• Small Claims Court

    Introduction

    When considering taking legal action against a debtor, people commonly refer to the small claims court and imagine that they will need to attend a hearing at such a place. More accurately, there is no such place as the small claims court. County Court money claims are dealt with by the County Court Money Claims Centre (an administrative ‘hub’) and may, if necessary, be allocated to a ‘track’: either the small claims track; fast track; or multi-track (dependent on the value of the claim and/or the complexity of the issues).

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    The information below applies to England and Wales:


    Understanding the terminology

    Here are some common terms you may come across:

    • ‘Claimant’ – the person or ‘party’ making the claim
    • ‘Defendant’ – the person or ‘party’ against whom the claim is being made
    • ‘Claim Form’ – the form completed by the Claimaint to initiate legal proceedings
    • ‘Service’ – the process of formally notifying either party of a claim or application
    • ‘Enforcement Proceedings’ – action taken after a judgment or order is made to attempt to force a party to comply (usually to make payment)

    Time limits for small claims

    You have certain time limits to take court action that depend on the type of action you are taking, for example, breach of contract has a time limit of six years. This is known as a ‘limitation period’.

    Make sure you are aware of the time limits before you take action. If you are unsure you should take legal advice either from our partner solicitors or independently.


    Before you apply to the court

    Before you take court action, you should try to settle the claim. If you have been unreasonable in bringing the claim you could be penalised by the court. As a practical example, you should always write to the debtor to state that you intend to issues legal proceedings if payment is not made and to give them instructions as to how much you are demanding (a ‘letter before action’ would be used for this purpose). You should also give the debtor a reasonable time in which to make payment.

    If the other party agrees, or if the court so directs, you should also consider mediation. Mediation involves submitting to an impartial mediator, to attempt to reach a solution to a problem that is mutually agreeable – without going to court. If the parties can agree terms, these terms can be detailed in a ‘consent order’; which can be enforced if a party to the consent order fails to discharge their obligations under it.


    Which court deals with your case?

    If you have a money claim, it will issued at the County Court Money Claims Centre. Other matters may be issued in your local County Court.

    The court will transfer your case to your defendant’s nearest County Court if the case is defended. Either you or the defendant can ask for the case to be transferred to a different County Court if such an application can be justified.

    County Courts contact details

    To find your nearest County Court, visit the HM Courts and Tribunals Service website – www.courttribunalfinder.service.gov.uk.


    Starting a small claim

    The starting point, as claimant, is to complete a claim form (N1) which asks for your details as well as the defendant’s, and claim amount. On the claim form, you will also need to set out the details of the claim in the ‘particulars of claim’ section, i.e. the reason why you consider that the defendant owes you money.

    You may be able to claim interest on your claim, particularly if you have a contract with the defendant that specifies an interest rate or if you are a business that has supplied goods or services to anther business under the Late Payment of Commercial Debts (Interest) Act 1998. In such cases, you should include the interest you are claiming on the claim form.

    Additional documents must be attached to the particulars of claim in some circumstances. Here’s an example; a copy of the agreement would need to be attached if the claim is based on a written agreement to purchase goods or services.

    You can also use the Money Claim Online service to start your claim if it’s for a fixed amount of money. The Money Claim Online service may be particularly suitable for those who are not used to the money claims procedure, as it helpfully ‘prompts’ the user through the various stages. The online service also allows a claimant to pay by credit or debit card.

    Once the court has received details of your claim, it will send a copy to the defendant for a response.

    It is always good to keep an extra copy of the claim for your records.

    Fees

    The fee payable on issuing the claim will depend upon the amount of the claim. To find out the cost of issuing your claim, visit the downloads section of our website and view form ‘EX50’. You will note that there is a discount for issuing the claim online using Money Claim Online.

    Fees may be waived or reduced in certain circumstances; such as:

    • you are receiving particular benefits (i.e. Income Support or income-based Jobseeker’s Allowance)
    • your annual income is low
    • you are suffering from financial hardship.

    The court can tell you how to apply for a reduction or waiver of fees, simply ask them. This is known as fee remission.

    How is the claim form served?

    The court will send the claim form to the defendant by post.

    Unless the claim was issued online, the defendant will be deemed to receive it two business days after the court posts it.

    If the defendant does not defend the case

    If the defendant accepts they owe you the money you claim and does not intend to defend the case, the matter will not be allocated to track. If the defendant admits the claim, and can pay in full, they should make payment to you directly.

    The defendant might suggest a payment arrangement if they cannot pay the amount straight away. If you are happy with the defendant’s offer and you choose to accept it, you must return a form requesting ‘judgment on admission’ to the court. If the defendant does not keep the arrangement, you may take legal action against them, forcing them to pay you.

