Starting a claim in Court
This note is intended for "litigants in person", as the court system
refers to individuals who are taking their own cases on a DIY basis. Limited
companies have to be represented by lawyers - unless their opponents and the
court agree - and they should therefore regard these notes as background
information. Note that there is a steep learning curve but you are not studying
for the sake of acquiring knowledge. The incentive to take your case forward
will make what would otherwise be hard work interesting and rewarding. The words
of warning are not to make assumptions or jump to conclusions about the
operation of the legal system. The legal system operates according to a set of
rules, not common sense, practicality or ease of use, just a lot of rules.
At the same time it has to be said that no one understands or follows all the
rules in their entirety, and that includes lawyers of all types as well as court
officials and judges. Although all these people will readily follow the rules if
they are pointed out to them expect them each to put a different interpretation
on what the words mean. In strictness the
Rules (CPR) and the Practice Directions (PD) made under them need to be
followed or the litigants are in peril of loosing their case by tripping up on a
procedural point.There are a lot of Court Offices (see the telephone directory
under Courts for your local one) and being staffed by people naturally enough
each has their own way of doing things. As always in life don't fight the
system, use it to your advantage.
The Civil Procedure Rules do not apply to an arbitration under an arbitration
agreement. While the parties in an arbitration under an arbitration agreement
can more or less make up their own rules this has to be by agreement, which does
not very usually occur between disputing parties, and so the defaults under the
Act 1996 are usually followed.
Size of claim.
All cases in the County Court start the same way, those under £5000
automatically go on the Small Claims Track to be heard by a District Judge in an
informal way. Claims over £5000 go initially to a District Judge for
arrangements to be made and then before a Judge in the Multi Track. All this
will take place at the same Court location. Note though that a case started
elsewhere may well be transferred to a Court location convenient to the
Defendant. This transfer is for the benefit of defendants in debt collection
actions run by large organisations on a national basis.
As this note is written for DIY litigants the thinking behind it is Small
Claims Track based. Little or no costs can be recovered against you in the Small
Claims Track so your risk in pursuing a case is the investment of your time
reading these and other notes and working out what you need to do. There is a
considerable amount of
available on how to go about things and if you are persistent and right your
opponent will probably pay up without your ever needing to go into court at all.
Do not think that your case will go through if you do not turn up, it will not,
it will go into the large pile of cases that could, on
be resurrected. on the other hand turning up with a friend (if he knows
something about the system he is known as a Mckenzie Man) and stating your facts
(and with no evidence to go against them) the judge is going to find in your
favour "on the balance of probabilities according to the evidence but before
him" as the mantra goes. Anyone who has lost in this way can look for a reason
to get the judges decision set aside and while outside the scope of this note
that is not impossible.
Conditional Fee Agreements
A potential litigant in person who has a very good case should be able to find a
lawyer who will run the case on a Conditional Fee basis. The means that you only
pay if you win and what you pay comes out of the amount you were are awarded by
the court.The amount you pay is called a success fee and is expressed as a
percentage of what you are awarded by the court. If you lose you he will have to
pay the other side's costs but you can insure against that possibility. You do
have to find the insurance premium up front. We do not discuss conditional fee
agreements in detail here as at the time of writing they are too new for any
comments to be wholly reliable. Appreciate that if you approach a lawyer seeking
a Conditional Fee Agreement he is going to consider both the strength of your
case and the effort you are prepared to put in to help him win it for you. Your
effort will need to be largely in the case preparation set out here -so read,
mark, learn and inwardly digest all that we say before you embark on what will
be a stressful time of hard work putting your case together for the lawyers to
do their work.
There is only one set of rules (the CPR) governing the Courts so apart from
the informality of the Small Claims Track the court officials process everything
in the same way irrespective of where the case is to be heard. The Small Claims
Track is where the majority of court cases are heard.
We have tried not to duplicate assistance available elsewhere but to provide
a link to it on which our reader may click. In fact you possibly came here by
clicking through from somewhere else.
Guide to County Court Arbitrations" is a good starting point regarding the
Small Claims Court. Do not be put off by the word "Arbitration" in the title of
this guide, it does not mean what it says. For reasons only known to those that
wrote the County Court Rules the proceedings in the Small Claims Court are known
as "arbitrations" but Section 92 of the Arbitration Act 1996 makes it quite
clear that that Act does not apply to County Court Small Claims arbitrations.
For clarification we list the the several types of dispute resolution where the
term "arbitration" is used.
- Arbitration following an
arbitration agreement made effective by the
Arbitration Act 1996.
- The Hearing of a Small Claim (ie under UKP3000) in the County Court
which is referred to in the rules as an arbitration.
- Very rarely, but possible under the rules, the District Judge may not
hear a small claims court case himself but refer it to an outside
arbitrator. The agreement of the parties has to be obtained by the District
Judge if he wishes to make such a reference. If
technical issues are involved an outside arbitrator may be worth his
fee. If both you and your opponent are going to have to pay an
witness you may be saving on the costs that have to be met. Had you gone
direct to a technical arbitrator without taking out a summons first you
would have saved the court fee and not lost anything in enforceability. A
technical arbitrator would probably not expect you to have to obtain and pay
- Statutory Arbitrations are provided for in various rather specialised
Acts of Parliament where they are seen as a useful way of independently
settling ongoing commitments such as rents. We do not discuss statutory
arbitration here at all.
