using the small claims system
This article is reproduced with the kind permission of Martin Brignall and The Guardian newspaper. All rights are reserved © 2006.
Over the past few months Guardian Money has been advising air passengers refused compensation following cancelled flight to take the airline to the small claims court. Several have been successful - one, David Harbord from Oxford even took on the travel giant Thomas Cook's barristers and won - and there are lots of others currently pending. With this in mind, Guardian Money takes a look at how to bring a claim.
The small claims "track", as it is known, is not just for those who have been watching too much Rumpole of the Bailey - it's there for anyone who has been sold faulty goods or workmanship or is owed money by a person or company. It also deals with a number of disputes between landlords and tenants.
Small claims are generally for sums (including interest) of up to £5,000, or up to £1,000 for personal injury claims. Scotland and Northern Ireland have separate schemes with limits of £750 and £2,000 respectively. The fact that consumers can bring a claim against an organisation without the fear of having huge costs awarded against them, underlies the whole process.
Although most people know it as the small claims court, the cases are actually heard in small rooms in County Courts. In 2004 there were more than 46,000 small claims. The process typically takes six months to complete - if it ends up with a hearing. Often it is quicker. Many cases are undefended: big companies will often not show up when they know they are in the wrong.
It should be noted at the start that a successful small claim is no guarantee that you will get the money you are owed. Unless there is a reasonable chance that a person or company will pay up, there is little point in bringing an action. While this is obviously not an issue if you take on a low-cost airline, it could be if you win against an individual who subsequently disappears.
- Before you even bring the case you have to give the other party a reasonable time to pay up or address your complaint. If your TV breaks down and the company refuses to repair it, you have to set a (reasonable) deadline for it to sort it out - and warn it that you will bring a small claim if it fails to do so. The court will not deal with a case unless this has happened.
- Assuming you have exhausted that route, you next need to establish that you have a claim in law. Citizens Advice at www.adviceguide.org.uk will be able to advise whether they think your case will succeed - as will a host of other consumer bodies. Your solicitor will also do so but will likely charge a consultation fee.
- You start a claim by filling in a form available from local courts, or from Her Majesty's Courts Service website: www.hmcourts-service.gov.uk. Claims for a fixed amount of money can be issued online at www.moneyclaim.gov.uk. Court staff can advise on how to fill in the form but cannot offer legal advice. Court fees for online claims must be paid by credit or debit card.
- The fees are on a sliding scale ranging from £30 to £120, depending on how much you are claiming. If your claim is for more than £1,500 you will have to pay a further fee of £100 if your opponent files a defence. You may be able to claim interest. Fees are often waived for those on very low incomes or certain benefits.
- When the court has decided to allocate the case to the small claims track, the parties will be sent a notice of allocation. This says what they have to do to prepare for the final hearing. The parties may be told to send copies of all the documents they intend to use to the court and to the other party at least 14 days before the hearing. You must follow these directions. If you don't, the case could be postponed and you could have to pay all the costs.
- Having looked at the documents the judge may decide to hold a preliminary hearing or that the case can be decided without a hearing. If it goes to a hearing, take along all the evidence. It is not uncommon for applicants to take in a broken TV. The production of the evidence is crucial, although the time allocated to speak or for cross-examination is limited. A lay representative has the right to speak on behalf of a party at the final hearing.
- You can call an expert witness with the prior permission of the court, but will only be able to claim the first £200 of his or her costs. Other claimable costs if you win are up to £50 per day for loss of earnings for both you and any witnesses plus any travel or overnight expenses.
- At the end of the hearing, the judge will give the judgment and the reasons for it, usually orally. The judge may give them later either in writing or at a later hearing. If you lose you can only appeal with the judge's permission.
- If you win your case, as a claimant you will get the court fees back as well as the claim, and expenses and, in some cases, statutory interest. If you lose, you will not get the fees back.
- One tactic increasingly being used by large companies to fend off actions is to threaten the person bringing them with costs. While the whole point of the small claims procedure is to allow individuals to bring cases without such a fear, the judge can award costs if they feel the case is brought in a "frivolous" or "vexatious" manner.
It is up to the judge to decide whether a case has been brought in such a way. If you are confident that your case is reasonable, don't be bullied by organisations threatening you with the cost of their barristers, etc. Even if you lose you will not have to pay these costs as long as your claim was reasonable.
Small fry, big change
John Baldwin, head of the University of Birmingham's law school and an expert on the small claims procedure, describes its recent increased use as the "silent revolution that has dominated the justice system".
He says the process generally works well. "Judges have become pretty skilled at teasing the correct information out of those appearing, who are often are making their first appearance in a law court. Most of the people I have interviewed and who have been through the process appear happy with the outcome."
He says individuals should not be afraid to take on big companies, even if the companies show up with a big legal team.
"The whole process has been designed to favour individuals and I think judges do a good job of balancing up the odds in such circumstances. Those new to the process would be surprised at how informal it can be. Both parties usually sit round a table and most cases are heard relatively quickly," he says.
Simon Madden, deputy manager at Reading court, agrees the process helps individuals but warns them to seek advice before they bring a claim. He is working on a pilot project to offer advice to prospective claimants, and has advised more than 300 claimants in nine months.
"Although the process is informal, it should be treated seriously. Most actions fall down because the applicant fails to bring the right piece of evidence or they fail to follow the correct court procedures. By getting advice it will help establish whether you have the right evidence. Do you need to bring a witness along or will a witness statement suffice?
"You need to be sure of your case before you bring an action. Citizens Advice or other consumer groups will be able to advise."