    If you do not accept the offer made by the defendant, you must give your reasons to the court and they will decide what a reasonable arrangement is. The court will then send both you and the defendant an order for payment (‘judgment for claimant after determination’).

    You can write to the court if you are not happy with the order, giving your reasons, but you will also need to send the defendant a copy of the letter. The court will then decide what a reasonable amount for the defendant to pay is. You can take enforcement action if the defendant fails to keep to this arrangement.

    If the defendant defends the case

    If the defendant refuses to accept that they owe you the money you claim, they are defending the case. The defendant will have 14 days from the date of service (two business days after posting), to respond to the claim form and the ‘particulars of claim’.

    The defendant can send their defence to the court immediately or can request more time to put the defence together; in which case, the defendant will send an ‘acknowledgement of service’ back followed by the defence (within 14 days).

    As the claimant, you can ask for an order to be made against the defendant if they do not send a defence to the court.

    Once the court has received the defence, a directions questionnaire will be sent to you and the defendant and you will have to return it by the date stated on it. Unless it has been waived on financial grounds, you will need to pay a fee when you return the questionnaire. This information is then used by the courts to decide which track the case should be allocated to.

    Notice of allocation

    As soon as the court decides to allocate the case to the small claims court / track, you and the defendant will receive a notice of allocation, which gives you ‘directions’ (tells you what preparation is needed for the final hearing).

    The date of the hearing

    When you receive the notice of allocation, you will know the time, date and location of the hearing, as well as how much time will be dedicated to it.

    You can apply for a later date, if you are unavailable on the original date and you want to attend the hearing but you will need to write to the court to apply and pay a fee. Please note, if the court considers that your request to reschedule is not justified, it may refuse to move the hearing date.

    If you do not want to attend the court hearing for any reason, you should write to ask the court if they could deal with it in your absence; your letter must be with the court a minimum of seven days before the date of the hearing, and the defendant must receive a copy.

    In some cases, a date for a final hearing will not be set at the allocation stage. Instead:

    • the court could propose that there is no hearing required to deal with the claim, and that the case can be decided on the particulars of claim and the defence already submitted. Either party can object to this.
    • the court could hold a preliminary hearing, which might happen if special directions are required and the judge wants to personally explain them. This may happen for several reasons, including if the judge considers that there are no reasonable grounds for bringing a claim or if neither party has any real prospects of succeeding and wants to save everyone involved time and money. The preliminary hearing could affectively become the final hearing and end in a decision.

    Preparing your case

    It is important to prepare for the case. You need to be confident when presenting your case; maybe consider asking someone else you attend with you. Here are points for guidance:

    • Consider providing expert reports to support your claims (if applicable)
    • You should produce notes with chronological order to set out the background to the claim and notes to include the points you intend to make together with the evidence you are relying upon and what this proves
    • If your claim is for compensation for damaged or faulty goods, consider bringing these with you (if practical)
    • Proof of expenses (i.e. receipts), should be provided
    • Bring with you all letters, emails and other relevant materials relevant to the case
    • If a witness is going to attend, and the court has agreed to this, the witness must attend. You can serve a witness summons if necessary

    The final hearing

    If the defendant agrees, the final hearing can be held in private, otherwise, it is generally held in public. The hearing will be informal; no strict rules of evidence apply. It is for the judge to deal with the hearing in whichever way he/she considers appropriate.

    At the final hearing, a lay representative (a person who is not legally qualified) has the right to speak on behalf of you or the defendant providing that you/they are present.

    Judgment, and the reasoning, will be given at the end of the hearing.


    Can you appeal the decision?

    Yes, you can appeal the decision in the small claims court / track but only if there was a serious irregularity or if there is a possibility of a mistake as to the law or the interpretation of statute.

    Unless the court gives you a different timeframe, you have 21 days from the date of the decision to file a notice of appeal. Unless you are on a very low income, or can prove financial hardship, a fee is payable.


    Enforcing court orders

    If the defendant does not pay, even after losing the case, you will need to enforce the judgment. There are several methods of enforcing a judgment, including:

    • Attachment of earnings
    • Charging Orders against property
    • Third party debt orders (enabling a claimant to enforce against money in the defendant’s bank account or any other funds owed to the defendant by a third party)
    • Enforcement against goods of the defendant

    Burlington can help

    Burlington can help you enforce your court order as High Court Enforcement Officers. We can also help you with the process of applying for High Court enforcement, if this is the route you choose. Where you know that the defendant has assets that could be seized and sold to cover the judgment amount, High Court Enforcement will often be the best option. If we are successful, the defendant will be liable to pay our costs. If not, the costs to you will be fixed and often lower than the cost of applying for other methods of enforcement.

    We enforce judgments arising from small claims cases on a daily basis, so if you need assistance with the process please give our Client Services Team a call on 0330 900 8000.