Dispute Resolution
Computer Expert Evidence

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 Civil Procedure 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 Arbitration 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 assistance 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 Application 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.

"A Brief 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.

The forms.

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.

Legal advice.

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

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) is stronger evidence 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 facts will.

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.


Your case.

Think of your case like the game of consequences.

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.

The Dispute 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 form.


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 Application Notice 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 clarity.


If you wish to ask the court to do or not do something you need to make an Application. Use an Application 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.