(This paper refers to the now superceded Small Claims Court.
What is said here still applies generally however)
Claims for UKP3,000 or less are also referred to arbitration unless they include a claim for damages for personal injuries over UKP1000.
You can also apply to have a claim which is not "automatically referred" dealt with by arbitration instead of a full trial. You should take advice on this before making any decision.
Preliminaries
If you are at all unsure as to whether you have a legal
right to make a claim against someone, take advice first. It is far better to
find out where you stand now rather than to put time and effort into court
proceedings only to find that you were on a "non starter".
You cannot get this advice from staff at the court. They can help with you procedural matters, but are not allowed to give legal advice on the validity of a claim or defence.
The staff at most Citizen's Advice Bureaux have had some training in consumer legal problems. Many Bureaux offer free advice sessions attended by local solicitors. Many solicitors offer an initial half-hour interview free of charge.
If you wish to make a claim against someone, first put that claim to them directly and in writing. Send them a letter setting out your complaint and stating how much (or what) you are claiming. In the letter state that unless you receive satisfaction within a specified number of days (usually ten or fourteen) you will start legal proceedings. Keep several copies of the letter.
You will be charged a fee for issuing the proceedings which varies according to the amount you are claiming. In exceptional circumstances the fee can be waived, for example if your an receipt of income support.
Starting an Action
If you do not receive a satisfactory response to
the letter, take a copy of it to your local County Court and explain that you
wish to start a small claim. The staff cannot give you legal advice, but they
can help you fill in the forms. The standard form of summons includes a space
for you to write your claim. You may find it easiest to put "as in the attached
letter" and fasten a copy of your letter making the claim to the form. You will
need three copies of the letter - one for you, one for the Court and one to be
sent out with the summons (or one for each summons if there is more than one
defendant).
If you want to claim interest on the money, you must say so on the summons. The Court staff will help you with the wording, and can tell you the current "statutory rate" of interest which you can claim.
The summons is sent to the Defendant with a form for him to complete. This form gives him various options which include admitting the claim but asking for time to pay, admitting part of the claim or denying the whole claim. However he completes the form, you will be sent a copy with a form explaining what to do next.
If the Defendant does not return the defence form at all, you can enter judgment. The Court staff will help you work out when the time limit for him to return his form has expired and how to enter judgment if it has.
The rest of this note assumes that the Defendant is denying the claim - part of it or all of it - and most of the recommendations apply to Defendants as much as to Plaintiffs.
If the Defendant is denying the claim, more often than not the case will automatically be transferred to his "home" Court - a County Court near to the address you have given for him. If this is grossly inconvenient for you, and your local court would not be grossly inconvenient for the Defendant, you can apply for the case to be transferred back. However, you must apply to the Court to where the papers have been sent. Write a letter setting out your reasons. Remember to confine the letter to your reasons for wanting the matter transferred back - do not go into your whole case.
The Small Claims procedure is intended to be as simple as possible. You will find that things move very quickly to a date for the "hearing". Before that, you will get a form telling you what you need to do.
Getting ready for the Hearing
If you intend to refer to any documents
in the hearing, you must send copies of them to the other party and the Court.
If you fasten them together and number the pages, you will find it a lot easier
to refer the Judge to the right one. Make sure that you, your opponent and the
Court all have identical bundles numbered in the same way!
If the case is about a motor accident, it always helps to have a plan of the location, and it is even better if photographs can be produced as well. Try to agree a plan with the other side. Draw your plan and send them a copy asking them to agree it, or to send you a copy of their plan if they disagree with yours. Do not draw the location of the vehicles on the plan as you will probably disagree about that. Take several copies of the plan to the hearing. The witnesses can then draw vehicle paths and locations on them when they give their evidence.