- The Conciliation and Arbitration Service (ACAS) is all about voluntary
conciliation and not about compulsory arbitration at all so outside the
scope of this note.
Free copies of the forms to be filled in to start proceedings in a Court and
free leaflets on procedure are available from the Court office. They will send
you a set in response to a telephone call (under Courts in the phone book).
Remember to ask for the list of fees and when it comes to it check that you are
sending the right amount (approx £50 to £100) as the court office are very
efficient at sending the whole lot back (after a frustrating few days' delay) if
they spot anything wrong.
The forms are
available on the internet. There is an
official Lord Chancellors
website that can be browsed and has links (click on Links) to a wide range
of useful information.
This site concerns itself with procedure, ie what forms to fill in, how to
prepare your case and evidence so as to establish the facts.
The process of legal thinking that leads to the judgement of a court or the
award of an arbitrator is to
- establish the facts
- apply the law to the facts in order to reach a
Lay thinking usually works the other way round. "I'll have the law on you"
without much thought as to what can be proven. The standard of proof in the
Court or before an Arbitrator is "on the balance of probabilities" as the
lawyers say, but more realistically it's your word against his. The probability
can swing in your direction if you have some written or other evidence. A copy
of a letter or a note made at the time (contemporaneous is the word lawyers use)
than anything you might say from memory to the judge or arbitrator.
The evidence will establish the facts but the law has to be borne in mind or
your facts may not be relevent to the law at all. But perhaps another set of
There is a surprising amount of free legal advice available on the Internet.
The freest places are the newsgroups and we would mention News uk.legal. Put
your legal question reasonably (see how others have done it and what response
they got) in this or one of the other newsgroups and a specialist in the subject
will probably come back with an answer. If the answer is wrong or needs
qualification then someone else will add their twopennyworth. Bear in mind that
no-one accepts responsibility for these answers.
Delia Venables maintains a website with links to many legal sites round the
world. You may have reached here from her site. Her sit is
"Legal Resources in the UK and Ireland,
maintained by Delia Venables" which lists solicitors who will give free
initial information by email or who have websites that deal with particular
legal topics as well as many other useful links.
Think of your case like the game of consequences.
- What should have happened (the contract)
- What did happen (evidence shows this)
- And the consequence was (how you were disadvantaged)
- For which you claim. (a sum of monery almost
Judges and Arbitrators are familiar with this approach and you will hear
reference to "Statements of Claim", "Particulars of Claim" as well as "Defence"
and "Counterclaims". Drafting these documents is a skilled art for which
barristers are well paid But litigants in person should have a go - the court
will be tolerant of any failings. Collectively they are known as "Pleadings", a
term that goes back to the days when you did just that - on one knee before the
King. Time has moved on but it's still the consequence of what did happen
against what should have happened that matters.
Resolution Kit contains a model set of pleadings and an action plan that can
be followed by a litigant in person.. The Dispute Resolution Kit runs from an
agreement to arbitrate under the Arbitration Act 1996 to the Arbitrator issuing
his Award. It should be clear which steps just do not occur it you have taken
your case to the court on the Small Claims Track so use the kit in a modified
Court or Arbitration.
Your opponent has to respond to a Court Claim Form or you win by default.
The same only goes for an Arbitration if there is an arbitration agreement
between you. The arbitration agreement needs to be agreed as such and recorded
in writing but does not need to be signed. Many arbitration agreements are not
signed, being included in the Terms and Conditions on the back of an invoice.
If there is an arbitration agreement but one party issues a court summons the
other party must acknowledge service of the court summons or they lose the case
by default. But if they do more than acknowledging service (ie enter a defence
to say that they contest the case) they lose their right to arbitration. To
preserve the right to arbitration make an Application to the court under Section
9 of the Arbitration Act 1996. Use an
If there is a valid arbitration agreement the court must grant a stay ie stop
the court proceedings there and then.
It is important to get the timing right if seeking a stay. What is said above
is therefore repeated by quoting the clear words of Section 9(3) of the
Arbitration Act 1996.
- "An application may not be made by a person
before taking the appropriate procedural step (if any) to acknowledge the
legal proceedings against him or after he has
taken any step in those proceedings to answer the substantive claim."
The whole of the Arbitration Act 1996 is written with such
If you wish to ask the court to do or not do something you need to make
an Application. Use an
Notice Notice that there is a difference between asking the court
office to carry out an administrative task (which you can do by letter or
even by telephone) and asking for some form of judicial action which you do
by making an Application. Address a letter to the Court Manager. Send an
Application to the Court Manager but it does not need a covering letter. In
response to an Application you will get a photocopy of your Application back
with a hearing time and date when you are to come before a judge written on
it. A copy will have been sent to all those who have said that they will
accept service (legal jargon for taking responsibility for receiving) of
such notices on behalf of all the other parties in the case. Take care when
dealing with a court office. The staff work according to their rules, they
have to, but not all court offices deal with things in exactly the same
manner. So check that what is happening is what you want to happen.
There is a fee payable on making an Application and if the fee is not
enclosed the court office will return the Application to you. The fee is per
hearing before a judge so bring up all you want at at same time.