Gary Rycroft - Small Claims
Lawyer Gary Rycroft joins us to talk about the true costs of taking a matter to small claims court, including your rights, what to do if someone makes a claim against you, and why it might not be cost effective to pursue a claim.
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GARY'S ADVICE:
"Let's start by myth busting. There's actually no physical building called small claims court. No such place exists. It is a process within the civil court system. The term is actually just the name used for a streamlined process for low value and simple cases, those that are under £10,000 in England and Wales or £5,000 in Scotland and Northern Ireland. With small claims, you can pursue things like poor service, being owed a refund, disputes with your landlord and faulty products including things like having poor work done on your property."
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Is a small claim the best way to go?
GARY'S ADVICE:
"Depending on the sector your claim relates to, there might be steps you can take before going to court.
If your complaint relates to the building sector for example, your tradesperson or company might be a member of a trusted trader scheme, and this will often require them to follow certain procedures to resolve a dispute. Other service areas will also have free alternatives to going to Court aka Ombudsman Services, including finance, energy, water, telecommunications and legal services, and there are lots of other schemes covering things like parking, airlines and vehicles too. Many of these schemes are known as ADRs, or Alternative Dispute Resolutions and these often sit with a regulator. ADR processes can include direct negotiation, mediation or arbitration, and for consumer disputes they usually mean settling a complaint with the assistance of an impartial dispute resolution body instead of a court. ADR can look at issues such as fairness and not just strict legal rules.
Some things to remember when considering court action. Firstly, make sure you check that the business or individual has the money to settle up. If not, taking your claim to the court will be a waste of time. Also, if you do win, don't forget that the money that might be awarded by the judge might not be as much as you're claiming for. You'll be awarded what you're legally entitled to, which may be less than you think your claim is worth.
Another thing to consider is the cost of bringing your case to court. The usual rule in the Civil Court is the loser pays all the legal costs, however this does not apply in the case of small claims. It is a good thing in that it means you can pursue justice without being intimidated by the risk of costs from the other side but it does mean it is not worth you paying for legal advice if it's not going to be cost effective. The exception to this is that if you bring a small claim which is not fully thought through or justified in any way and you put the other side to huge trouble and then lose, the court has a discretion to make an order for you to pay the costs that the other side has incurred if they believe that you have acted unreasonably."
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If you decide to go down the legal route, what's the procedure for making a small claim?
GARY'S ADVICE:
"Going to Court should be the last resort. Before issuing a claim send something called a "letter before action" to threaten Court Action. There is a great template for this on the Citizens Advice website that you can access . A top tip from me – take a screen shot of the Claim Form online or a photocopy of the paper version to show you mean business!
If that does not work and you do need to go to Court it differs depending where you are in the country."
England & Wales
"You start by contacting Civil Money Claims to get the ball rolling. This can either be online via gov.uk using their portal, or there's a number you can call or forms to download and send by post. After you make the claim, the details are sent to the person or business owing you money aka the ‘defendant’. They must respond to your claim by a certain date which you'll be made aware of. If they respond by paying up, then fantastic, however if they respond by disputing your claim or the amount of money they owe then you may have to attend a court hearing and the decision will end up being made by a judge."
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Scotland
"In Scotland, the small claims process is more commonly known as the 'Simple Procedure'. You still file a complaint to the court in a similar way to in England, however the case is handled by the Sheriff's Court, and they can decide to do things like refer both parties to ADR, organise a case management discussion between both parties or even decide the outcome of the case without a hearing so neither party has a chance to talk in court."
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Northern Ireland
"In Northern Ireland, the process is fairly similar to that of England and Wales, however NI offers something called an 'Enforcement of Judgments Office Search' for a fee, where you'll be able to see if the person you're claiming against already has outstanding enforcements to help you decide whether or not to pursue the claim, because even if you succeed with it, if the respondent has other judgments lodged with the Enforcement of Judgments you may find that you will not get your money back immediately, if at all."
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"In all cases, because it is a simplified procedure my top tip is you need to get ALL your evidence together & submit with your Claim Form. For a claim of this kind, it is very unusual for the Court to ask for further evidence later so throw everything at it in one go but be mindful of the Judge reading the papers so keep it relevant & succinct! Don’t ramble or make allegations you can’t back up with evidence, and it is a myth in some TV dramas and films that some ‘slam dunk’ piece of evidence can be produced at the Court Hearing - on the contrary it is a fundamental principle of justice you show your evidence to the other side & let them respond in good time."
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How much does making a small claim cost?
GARY'S ADVICE:
"Again, this differs by devolved nation."
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England & Wales
"Costs are on a sliding scale depending on how much you're asking for. They can be as little as £35 for a claim up to £300, or £455 for a claim between £5000.01 and £10,000, plus any interest that you receive on top."
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Scotland
"In Scotland, the amount you pay depends on the amount you're claiming and whether the Sheriff needs to get involved. So for anything under £300 you'll pay £20, anything over it's £112 but if there's further action that needs taking then you'll pay an additional £13 plus the Sheriff Officer's fee which you need to find out beforehand. Plus, if you want to make an appeal, that's another £65 on top."
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Northern Ireland
"In Northern Ireland, again those fees are a sliding scale depending on the value. At the lower end, you're looking at £43 for anything under £300, but it's capped at £142 for anything over £1,000."
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What about if someone makes a claim against me?
GARY'S ADVICE:
"My first tip would be, never ever ignore it! If you do, the person or business claiming could get a default judgment which means you could end up with a so-called CCJ. This means it could make it harder to borrow money in the future, including getting a credit card. Such judgements are enforceable in one way or another, so even if you think it's trivial, follow the instructions on the documentation you're sent. If you find yourself on the receiving end of one of these claims, be honest with yourself. Is it legitimate? Do they have a point? Can you save yourself a lot of time and effort by admitting to it and settling the dispute? Even if you do choose to settle, you can still do it on your terms to some degree. You might not want to pay it immediately, you might instead want to go down offering a payment plan which the courts are likely to look favourably on.
If you've reviewed everything and you're adamant that the claim is wrong, then it's time to start gathering your evidence. Prepare to show where the claimant is wrong in the clauses of the contract they've signed, or take screenshots of messages or emails that prove that you've provided the service that was asked of you. Something as straightforward as this can be enough to get something thrown out."
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USEFUL LINKS:
to access Citizen's Advice 'letter before action' template
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England & Wales
for more information on how the small claims process works
to view the court fees for small claims
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Scotland
for more information on how the small claims process (or 'simple procedure') works
to view the court fees for small claims
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Northern Ireland
for more information on how the small claims process works
to view the court fees for small claims
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