Before the hearing make a list of the things you need to prove to make out your case (or your defence). For example, say your case is that the Defendant drove his Dark Blue Fiesta into your car while you were stationary and you want him to pay for the repairs, and he replies that his Fiesta is Forest Green, and that he was stationary when you drove into him. There is no need to prove the colour of his car because he is accepting that a car he was driving was in collision with yours. It does not matter what colour it was. You do need to prove who was stationary, and how much the repairs cost.
Sometimes there are witnesses. If a witness will come to court to give evidence in your support, this is best. He may be reluctant, and may say that he will give you a written statement (or he may have already given one to the police or your insurers). You can produce this statement to the Judge as part of your case, but he will not attach as much "weight" to it as he would to verbal evidence from someone who is present to answer questions.
You can force someone to come to court (the staff will tell you how) but think carefully about whether someone you have dragged there against their will is definitely going to support you!
If there is a technical argument between you and the other party, you may need technical witnesses. Say you are demanding a refund of the price of a television because it does not work, and the other party says that the TV is fine but your aerial is badly set up. If you reply "no it isn't" and he says "yes it is", neither of you is helping the Judge much (unless you happen to be an expert in the field yourself).
Look at the list of the things that you have to prove to get your money back: that you bought the television from the Defendant, how much you paid him for it, that it does not work, that you asked for your money back as soon as you discovered it did not work.
You do not need evidence to prove the first two because the Defendant is not denying it. He does not seem to be denying the last point either. Your argument is about the aerial. One way to settle it is to get an expert aerial installer to check your aerial and give you a written report. Or you might ask a TV expert to check the set and say that it does not work on his aerial either. He may even specify what the fault is. The report should be among the documents you send to the other side and to the Court. If you win, the other side may be ordered to pay his fees (up to a maximum, currently œ200).
Remember, however, that there is no need to prove something that is not disputed. If the Defendant is saying that the TV does not work because you dropped it and makes no mention of your aerial, you do not need to prove that your aerial is OK. If you spend money on an aerial expert, you will not get it back because the viability of your aerial is not in dispute.
If needs be, check your list of what you need to prove with someone. Make sure the list includes everything you need to prove to make your claim, and nothing that is irrelevant. For example, if your claim is for damage to your greenhouse caused by rubbish which your neighbour threw over the fence, it is not relevant that your neighbour regularly greets you with four letter words in the morning or that his children damaged your child's bicycle.
Tick off the parts that are agreed. If our TV seller is not denying that you bought the TV from him, you do not need to prove it. It would be useful, however, to include the receipt in the documents you use because that will put the price beyond question.
A quick word about payments. The best proof of a payment is a receipt. It is not, however, fatal if you have not got one. Someone may have seen you pay cash over. Or you may be able to produce the processed cheque from your bank (your cheque stub is not enough - it does not prove what was written on the cheque, nor to whom you gave it). It may be that your verbal evidence is all you have. That may be enough - at the end of the day, it is all a matter of whom the Judge believes. And, of course, you only need to prove that you made a payment if the other side is denying that you did.
The "burden of proof"
You will have seen enough news reports and TV
dramas to know that to win a criminal case, the prosecution have to prove
"beyond reasonable doubt" that the defendant committed the crime. This is called
the "burden of proof".
There is a different "burden" for civil (non criminal) matters. The claimant has to prove his case "on a balance of probabilities." There are a lot of technical definitions of what this means, but basically you have to convince the Judge that your version of events is more likely to be true than any other version.
This "burden" is on the person making the claim. The Defendant succeeds if he prevents the Plaintiff from convincing the Judge. The Defendant does not need to convince the Judge of anything himself.
Of course, if the Defendant is also making a counter-claim, he has to meet the "burden of proof" to win his counterclaim.
For example, what would happen if two motorists were making the same claim? Both say that they were driving at a safe speed on a bend in a narrow country lane when the other driver came round the bend too fast. Both say that they stopped in time, and it was the other driver who caused the accident because he could not stop quickly enough. It may be that there was an independent witness or other evidence, but often there is not.
