What happens at a small claims hearing?
At the hearing, the judge will decide in what order to hear the claimant and defendant and their witnesses although the claimant and the claimant’s witnesses will normally be heard before the defendant and the defendant’s witnesses.
The judge may give an indication at the beginning of what they consider to be the salient points to be concentrated on and will probably put various their own questions of their own to each side and the witnesses. Each side will be given an opportunity to give their version of events and to call any witnesses they wish to rely on; to question the other side and the other side’s witnesses; and to sum up at the end of the evidence should they wish to do so. The witnesses may not ask questions of either side or other witnesses. Each party my take notes as the hearing progresses.
The judge may be prepared to take into account written statements by witnesses who are not present in court. But if their evidence relates to a factual matter that is in issue, it is far better that they attend. If they are absent, the witnesses cannot be questioned by the judge or the other side and so their accounts are not capable of being tested. For that reason, the judge may feel the evidence is of little or no value.
If the court has ordered that each side to prepare statements of the evidence of themselves and any witnesses they want to rely on then these statements should be drawn up separately for each person concerned. They should be concise and, preferably deal with the facts they cover in date order and have numbered paragraphs. The maker of each statement should also sign the statement at the end and put in the date on which the statement is being signed. In so far as the statements of the parties are concerned, these would normally give more detail than is contained in the defence.
Mrs Smith has decided that she wishes to ask her eldest daughter to be a witness on her behalf. Mr Green decides that his driver should be his witness. A witness is someone who can give relevant evidence to the court. There is no rule of law in a civil case that one of the parties cannot rely on the evidence of their husband, wife, other family member, partner or friend. That the witness is related to, involved with or friendly with the party does not mean they will tell lies. The witness might well face the allegation from the other side that they have given partisan evidence because of their connection with the party or because they have a vested interest in a successful conclusion for the party for whom they are giving evidence. And the judge may take into account when assessing the credibility of a witness, whether they are independent or in some way linked with the party who has called them. But any witness has the potential to make a difference to the case.
If a witness whom a party believes is material and necessary to their case declines to voluntarily attend court as asked by the party, then that party may have their attendance compelled by the issue of a witness summons by the court.
The judge may decide to ask questions designed to clarify any points raised in the case. This is so that they are able to reach a satisfactory conclusion, knowing that they have heard all the relevant points.
So, what questions do might the judge usefully ask:
- Mrs Smith, is it possible that your children scratched the table?
A crucial question: The judge wants to establish whether she is prepared to exclude damage by her children as a possibility. The judge has to decide if it is more probable than not that the damage was caused before delivery or by the deliveryman. The claimant’s own acceptance of the possibility of damage after delivery is very significant.
- Mrs Smith, can you tell me what Mr Green was wearing on the day you purchased the table?
The question is not relevant. It might have been relevant if there was a dispute about the identity of the person who had served Mrs Smith and what that person had told Mrs Smith was material. But there is no such dispute here.
- Mr Green, how many complaints have you had about your driver from dissatisfied customers?
What happened in relation to delivery to Mrs Smith is what matters and not what may have happened in relation to deliveries to other customers. But if there had been previous customer complaints about the driver’s efficiency, it might raise the possibility that those complaints were justified. If they were justified, this could increase the possibility that the driver, on the occasion of the delivery to Mrs Smith, had been inefficient -and so caused damage – in the same way as it had been claimed he had been inefficient previously. Note the way in which the question has been framed. The question is put on the premise that there have been previous complaints. It might be thought that, if, in fact, previous complaints had been made, Mr Green would be prompted by the terms of the question to deal with the number of those complaints rather than deny outright that there had been any complaints at all.
- Mr Green, are you satisfied with your driver?
What Mr Green – as distinct from his customers – thought of the driver’s efficiency must be relevant and would be a prospectively helpful area on which to concentrate.
- Mr Green, you mentioned that Mrs Smith’s children were badly behaved. Why did you say that?
The more disruptive were the children in the shop, the more likely they would have been disruptive at home and responsible for the scratching of the table after it had been delivered. The judge may take the view that the children could well be the culprits. How likely is this to be? It is an area the judge will wish to probe. Therefore, the question – and any supplemental relevant questions on the same theme – is of importance.
- To the driver: Do you have any convictions for dangerous driving or speeding?
