The likelihood is that the unsuccessful party will have to pay certain limited expenses to the successful party. For example, any court fee the successful party has paid; a fixed sum (normally no more than £90) if a solicitor has prepared the court documents when the claim was started; loss of earnings or loss of leave due to attending the hearing of for the successful party and each of their witnesses; and up to £200 for any expert whose report has been used.
Where the court decides one side has behaved unreasonably, that side may have to pay further costs to the other side which the court would assess and which could include additional loss of earnings and expert’s fees and could extend to lawyers’ fees. In deciding whether there has been unreasonable behaviour, the judge might take into consideration the rejection of an offer to settle the case made by the other side (although such a rejection could not alone amount to unreasonable behaviour). What is or is not unreasonable behaviour will depend on the circumstances of each case. But it might include attempting to deliberately mislead the judge or the other side, deliberately telling lies or failing to turn up for the final hearing without any apparently good reason and without having told the court and the other side of the intention to stay away.
If a small claim is defended both sides will be sent details of the free mediation scheme which is available in most case (but not, for example, in claims arising out of road traffic accidents and tax claims). Mediation normally involves an independent professional mediator provided by HM Courts and Tribunals Service speaking to both sides by telephone and exploring with them the possibility of a settlement which will avoid a full court hearing.
Mrs Smith v Green & Co
The following example is designed to help guide you through a small claims process. It has been put together with the help of District Judge Gold who stresses it is meant to serve for illustrative purposes only. He points out ‘every case is different and is judged on its own merits’. ‘The conclusions reached in this scenario are unique to this case, and we have left out a lot of the details that might otherwise play a part in the overall decision. However, it is designed to give you a good overview of how a small claims case works how you might make a claim’.
The story and the characters are all fictional.
Example: Mrs Smith bought a new dining room table from Mr Green’s shop Green & Co for £750. It was in perfect condition when viewed. Green & Co had a member of staff deliver it to Mrs Smith’s home later that day. The next day, Mrs Smith discovered that the table was badly scratched. She telephoned Mr Green who told her that the table must have been scratched by her children (and perhaps she should supervise them more closely). She immediately wrote to the shop to complain, asking for a refund and informing him that if he did not pay up within seven days of the date of the letter, she would take him to court. Green & Co returned the letter with a scribbled note: ‘See you in court.’
What should Mrs Smith do next?
- Look into making a small claim?
- Phone the police?
- Ask Mr Green once more to refund her money back?
Yes, consider the small claims process if you do not think you will get any further by discussing things with Green & Co. Mrs Smith could make a county court claim for the £750, and also ask the court to order him to pay the court fee on starting the case and interest on the £750.
If you have good reason to believe you will be able to persuade Green & Co to refund your money then there is no harm in contacting him. Don’t do this by phone. Make sure that you take copies of any correspondence. If you are unsuccessful at persuading Green & Co, then this correspondence may form part of any court proceedings in the future.
Keep calm when pursuing your claim with Green & Co. It is a crime to harass someone who you believe owes you money or to send them threatening letters if your purpose is to cause distress or anxiety to its recipient. Stating your case in a reasonable way and warning that you intend to go to court should the claim not be settled within a stipulated time and what you will then ask the court to do, is legitimate enough. If further communication does not work, then you may wish to make claim in the county court.
No criminal offence has been committed by Green & Co so the Police will not get involved.
Thanks to District Judge Stephen Gold, who has presided over the small claims track for some 17 years, for allowing us to use his guide to the small claims process.
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award