The Judge may say that neither party has succeeded in convincing him that his version of events is more likely to be true than any other. He may even say that as far as he can see both vehicles might just as easily have been moving at the time of the collision. He will dismiss the Plaintiff's claim because the Plaintiff has not "discharged the burden of proof", not because he believes the Defendant instead.
For the same reason, the Judge will dismiss the Defendant's counterclaim because the Defendant has failed to convince him that he, the Defendant is right; it is not because he finds the Plaintiff more believable.
There are situations in which the "burden of proof" can pass to the other side. The commonest is when it is impossible to prove a negative. If the Plaintiff is suing for payment, and the Defendant claims that he has paid how can the Plaintiff prove that he never received any money? It becomes the Defendant's job to satisfy the Judge that he did make the payment he claims to have made.
If you find yourself in this situation the Judge will explain it.
The Hearing
Small Claims are heard by a District Judge in "chambers" -
in a private room. The Judge sits at the head of a table and the parties and
their witnesses sit on either side. No-one else is allowed in the room.
It is not a trial. The Judge has a wide discretion in the procedure he will follow. He will explain it to you as the case goes on.
Usually, he will simply ask each party (and their witnesses) to tell him their evidence. Tell your story. Try to tell it in sequence, and try to keep to the important parts - the list of things to be proved.
Try to remember that the Judge wants to hear the whole story, even though some of it may be in your letter of claim. If you are complaining about a second-hand car, do not just say "We saw the advert and rang him and then went up there to see it and he said it was a good one."
The Judge wants to know what advertisement you saw (he would like to see it if you still have it), who you rang, when you rang, what you agreed to go to see, when you agreed to go, where you went, who the "we" that went were, who you saw, and who said what was "a good one".
The Judge may ask a few questions. Usually, you will not be asked to "cross-examine" the other party or his witnesses and will not need to, although the Judge will allow you to if you wish.
If you asked whether you have any questions to put to the other side, keep them simple. There is no point having an argument. The intention of your questions should be to make the other party comment on part of your case that he has not referred to, or tell the Judge something that he has not mentioned previously. Do not worry if you think you cannot do it. The Judge will ask his own questions anyway.
Take your turn at speaking and resist the temptation to interrupt, no matter how much the other party is annoying with what he is saying.
When it is your turn to speak, keep "on the subject". Keep an eye on your list of the things you have to prove and make sure that those are the things you talking about.
Keep the other eye on the Judge's pen. He is making a note of what is said. If he is struggling to keep up, slow down a bit!
The decision
The Judge's decision in an arbitration is called an
"award", not a judgment or verdict. For your purposes it ranks the same as any
other judgment of the County Court.
At the end of the case the Judge will make his decision. In the majority of cases he will tell you the decision straight away. Occasionally he may say that he will have to think about it and send you a written decision later.
Remember that he will decide "on the balance of probabilities". The Plaintiff must satisfy the Judge that his version of events is more likely to be accurate than that of the other party. The same is true the other way round if the other party is making a "counter-claim". It can happen that a Plaintiff will lose because he has failed to do that. The Judge has not necessarily disbelieved you, he has simply decided that as far as he can tell from what he has seen and heard your version of events is no more likely to be right than the Defendant's, and he cannot choose between them. The person making the claim must win, or he loses; a draw is enough for the other party because the claim will be dismissed.
The Costs
If you have sued someone successfully, there are some costs
that you can also recover. The "no costs" rule is that you cannot recover the
cost of a solicitor to prepare the case and represent you.
You can in fact get a solicitor to complete the initial form of summons for you and claim the cost of that. However, the amount you can claim is strictly limited and is probably a lot less than the solicitor would charge you for doing the work. You would be out of pocket.
You can also claim the cost of your "expert" witness up to œ200. In addition you can claim up to œ50 for each witness' loss of earnings or other expenses (and remember that you are a witness), plus each witness' travelling expenses.
Some Judges will only deal with costs if they are asked to while others give their decision and then ask you about costs. If he does not ask you, ask him. Once you have left the court it is probably too late.