The question is probably irrelevant and may be improper. A driver who habitually drives dangerously or exceeds the speed limit may nevertheless be fully capable of manoeuvring a table in and out of a van and depositing it in the living room of a customer’s home without scratching it. There is no real link between a driver’s failure to comply with the Highway Code and to drive safely and the way he performs his duties in accordance with his employment. Further and in any event, any evidence – and so questions on the subject – about a spent conviction for a criminal offence against a witness are usually inadmissible in civil court proceedings (under the Rehabilitation of Offenders Act 1974 which generally ‘wipes out’ criminal convictions after periods of crime free living; the more severe the sentence, the longer the period needed – for example, five years for an offence that was punished with a fine [HL]).
- Did you see her children whilst you were at Mrs Smith’s home?
Any evidence tending to show that the children’s lively behaviour in the shop had not stopped by the time they had returned home is relevant to the issue as to whether the children might have caused the scratched to the table.
- Can you tell me whether there was any opportunity for the children to damage the table after it was delivered?
Whether the children had access to the table and, if so, to what extent is highly relevant to the issue as to whether they might have scratched it. A predilection to behaviour which might bring damage about is one thing: the opportunity to do that damage is another.
- To the daughter: Why are you and your brother so badly behaved?
This is irrelevant. What is relevant is whether the children may have behaved in such a way at their home as to scratch the table and not why so.
- Can you tell me whether you saw the table when it was delivered, and did you notice any damage?
This is relevant. Firstly, the condition of the table after it had been brought into the house is relevant to when it could have been damaged. Secondly, the ability of the daughter to comment on the condition suggests that she was in close proximity to the table and had for some reason taken more of an interest in it than might in the ordinary course of events to have been expected.
Mrs Smith versus Green & Co: the verdict
The outcome will depend on whether it is more probable than not that the table was damaged before delivery or by the driver as he was delivering. This is the ‘balance of probability’ test or standard of proof – what is more probable than not – that is normally applied in civil cases. It is a lower standard than applies in criminal cases where it must be proved ‘beyond all reasonable doubt’. There are no right or wrong answers in this instance, so choose from the options below based on your own view.
- The table was damaged before or during delivery – Mrs Smith is entitled to judgment in her favour 
- The table was damaged after delivery – Mrs Smith is not entitled to judgment in her favour and her claim must be dismissed 
Mrs Smith wins
At the hearing the judge considered that if the table had been damaged after delivery, the likelihood was that only the children could have been responsible. But the judge had been particularly impressed by the evidence of Mrs Smith’s daughter. The daughter had acknowledged that she and her brother had been in good spirits in the shop and later at home but they had not touched the table and could never, even accidentally, have caused the serious damage shown in the photographs. Although Mrs Smith had signed the delivery note to the effect that the delivery had been made and the condition of the table was satisfactory, the judge believed Mrs Smith had failed to inspect the table before signing or to even read what she was signing. The deliveryman had been in a hurry and she had felt under pressure. On the other hand, the deliveryman’s evidence was unsatisfactory and confused. Although Mr Green was a truthful witness, he was in no position to give first hand evidence about what had happened after the table had left his shop. It was more probable than not that the damage was damaged in the course of delivery.
Mr Green must now pay Mrs Smith the £750 she claimed with interest along with the court fee paid when she started the case and witness expenses. These expenses comprise the cost of travelling to and from the court. Payment is to be made directly to Mrs Smith within a fortnight.
Mrs Smith is unsuccessful
The judge has decided that two of the most significant matters were Mrs Smith’s signature to the delivery note and the children’s behaviour. He found Mrs Smith to be a pedantic person. In the shop, she had been very particular about her requirements and unruffled by the way her children were conducting themselves. She was a woman of intelligence and he did not think she would lightly sign a document like a delivery note without reading it and appreciating its significance and without carrying out a careful check of the table. The children had been boisterous both in the shop and at home and could easily have caused the damage, albeit accidentally. The judge is in no doubt that the table was undamaged when it left Mr Green’s shop. Although the driver had a tight schedule, he did his work with care and was a witness of truth. He had left his employment with Mr Green but had voluntarily come to court at Mr Green’s request because he felt so strongly about the case.
The judge dismisses her claim and orders her to pay Mr Green loss of earnings of £50 and travelling and car parking expenses.
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 including the Mrs Smith/ Green & Co Case study.
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