The small claims court is part of the county court system, dealing with civil claims which are typically of low value and or often less complex than fast track or multi-track cases. With recent cuts to legal aid and an increase for the small claims value limit from £5,000 to £10,000, there has been a sharp rise in the number of claims made through the small claims court by individuals acting without solicitors, known as litigants in person.
For instance, if a person has bought a faulty car and takes the dealer to court, then if the car if worth say £5,000 then the claim will be allocated to the small claims court. However, the £10,000 is a general rule and in some cases, claims for more than £10,000 may still be heard on the small claims track or conversely claims worth less than £10,000 may be allocated to the multi-track, it really depends on the circumstances of the claim itself including the complexity of the claim. Some personal injury claims and landlord and tenant claims could be allocated to the mulit-track if the value of the claim exceeds as little as £1,000.00
Making a Claim: the Procedure
The party bringing the claim is referred to as the Claimant and the party defending the claim is known as the Defendant. Before commencing a claim, the Claimant should first attempt to settle matters with the Defendant. This may mean the parties communicating with each other to see if a resolution can be reached and this may involve the Claimant writing a letter to the Defendant warning them of their intention to commence legal proceedings should the Defendant not adequately compensate them for their loss within a stipulated timeframe, typically 7-14 days. There is also a duty on the Claimant to mitigate which means they should try and minimise the loss suffered rather than allowing things to get worse. In the above example, if the Claimant tried to sell the faulty car or to have it fixed, this would indicate a willingness to proactively mitigate their loss. If, on the other hand, the Claimant continued to use the car despite knowing it was faulty then they could be penalised for failing to mitigate.
If the Defendant ignores the Claimant’s pre-action letter then, in order to commence a claim, the Claimant will need to do the following:
- Obtain 2 claim forms from their local county court or online. Money claims for a fixed amount are commenced at the county court money claims centre or can be made online using the money claim online service which is usually quicker and cheaper in terms of the court fee (but doesn’t cover personal injury or tenant disputes with their landlord about receiving a deposit back).
- Pay the court fee – the amount depends on the value of the claim but if the Claimant has very little money, then they could be entitled to a fee remission.
- Write out a chronological version of the events that resulted in the claim. This is known as the particulars of claim and can either be included in a small box on the claim form itself of they can be set out on a separate document. If the particulars are set out separately, then they don’t have to be sent with the claim form but can be sent up to 14 days later.
- The claim form and particulars should also include evidence supporting the claim such as an agreement between the parties or invoices.
- In terms of the cost due to the Claimant, interest can also be claimed and should be stated in the claim form and particulars of claim. The method to calculate interest is set out on the claim form itself in the guidance section.
- The claim form and particulars should be signed and sent to the court with the appropriate fee and covering letter. There should be 2 of each sent – one to be filed with the court, one to be served on the defendant. The Claimant should keep copies too.
- The Defendant will have a set time to respond to the claim – usually 14 days. If the Defendant doesn’t respond then the court can award judgment in default to the Claimant but this requires the Claimant applying for this.
- If the Defendant contest the claim then the matter could proceed to a court hearing, typically at the county court nearest to the Defendant. Both parties will be sent a directions questionnaire which will need to be filled in. This assists the court in deciding how to handle to claim and if it should be allocated to the small claims court. Alternatively, the Defendant may admit fault and then there will be no hearing.
- Before a hearing, both parties should seek to obtain evidence to support their argument – this may involve an expert opinion such as a medical report, letters etc or witness statements etc. Such information should be sent to the court before a hearing too.
- At all times, both parties should seek to resolve the matter without a court hearing using methods such as mediation. There is a court’s small claims mediation service to assist parties who are willing to mediate. Not attempting to reach settlement out of court can result in the judge penalising either or both parties.
- The claim should be brought within the limitation period which is the period of time that has elapsed since the act that gave rise to the claim occurred. This varies depending on the type of claim, for instance it can be 6 years from the date of a contract which is breached or 3 years from a personal injury accident. However, the exact date from when the loss arises can be more complicated than this as it could be the date that an event occurred or the date that the Claimant became aware of it.
Making a Claim: Costs
In most small claims cases, there will not be a costs order made against the losing party. This means that, when either party wins their case, they may still have to pay their solicitor’s legal costs out of the money paid to them by the losing party. It is for this reason, as well as the disproportionate value of legal fees compared to typical damages recovered that, many Claimants act as litigants in person.
However, the courts are currently overloaded with claims made by litigants in person and the potential for errors and delays is greater when solicitors are not instructed. Should you wish to discuss a potential claim, whether you are a Claimant or Defendant, please contact one of our litigation team who have a lot of experience in dealing with small claims and would be happy to assist you.
This article is for general information only and does not constitute specific advice. You should not rely on the information in this article. Fiona Bruce Solicitors recommends that you seek our specific advice if you wish to rely on the any part of this article. Whilst Fiona Bruce Solicitors makes every effort to ensure that the article is accurate, Fiona Bruce Solicitors excludes all liability for claim, loss, demands or damages of any kind whatsoever (whether such claims, loss, demands or damages were foreseeable, known or otherwise) arising out of or in connection with the use of this article or any other information contained on this website. Any information provided only applies to England and Wales.