Similarly, if you lose the other party can ask for an order that you pay his expenses.
The appeal
You can only appeal against the Judge's decision for one of
two reasons: either because he "erred in law" (ie made a mistake about the law)
or because he "misconducted himself" during the hearing.
If your case hinged on a point of law, you will probably have taken advice on it in the first place. If you think the Judge got it wrong, take advice again before appealing.
If you are not sure whether there was a "point of law" involved, check. It can be difficult. Here's an example. Your neighbour has a vast temporary swimming pool. One night vandals damage the skin and it splits, spilling thousands of gallons of water which flood out of his garden and across yours, washing away your prize roses. You sue him for the cost of the roses and damages for loss of your enjoyment of them.
The law says that if you accumulate something on your land which is not a "natural use" of the land and is likely to "do mischief" to your neighbour if it escapes, and it escapes, you are liable for any damage your neighbour suffers if you were to blame for the escape. This is called the rule in "Rylands v Fletcher" because that was the first time such a case was recorded.
The Judge dismisses you claim for two separate reasons:
Number (1) is a point of law, and the Judge has got it wrong. There is another case which says that water can be a potentially dangerous thing within Rylands v Fletcher. You can appeal.
Number (2) is a finding of fact, not a point of law. The Judge has decided that the fact of the matter was that your neighbour had taken "reasonable" steps.
Now there is no point appealing. Even though you will win the appeal on point (1), you cannot appeal point (2). You have failed to "discharge the burden of proof" and convince the Judge that your neighbour should have taken more precautions (perhaps because there was a lot of vandalism in the area), or he should have "foreseen" the possibility (perhaps because it had happened before). He made a "finding of fact" against you.
Successful appeals on the second ground - misconduct by the Judge - are very rare. The Judge has a wide discretion in how he runs the arbitration. Some Judges conduct a mini-trial with cross- examination; others ask all the questions and some have been accused of being quite abrupt in shutting people up. Others have been accused of shouting down someone who will not shut up! According to some recent appeal decisions, all of this is fair enough in what is supposed to be a "rough and ready" alternative to a full trial.
If you are thinking of accusing the Judge of "misconduct" in an appeal, take advise first. In the appeal notice you must specify exactly what misconduct you are complaining about.
One thing that certainly will not work is to say that the Judge must have misconducted himself because he decided against you!
Also remember that the "no costs in arbitrations" rule does not apply to appeals. If you appeal unsuccessfully, you are likely to be ordered to pay the other party's costs.
Frankly, unless there was something blatantly and unquestionably wrong about the Judge's decision, or his conduct, you are best advised not to appeal.
Enforcement
Once you have your judgment, the Defendant must pay you
directly within the time specified by the Judge - often 28 days.
If he does not, there a re various ways that you can force him to pay. There are enough of them to double the size of this note. The Court staff will tell you what they are, and help you apply the one you choose to use. They cannot advise on you on which one to pick.
Remember that starting enforcement proceedings involves paying a fee. If you enforce the judgment successfully you will get the fee back, but not if you don't. If the Defendant does not seem to have any money or income, and appears to have several unpaid judgments against him, is there any point sending good money after bad?
If you are the one ordered to pay, remember that the award will be placed on the Register of County Court Judgments if enforcement steps are taken or if you ask the court to make an instalment order. This entry would almost certainly crop up in any future enquiry about you to a credit reference agency.
This note is intended as a general guide to the making (or defending) of a
small claim. It is not definitive, and is intended only to point you in the
right direction. If you have any specific questions, by all means ask them on
LIX. However, you may best to ask your CAB or a solicitor.
G.J. Edwards
Feb 1996
This is a general guide to assist people in presenting their own
cases in County Court small claims. If you think that there any glaring
omissions or errors, or any part which is confusing please e-mail me -
arifax@cix.compulink.co.uk This document may be copied and distributed freely in
whole or in part provided that: