attempt to reach an agreement for the amount to be settled by instalments. If a payment schedule or agreement cannot be reached, the creditor must confirm in writing why it does not accept the debtor's instalment proposal.

Should a partially completed Reply Form be received, the creditor is expected to make contact with the debtor to discuss the content and obtain the further information necessary to understand the debtor's position.

A creditor ignoring the debtor's reply and their reasons is not an option.

​If there is a disagreement about the debt being owed or the exact amount, then the parties should consider mediation or any other forms of dispute resolution rather than commencing court proceedings. This may be a formal process with an ADR provider or may simply take the format of a documented discussion and negotiations.

After these negotiations if an agreement is still not reached, then the creditor should give the debtor notice of at least 14 days of the intention to now commence court proceedings.
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​The new Protocol creates a more formal and paper heavy procedure for your business to collect overdue invoices, as it requires that additional documentation and time is given to the debtor.

​Plus there is always the potential for persistent debtors to use the Protocol to further delay payment.

So as a business you need to stay on top of your credit control procedures and issue a Letter of Claim as soon as it is reasonable to do so. Also having a solicitor draft the letter in compliance with the Protocol ensures that you can move quickly to court action should payment not be forthcoming.