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Guide to resolving your dispute in 6 clear steps - Part 3

Instructions for expert  
1. Name of expert  
2. Date of inspection  
3. Details of problem (in plain English)  
4. The most likely cause of the problem

Here you hope the expert will not say that you have not been using the item properly or that the problem is just down to old age / normal wear and tear.
5. Recommended solution  
6. The cost of repairing/putting right/completing the job

This will be the money you claim
7. Details of any other damage or expenses caused as a direct result

If the faulty item or bad workmanship has caused any other damage, then the expert can say if there is a direct link.
8. Qualifications and experience of expert  
9. Statement of truth: The opinions I have expressed represent my true and complete professional opinions on the matters to which they refer.  
10.Signature  

This type of expert’s  letter can be very convincing both to your opponent and also (if it gets that far) to the judge. You should give details of the expert letter or report when you complete your Directions Questionnaire. In most small claims cases the judge will advise the expert does not need to come to the hearing.

Directions Questionnaire

Where you are fighting on you, the court will send you a Directions Questionnaire to complete. The other side will also be sent one. Unless you are exempt from court fees, on claims over £1,500 you will have a further court fee to pay.

Dispute value                  Court Fee

£300.01 - £1,500                £0

£1,500.01 - £10,000          £40

In the form you will be asked to list any witnesses you wish to bring to the hearing. You will also be asked about any expert evidence you want to be able to rely on.

The form will also ask you if you have any special needs that the court will need to cater for, so that you to have a fair hearing. Examples include wheelchair access or an interpreter.

The judge will guide you through the process at the hearing. However, if you do not feel confident about representing yourself you can use the form to name someone else to do this for you  - but you would still need to be present. This can be a friend or relative. It can be a solicitor (but you would have to pay them for their time and would not get this money back even if you win)

The judge will then review the forms and make decisions about any steps needed before a hearing. You should read the paperwork sent by the court and make sure you follow the instructions.

Typically a court date will be given and you will be told to send copies of all documents you are relying on to the other side and to the court by a specified date.

  • Sometimes, with straightforward disputes, the judge will offer to deal with the dispute based on the papers and without a hearing. You do not have to agree with this.
  • The instructions will explain how to ask the court to change the hearing date (for a fee) where you have good reasons – such as being abroad.
  • You can also write in to ask for the hearing to happen without you. This might be because the travel costs of attending cannot be justified given the small amount of the dispute. This request must be sent to both the court and your opponent more than 7 days before the hearing.
 

Your preparation

  • Check you have followed all instructions from the court
  • You should review all your paperwork. Please make sure you have re-read your letter of complaint and all other paperwork you have sent setting out your position. It is not a memory test but you will be asked questions and you do not want to contradict statements you have made before.
  • Witnesses: If you have asked any witnesses to attend the hearing when you completed the Directions Questionnaire, then give them a call to make sure they have received instructions form the court confirming the time and place they should attend.
  • Summary of case: Write out a short summary of the key points you would like to make at the hearing. This will help you make best use of the limited time available. A good tactic is to also write down your 2 or 3 strongest or main points. Get them very short and to the point.
  • Dealing with your opponent: Read what your opponent has said about your claim. You are likely to be asked to comment on this by the judge. Therefore prepare in advance.   You should work out how you will respond to these points.
  • Have an up to date calculation of what you are claiming (with small claims there are limits on your costs relating to the hearing):
  • The amount still in dispute
  • All court fees you have paid
  • Fixed costs towards what you paid for legal advice (take your solicitor’s invoice with you)
  • Your loss of earnings for taking a day off work to attend the court hearing (a letter from your employer)
  • Travel to the hearing (even reasonable overnight expenses may be allowed in some cases where it was a long way to go and the judge thinks it reasonable for you to have travelled the day before)
  • Spare copies: Make sure you have a spare copy of any document that you want to use at the hearing that you have not already sent in (to give to the judge and other side).
  • Evidence: Most photographs, receipts, statements and any expert letters or reports will already have been sent to the court and the other side. However you may have actual evidence you can take with you – such as damaged clothing or the faulty product itself. This depends on what is practical in the circumstances and photos may be fine.
  • Plan what you’re going to wear in advance – you don’t want to be in a panic on the day. See dress code below.
  • Plan your travel arrangements in advance – including the location of the court, the nearest parking and having money to pay any parking meter. Often the court will be one that is local to your opponent not you – so the area may be unfamiliar.

Dress code:

The Judge will be wearing a suit, not a formal gown and wig. 

To create a good impression, it is recommended that you wear smart clothes such as a shirt and jacket.

There is no requirement to wear a suit. For men it is not essential that you wear a tie. However these can help create a positive impression with the judge as it makes it clear that you respect the court and are taking the process seriously.

Arriving at Court:

Time: The court will give you a start time. Try and allow extra time for traffic delays and parking.  Also many courts have security on entry which (like airports) can cause delays at busy times. Allowing extra time should mean that you do not arrive feeling “flustered”

Court: When arriving at the court complex there is likely to be a desk with a person (called an “usher”) whose role is to help people like you find the room being used for your hearing.

To ask the usher at the entrance to the courts, which court room, is being used for your hearing you will need to be able to give the name of both you and your opponent and sometimes also the claim number.

Waiting: There is likely to be a sitting area close to the court room where you can wait.

Unfortunately there will often be a fair bit of waiting.

The usher will tell you when the judge is ready for you to go in.

If you have a witness with you and you want to discuss the case – remember your opponent is also likely to be sitting close by and may be able to overhear. Often there are private waiting rooms – you can ask the usher if you can speak with your witness there.

When told the judge is ready you can take everyone with you and the judge will decide who can stay.

Court room

Usually small claims cases will be heard in the judge’s private meeting room – not a full court room. This is meant to be a relaxed informal process – not like trials you see on tv.

The judge will behind a desk.

You and your opponent will be invited to sit in front of him or her.

The judge is likely to go out of his or her way to make you and your opponent feel at ease, as you are both likely to be nervous. The judge knows you will not be familiar with court processes and is there to help you.

  • If you have brought people with you for support (perhaps a friend or your other half), the judge is likely to let them go in with you – but unless they are also a witness or are there to represent you, they will not be able to answer questions on your behalf.
  • Witnesses will also be allowed to come into the courtroom with you. There are usually plenty of chairs. The judge should know how many to expect from your Directions Questionnaire.
  • Expert witnesses such as engineer are usually allowed to sit in the court room throughout. However the Directions you received from the judge will be clear as to whether you are allowed to bring the expert to court. Judges often prefer to rely just on their written reports rather than live evidence in small claims cases.

The hearing itself is informal in a private room. The judge will read the paperwork both sides have provided and then will give each of you a chance to explain anything the judge has not understood. The judge is allowed to decide what the best way is of conducting your particular case fairly in the limited time available. The judge is likely to ask both sides questions about their case.

The judge will then make a decision based on the evidence. He or she might order that certain actions happen (such as making a payment) with a specified amount of time or that one side stops doing something.

The judge will give reasons for the decision reached. You might want to write these down. The decision (but not the reasons) will then get written up by the court in a formal court order that will be sent to you.

If you’re the claimant and you lose

  • If you lose and the judge finds for your opponent, then:
  • Contain your disappointment and don’t lose your temper with the other side or the judge – or you might face a financial penalty. It is far better to accept the decision with good grace and leave with your dignity intact.
  • Simply keep your response to something like “ I am disappointed but thank you for your time”
  • You will not get back the court fees or your other expenses.
  • You may be asked to pay a small contribution (but sometimes nothing) towards your opponent’s costs of defending the claim you brought.
  • However if  the judge thinks that you have behaved unreasonably in the way you have brought the claim you may be asked to pay more of their costs.
  • If you feel that you have good reasons, you can appeal against the judge’s decision:
  • You must apply within 21 days and the court will decide if your reasons come within the limited rules for bringing an appeal.
  • This would only be if the judge made a mistake in applying the law or there was a serious irregularity in the proceedings. It is not enough just because the judge preferred your opponent’s evidence to yours – a judge is usually permitted to reach that type of conclusion.
  •  

The final stage is that you receive your compensation or the other remedy applicable to your dispute (such as repairs or that the other party stops doing the thing you complained of). 

Where there is an agreement between you and your opponent this is legally binding on you both:

  • Where you reached an agreement by negotiation you should have a written letter or email that records what you have agreed.
  • If your case settled by mediation the process ends with both sides signing a binding agreement.
  • If your case went to a hearing and the judge made a decision – you will be sent a court order recording the decision and what must happen by a specified date.

Then if either side then does not comply, the court can be asked to enforce the agreement or court order. This is a bit of a minefield and there are many tactics to consider.

Help with enforcing judgment

Where there is already a court order this called enforcement proceedings. The main options are summarised below. If this becomes necessary we offer a £99 Ask the Legal Expert service for discussing your particular situation, your options, the tactics and the best steps to take.

