Introduction
A small claim is defined as one that is of £5,000 or less.
If you claim is for more than this amount, then it does not qualify to be passed through the small claims procedure.
This article discusses preliminary considerations before making a claim, how the small claims system works, required forms and administration procedures and your day in court.
Preliminary considerations
If your small claim is against an individual, or a small business where you can communicate with a real decision maker, then do communicate and compromise as far as you can. It is cheaper and quicker to settle your dispute out of court if at all possible.
The larger the organisation with whom you are in dispute, the more likely it is that you will have to issue a claim in court. There are two main reasons why large organisations do not settle your small claim. The first is bureaucracy and disinterest. The second is policy.
Many government organisations are prone to disinterest to your claim that they owe you money. The bottom line is that your claim is far less important to them than it is to you. If you suspect your dispute may be stalled on account of inertia, it is always worth a last telephone call and attempt to get through to someone high enough in the organisation to be able to make a meaningful decision;
The golden rule is to get a first name and last name, job title, and commitment to pay a fixed sum (or the action you seek) by a particular date. If all of those are not in place, then issue your claim.
On the subject of policy, a very large number of organisations take the wholly immoral view that you are afraid to go to court. It follows logically from this that they will first ignore your complaint. If you are very persistent they will prevaricate and delay in correspondence in order to wear you down. If you are still there after six months, they may make some derisory offer. Culprits here include many larger holiday tour operators, telephony companies, utilities and other services suppliers;
However, other companies are equally unscrupulous. If you fail to recognise this, you will not succeed in your claim.
How the system works
Let us get one thing clear first. There is no such thing as a small claims court. In April 1999, new Civil Procedure Rules rearranged the administration of justice, particularly with regard to the county court system. So far as small claims are concerned the situation is simple: if your claim is for less than £5,000, it will automatically be allocated to arbitration before a district judge, rather than to a hearing in open court, before a more senior judge. That is referred to as “small claim” and the arbitration system as a “small claims court”.
There is also the Money Claim Online system.
We must differentiate the small claim system from arbitration under the Arbitration Act 1996. That covers arbitration before an expert who is unlikely to be a lawyer. It is used almost exclusively for commercial matters.
That sort of arbitration is also less formal than the usual court procedure, but it involves the parties paying an arbitrator, who is usually an expert in a particular field. In court, you pay a modest court fee; in arbitration, you pay for expensive professional time.
By contrast, a judge is a legal expert, who is employed by the State in a judicial capacity. That makes him very greatly more experienced at sorting out justice in a dispute than an arbitrator who may handle one claim every ten years. Because the arbitrator is qualified by his professional expertise, he may be quite unskilled at managing your arbitration. Our advice is therefore to avoid arbritration.
Back to small claims: the procedure was set up to be very flexible. There are virtually no procedural rules, either in matters before you get to court, or during the arbitration hearing. Unfortunately however, the standard of justice under a district judges is variable and each has his or her own way of dealing with small claims. The result is that in some cases you can go to hours of trouble in setting up your claim or defence, only to find that the judge neither reads nor refers to any of it.
Before a different judge, you may find that you are required to bring witnesses, prepare evidence and schedule lists of documents. The problem is not with the judge’s discretion, but with the system that does not require the judge to tell you how he will deal with it. Our advice is that you should prepare your case on the assumption that all your story, papers, witnesses and documents will be required.
Although the quality of justice may vary, it is a fact that anyone can manage his or her claim through an arbitration hearing. You really do not need any legal experience at all.
Forms and administration
To start a claim you must complete a form N1. An explanation as to how to complete it can be found at legaldocuments.co.uk.
Either include or attach to it a statement of your case. It is usually easier and more efficient to attach this as a separate document entitled "Particulars of Claim". Number each paragraph; keep it relevant, with short sentences. Do not include what you think.
Separately, draw up a document headed "Statement of [your name]" and attach it. In that you can say what you think or thought. You can tell more of a story. Do not ramble. The statement is not required or even usual. But often it has the effect of engaging the judge’s sympathy. (It should not, but it does).
Then send these papers to court with the appropriate fee. The court "issues" your claim by registering it in their books. They will also send a copy of it to your defendant. The defendant can either admit your claim or oppose you. If he opposes, he has 21 days within which to acknowledge receipt of the papers to the court, and another 14 days within which to put in a defence. The court will automatically send copies of these documents to you. You should address all court correspondence to: The Court Manager. Remember that the staff will pass all important letters to a judge for a decision, so keep it polite, but avoid groveling!
At this time your case has not been allocated to either the "fast track" or the "small claims track". When the defence has been filed, the court will send an "allocation questionnaire" to both sides. The purpose of this is to enable the judge to whom the management of your case will be allocated, to assess how it can be taken forward efficiently. If the value of the claim (or counterclaim) is less than £5,000 it will be allocated to the small claims track. That means it will be taken forward to arbitration without the formal provisions about disclosure and questions, which usually follow in a "fast track" case.
After a further week or two, the court will give you a date for your arbitration hearing - probably three to four months ahead. Instead of just waiting for this time, it is a good idea to make sure you have absolutely all the information you need to take your case forward. You cannot expect the Judge to be sympathetic if you do not present all of the facts. One of the purposes of the procedure in the small claims track is to keep everything simple and uncluttered. However, it may be important to your case that the other side produces as evidence some document you know he has, or perhaps answers a critical question of fact. If you are quick, you do now have an opportunity to ask the defendant for this document or information.
Set out clearly why it is important for your case and specify that you require it within seven days. If you do not receive it, then you should write to the court immediately, requesting a formal order that the defendant should produce the information for you. Tell the court it is important that you have the information / document well before the hearing. If the District Judge considers your application to be frivolous, or of small importance, he will simply say that the defendant will answer your questions at the time of the hearing. If however your questions, or the information you seek, are of importance, then the Judge will make the order in your favour.
Your day in court
Court imposed appointments and "do by" dates are very important. Only a crisis in your life is sufficient reason to justify a change of date. If you do return a paper late or miss a date, telephone the court immediately you become aware of the problem and seek their confirmation, that you will not be prejudiced if you comply immediately. You may have to write to the court to ask for an "extension of time" or to take some action "out of time". If you are delayed by traffic in arriving at court for your hearing, you may well find your case has been decided in your absence.
When the time comes for the hearing itself, you should arrive at court in good time and find the notice posted on the wall of the entrance hall or reception area, which lists the cases for the day. If you can't find it, ask the staff. A small claim is not heard in a large court room, but in the judge’s “chambers”. This is not his own office, but a small room, often with a T-shaped table, where the judge sits in the middle of the top branch, while you and your opponent sit either side of the long leg of the T. It is large and spacious enough to accommodate a number of people.
The judge will either invite you to present your case, or more likely, will simply dive into the papers and ask questions of one party or the other. Some judges adopt an inquisitorial role, whilst others are prepared to allow both parties to present their entire life's story.
Remember that you are entitled to be heard. There is no fixed procedure as to who says what. On the one hand you should avoid interrupting the other side whilst they are in full flight, but on no account should the Judge cow you to the extent that you are unable either to explain the circumstances of your case, or to oppose statements made by the other side. If you find you have an inquisitorial judge, then:
- interrupt very tactfully
- do not repeat yourself
- be very firm on the point that you would like to say more
- if the Judge accedes to your request with bad grace, do not be bullied into shortening what you say
- if you want the judge to take account of what you are saying, keep your content relevant and concise
- do not use legal expressions unless you are absolutely certain what they mean
May justice prevail!