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06 November 2013

Small claims: perfectly formed?

All issued and defended claims with a financial value of no more than £10,000 issued after 1 April 2013 in England and Wales will now be dealt with on the Small Claims Track save for a few exceptions.

Claims dealt with in the small claims track are often considered to be less procedurally formal as the track is designed to be seen as open and accessible to litigants in person.  Parties are not burdened by the "normal" cost consequences requiring the losing party to foot the costs bill, unless exceptional circumstances apply, nor are parties bound by the otherwise strict rules of evidence when making their case. This, combined with the speed (small claims are often dealt with faster) and judges often taking a more inquisitorial role in the process, can sometimes make the "small" track an appealing option. However, it does not make your task any less burdensome or the outcome any less significant.

Whether or not you have legal representation at the hearing, you will have to show before a District Judge that you have both a valid legal claim and that, on the balance of probabilities, your version of events in that case are correct.  This may involve showing that goods and services were or were not performed and delivered, that a defect or a contract did or did not exist, or that payment is or is not due. Clearly the use of evidence will be important in demonstrating your claim, especially given the timetabling time constraints often applied to court hearings. The reality is that often much depends on how effectively your case is presented. 

Consequently, it is still very important to be fully prepared and to have your wits about you when bringing or defending a claim on this basis and, for this reason, it is often sensible to seek initial advice on how best to bring your claim, or indeed, to have representation at the hearing itself.

It is important to consider that a "small" claim is not without upfront costs. Court fees can vary from £15 to £245 depending on a claim's value, and if it is more than £1,500 and a defence is filed a further (£40) payment is required at case management stage. If the case goes to trial a further fee of £25 to £325 will also be payable depending on the value of the claim.  Whilst there can be exceptions to paying these fees they are rare and depend on individual financial circumstances.

In addition, whilst it is generally the case that legal costs are not recoverable in "small" claims irrespective of the outcome there are some limited exceptions and, although these are not common and not normally of the order of costs that can be incurred in a multi-track claim, they are nonetheless important and can add-up. For example fixed issue costs can be recovered as well as the capped costs for advice on injunctions or specific performance which is up to £260. In addition, court fees, fixed rates for loss of earnings and expert advice, as well as justifiable travel and subsidence costs can also be ordered to be paid. A further factor for consideration is that a court can order a litigant to pay further costs (regardless of whether they are represented) if they have behaved unreasonably.

Unreasonable behaviour is a broad concept and not specifically defined but it can lead to consequences both in respect of legal costs and even in some circumstances to reimbursement costs covering lost earnings. The court has broad powers here it can remove the limits otherwise used in the small claims track, potentially leading to a greater liability than some litigants might expect. Whilst such orders are unusual in the past qualifying behaviour has included pursuing or defending an unarguable position, failing to comply with court directions leading to hearing adjournment, and misbehaviour at the hearing itself. Treatment of settlement offers is also relevant as, whilst a decision to reject an offer is not in itself likely to constitute 'unreasonable behaviour', a court may consider this as part of the parties' wider conduct which may well be relevant.

What is clear it that simply because a claim is "small" does not mean it should be undertaken or argued without due or proportionate consideration. Indeed, following the increased small claims cap the requirement to seek advice or assistance is likely to become more important as more claims are now falling within this category when they would have not done so previously.

Accordingly, when bringing claims that now fall within this small track it will be important to consider the chances of your claim succeeding and aim to maximise these or even to cut your losses, perhaps by taking general advice before going ahead or, indeed, by taking further advice and arranging for an advocate to represent you at the hearing.

Given that by the time the hearing arrives you may well have invested time and costs in the process (be those court or perhaps expert fees) there is likely to be value in seeking to maximise the chances of success.  For this reason, it may well be advantageous to instruct an advocate to represent you at the hearing as, for what is likely to be a comparatively small sum that can often be agreed in advance, you may well fare considerably better.

If you have a legal enquiry or if you would like to instruct an advocate in connection with an on-going claim or hearing, please contact Simon Carroll on 01753 279037 or email disputes@bpcollins.co.uk.

Stay in touch

Phone: +44 (0) 1753 889995

Email: enquiries@bpcollins.co.uk

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