The courts should always be an option of last resort – and that is true of the small claims process. It is wise to attempt to settle a claim before a small claim is started. Before making a claim, write a letter explaining the complaint and what is being asked for and allow time for a written response. Failure by one side to follow this course, or an over-hasty recourse to the court, could lead to you winning but failing to secure the benefit of a costs order to cover the cost of your court fees, and other expenses or interest on the money awarded to you.

 

If you are not sure about the legal strength of your claim (or defence) take independent advice INSERT LINK TO INFO ABOUT CAB AND LAW CENTRES.

 

The Courts and Tribunals Service provides its own guide to using the small claims court (EX301: making a claim).

 

Fes and costs

You have to pay fees to bring a claim and at two later stages of the case if it is defended (when it is allocated to the small claims track and when a hearing is fixed). You might also expose yourself to an order for costs in favour of the other side – see below. Check out the court service web site to find out how mush the courts fees come to [HL]. You may not have to pay some or all of the fees depending on your financial circumstances and whether you are on certain welfare benefits.

If you are successful, then the other side might be ordered to pay back those fees to you, and if you lose you might have to pay any fees the other side has incurred. The fact that you have been exempted from a court fee does not protect you from an order for costs being made against you subsequently in the case if a judge considers that such an order is justified.

As an alternative to taking or posting the paperwork to start the case to the local county court, you can begin a claim on-line (www.moneyclaim.gov.uk) if only money is being claimed (less than £100,000). Payment of the court fee on starting the case can then be made by debit or credit card. However, there is a limit on-line on how much the claimant can say about the case in the particulars of claim [HL]. The claimant is restricted in word count when starting a claim on- line. It is better not to use the on-line service if this might mean leaving out important information. Otherwise, the claimant may be faced with a request by the defendant for more information about the claim or an order of the court that the claimant provide more information. The defendant might even apply to the court for the particulars of claim to be struck out and the claim dismissed because the particulars of claim did not disclose reasonable grounds for the claimant bringing a claim. But there is an on- line choice now available. You can start the case on-line and then afterwards send the court and the other side the particulars of claim. But the other side’s time for putting in a defence will not start to run until they have received the particulars of claim.

The particulars of claim should be concise – enough to enable the judge and the defendant to understand what the case is about. Imagine you are explaining the case to a total a stranger who knows nothing about the dispute. Documents and evidence to back up the claim can follow later, although an important document which you want to rely on can be copied with the claim form.

If the amount you are claiming can be quantified then a fixed – specified, it is called – sum should be shown in the claim form. In some cases – say where the claimant is seeking compensation for pain and suffering arising out of a personal injury sustained in a road accident or for disappointment and distress for a spoilt package holiday – it is usual for the claimant to claim an unspecified sum such as ‘damages limited to £1,000’. It will then be left to the judge to decide exactly what the claim is worth and how much, if anything, the defendant should be ordered to pay to the claimant. The more you claim the more you pay in terms of fees.

If you are bringing a claim you will usually be entitled to ask for interest on the money you are claiming. If you want interest, you must say so in the particulars of claim.  If the total claimed (excluding the court fee paid on starting the claim and, usually, excluding interest as well) is over £5,000, a claimant is entitled to forgo the excess and limit their claim to £5,000 so as to keep the case within the small claim limit.

 

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.

 

Do you need a lawyer in the small claims process?

‘The whole point of the court is that you shouldn’t be prejudiced by the fact that you’re a litigant in person. The courts are very clear about that,’ agrees Which?’s Espe Fuentes [INSERT HYPERLINK http://www.guardian.co.uk/money/2011/may/29/small-claims-court-limit-rise]. ‘It’s a straightforward process. Many of the procedural rules don’t apply and it has a more relaxed atmosphere. It is up to the judge as to how they run the case and can be more of a conversation as to what has happened.’

District Judge Stephen Gold points out legal help is useful in preparing the paperwork to start off the claim (or in preparing the defence to a claim) even if you do not intend to use a lawyer at the hearing.

Neither the judge nor the court staff can give legal advice but the court staff will be able to help on court procedures. Free legal advice might be available from a law centre (go to www.lawcentres.org.uk), the Citizens Advice Bureau or a consumer advice centre. Free help may also be available from special advisers and mediators under new schemes being set up at certain county courts to help people who are or may be involved in a small claim.

Judge Gold also says that judges ‘do everything in their power to make the process less intimidating than it might otherwise be with a full-blown trial’. As he points out, there is ‘none of the usual paraphernalia of dressing up, taking the oaths and having lots of procedural steps beforehand’. ‘

District Judge Gold explains that hearings are often in Chambers and take place in an office and so is ‘less intimidating than a court’. ‘The two parties might be at a T-shaped desk sitting opposite the judge but on the same level.’

One ‘very important distinction’ is that the judge adopts ‘an interventionist approach’, continues Judge Gold. ‘He doesn’t necessarily wait for each party to tell their story but will try to grab the case by the scruff of the neck in the nicest possible way.’

 

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.

Profile photo of Jon Robins About Jon Robins
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

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