Money Claims Online - Caveat emptor?
Have you got an outstanding debt owed to you? Are you looking into starting your own small claim to get the money back? Hold that thought.
Of course, from a lawyer, this is going to seem a pretty blatant attempt to discourage you from using your own resources and, instead, use someone who knows the system and will charge you accordingly. If you’ve fallen out with someone you do business with, and the relationship is well beyond fixing, why not see them in court?
During recent years, it has become more and more accessible to anyone with the internet and the court fee to start a claim. With the newer developments of the civil procedure rules, a claim issued in the small claims track can now value up to £10,000. As a general rule, a small claim will not result in paying lawyer’s fees to another party - at the most fixed costs (an amount specified by the court and proportionate to the claim) will be payable - and it is easy to see why this appeals. Not only can you issue a claim yourself avoiding legal fees, but even if you lose, you stand only to pay a fixed (generally affordable) sum in legal costs.
The intention to allow people to bring their own claims and thus open up the courts of justice to the public is an admirable one, however, it is worth mentioning (perhaps at risk of exaggeration) that the road to hell is paved with good intentions. A claim being issued does not result in it being paid, and a court judgment can very often be only halfway down the road to recovery. To get such a judgment, there must be a hearing or the person against whom the claim is being made must ignore the claim completely. Just because you hear nothing from the other party, doesn’t necessarily mean that they have ignored it, they may never have received it and so, the judgment you proudly hold in your hand, can be snatched back from you. Strict rules of how you should serve a document will prevent this, something that your lawyer will know only too well.
If a response is forthcoming from the other party (the defendant at this point), the next stage will be allocation. This is a point where the parties are required to tell the court the practical elements of a potential hearing, number of witnesses, where such a hearing should be. Another fee is required to be paid by you at this point, if you don’t pay it, your claim is struck out. In the simplest of cases, documents will then need to be provided to the court and witness statements shall need to be drafted. A witness statement forms a large part of your evidence and should be drafted chronologically, ideally containing little opinion and a statement of truth (not just a signature and date), something your lawyer will be able to do very well.
That is not to say that issuing a claim in the small claims track will proceed down such a route. If you are chasing an unpaid invoice for £9,000 as a result of a contract for say, over £50,000, you could find yourself on the end of a defence including a counterclaim for well over £10,000. Thus, when your claim gets allocated by the court it goes into fast track where generally, if you lose, you pay the other side’s reasonable costs.
Of course, during this process you will be saving the costs of a lawyer and the court does offer a free small claims mediation service, but you will have to put in the time if you want it to come right. Simply issuing a claim will not be enough, in all but the simplest of cases, to produce a positive result. Spending time on dealing with the matter must also be well spent, no amount of Google will draft your witness statement to give it maximum effect.
Even at court times have changed. In the past, a litigant in person stood a chance of invoking the sympathy of the court to ensure that all parties were aware of the procedures and rules. Nowadays, as they become more and more commonplace, the sympathy has waned. With both parties standing as litigants in person, such sympathy cannot exist. The court actively encourages alternative dispute resolution too, and it will only be after the court recommends mediation that you will proceed to a hearing.
Ultimately, there are of course claims where issuing at court yourself are appropriate. Claims for tenancy deposits from a reluctant landlord, claims for faulty goods or poor services etc. however, your contractual dispute that happens to fall below the £10K limit may not be the one - can, worms, everywhere. The court isn’t going to have sympathy for you trying to use the court process to carry out your credit control, nor is it going to help you if you are just trying to avoid the costs of a lawyer.
This is not intended to discourage those seeking a quick and effective result, but more to provoke thought before doing so. It’s a lot of money to risk trying to claim yourself, if it’s not, why not instruct solicitors anyway. Instructing a solicitor means that you have the best chance of seeing some of that cash, if it’s not worth it or the case isn’t strong enough, your lawyer will tell you and suggest alternatives. Even seeking advice as to how to issue a claim yourself is prudent and usually recommended by the court. To instruct a solicitor to get you out of a mess is going to be more expensive and less effective than a powerful stroke that could have been made in the first place. You wouldn’t pilot your own Ryanair flight to Ibiza would you? Although, these days, that may cost you extra anyway.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.