Date 19 May 2006
This is the first of SA Law’s quarterly guides to litigation claims and procedures designed to assist you with a general understanding of the process to allow you to focus your time and resources in the relevant areas. If you have any particular types of claims or procedures in which you would appreciate such a guide please contact us with your comments.
Guide to Managing Your Small Claims
The small claims track is designed to assist litigants progress claims of a value of less than £5000 (in personal injury claims the damages for injury and in landlord and tenant repairing claims the works must not exceed £1000 with the overall value in the latter case not exceeding £2000) in a cheap and simple manner and without the need for solicitors involvement. Recent reforms to the small claims system came into force in October 2005 with a view to simplifying this system further.
1. Issue of Claim
The claim must be issued using a pro forma claim form in the County Court. Although the claim may be issued in any county court (subject to limited exceptions) it will be transferred to the Defendant’s home court where the Defendant is an individual. A fee is payable for issuing your claim on a sliding scale depending on the value of your claim. Both the pro forma claim form and information on court fees are available from the Court www.courtservice.gov.uk.
2. Service of Claim
Unless you state otherwise the Court will serve the Claim upon your defendant allowing the defendant 14 days from service to:
a) File an acknowledgment of service.
b) Make payment.
c) Admit the sums are due and seek time to pay
d) File a defence and any counterclaim
Where the defendant files an acknowledgment of service it will have 28 days from service of the claim to file its defence.
Where the Defendant fails to undertake one of these actions you are entitled to ask the Court to enter judgment on paper.
3. Defended Actions
Where a defence is filed (with or without a counterclaim) the court will send an allocation questionnaire and a copy of the defence (and counterclaim). The allocation questionnaire must be completed and returned to the Court by the specified date with the appropriate fee (currently £100). Failure to do so may result in your claim being struck out.
4. Court Directions
Upon consideration of both parties allocation questionnaire the court will provide directions to bring the matter to a final hearing. This will involve certain steps which each party must comply with by set dates, for example, providing copies of all relevant documents to the other parties involved in the case. The standard directions are for parties to exchange documents on which it intends to rely 14 days before the hearing. The types of documents the court requires to resolve various disputes are set out at Appendix A of the practice direction to Part 27 of the Civil Procedure Rules which you will find at www.dca.gov.uk.
Special directions may be given. Witness statements may be required and the court will consider whether the parties have legal representation and the complexity of the issues involved. Expert evidence can only be given with the court’s permission. You may ask the court to give specific directions.
5. Determination of the Dispute
The Court may determine the dispute without a hearing where both parties consent. This is only likely to be the case where the dispute can be decided on the basis of the documents or where the parties attendance would be disproportionately expensive.
The more usual method for determining the dispute is by the parties attending a hearing and giving oral evidence for the judge to decide. Whether evidence is given on oath is at the discretion of the Judge. At least 21 days notice of the hearing will be given unless the parties consent to lesser notice. A solicitor or a barrister or a lay representative where his client is present or at the court’s discretion may represent the parties.
If a party gives written notice to the court 7 days before the hearing that it does not intend to attend and files all documents with the court, the court may take into account the documents when deciding the claim. If the party making this request fails to file the documents the court may strike out the claim if the absent party is the claimant or decide the claim on the claimant’s evidence alone if the absent party is the defendant.
As the small claims system is designed for litigants to act in person the strict rules of evidence do not apply. The court will usually outline to the parties (where there is no legal representation) the procedure for the hearing and may direct questions to the parties and control the nature of the evidence given. The hearing will take place in public usually before a District Judge and will be informal in nature.
At the end of the hearing the judge will usually give his decision and make a court order as s/he sees fit. A judge may reserve his/her decision.
6. Costs
The recoverability of legal fees and costs are extremely limited on the small claims track. The following costs are usually recoverable by the winning party:
a) The court fee paid on issuing the claim and on filing the allocation questionnaire and any other court fees.
b) Where the claimant is legally represented fixed costs allowed on the issue of the claim ranging from £50 to £100 depending on the value of the claim.
The court will also consider:
c) reasonable travelling expenses of the party/witness
d) loss of earnings of a party or witness (£50 per day maximum)
e) experts fees (£200 per day maximum)
f) additional legal fees where the other party has behaved unreasonably.
Legal Representation
Whilst it may not be cost effective to instruct solicitors for all small claims matters for higher value small claims advice and assistance in preparation of the claim and/or representation at the hearing may still be proportionate.
For more information please contact Lynsey Newman or Nathanael Young on 01727 798092 or by email at lynsey.wilkins@salaw.com or nathaneal.young@salaw.com.
© SA Law 2006
Every care is taken in the preparation of our articles. However, no responsibility is accepted as being owed to any person or organisation who acts on the basis of information contained in them. You should obtain specific advice in respect of individual cases.