Enforcement proceedings
You can ask the court for any of the following:

Sell their property to raise the money – “warrant of execution”:  This is useful where you know your opponent owns property that would cover the amount you are owed. If the judgment is payable by instalments, it is only the instalments which have been missed can be included in the application, not the full amount due to you.

You apply to the court (complete a form) to ask for the court’s bailiffs to be given authority to seize goods from your opponent’s home or business to sell at auction. You have to pay a fee to pay, which will be added to what is already owed. 

To stand the best chance of success check out the opponent’s address. This is particularly important with businesses – as a registered address may just be a postal address and not where the business has any property that can be seized.

  • The bailiffs will usually send a 7 day letter – giving them 7 days to pay up 
  • If they don't pay, then the bailiffs will call at the address given.
  • Bailiffs can only take goods that belong to the opponent or are that they own jointly with someone else. 
  • They can't take items needed for their job or business. Nor can they seize clothing, bedding, furniture or household equipment and provisions which are necessary for satisfying basic domestic needs.
  • On the first visit the bailiff will usually take ‘walking possession’ by placing a sticker on the items and confirm that unless the debt is paid they will return to take them.
  • The opponent can make an offer of payment and request that the warrant is "suspended" 
  • If you don't agree that the offer is reasonable you can reject the request and a hearing will be fixed for a judge to decide what is reasonable in the circumstances. 
  • If the items are seized and auctioned you then get the money you are due from the proceeds of the auction.

Get employer to deduct money from wages – “attachment of earnings order”: here you apply to the court  (again complete a form and pay a fee that is added to what you are owed) for a court order that your opponent’s employer defendant's employer  deducts a certain amount from the their earnings and send it to a court collection office. This money is then sent to you. 

This only applies if your opponent was an individual who you know is in paid employment and receiving a decent income. If they are on a low wage the court will not accept your application. Tis also does not apply if your opponent is in one of the armed forces or is a merchant seaman.

  • When you apply the court will tell your opponent either to pay all the money owed or to fill in a form giving information about their income and outgoings, called a "statement of means". 
  • If they don’t send back the form, the court will try to contact him or her; it could even issue an arrest warrant. 
  • A court officer will decide how much the defendant can afford to pay.
  • You can apply for a judge to reconsider the fair amount
  • They have the right to agree to make the regular payments direct – so their employer is not contacted.

Freeze bank account – “third party debt order”: Here you can apply to court (again complete a form and pay a fee that is added to what you are owed) for an order that freezes money held in your opponent’s bank account. However you would need to know their bank details. It cannot be a joint bank account with someone else.

  • The court will make an interim third party debt order. Your opponent is not notified.
  • The bank is ordered to freeze their account.
  • This only applies to money in the account at that point it is frozen – not money paid in afterwards
  • Your opponent has the right to apply for a "hardship payment order" on the grounds that they can't meet day-to-day living costs as a result of their cash being frozen. 
  • Unless your opponent is successful, the money you’re owed is then paid to you.

Take a slice of their property – “charging order”: This is worth considering when you know your opponent owns property (or investments). It is a longer process as you will only get what you are due when your opponent sells that property – and only then if the sale raises enough after paying off any mortgage or other charges.
•    Your opponent is not notified in advance of your application.
•    If the court agrees, a charging order is registered at the land registry against their property. It is like a mortgage.
•    This means it cannot be sold without you being notified of the sale. 
•    Most buyers would insist you are paid off before they’d buy.
•    You may be able to ask the court for an order to force a sale – called an "order for sale".
•    If an order for sale is made by the court then they are given a chance  to pay you, failing which the Court will order the sale of the property – so that you are paid.  
•    However the court will not make this order lightly where this is the opponent’s home. The court will consider the needs of those living in the property.  The Courts are reluctant to make people homeless.  The Court can a suspend Order until children living in the property reached the age of 18 years. 

Threaten to make them bankrupt: If the amount you are owed is more than £750, you can also apply to make your opponent bankrupt using a "bankruptcy petition" (individuals) or winding up proceedings (companies).

The court can make someone bankrupt or wind up company if they have failed to pay their debts.  It is a complex process. It is relatively expensive. These are just the main steps.  Taking legal advice is strongly recommended before following this course of action.

  • If the person who has not paid you under the court order and owes you more than £750, then you can serve a statutory demand on them.  This must be personally served (physically handed to them).
  • They then have 21 days to pay the debt in full.  
  • If they don’t then you can apply for their bankruptcy. With companies you can go straight to this stage but may prefer to use the statutory demand stage to put pressure on them to pay up.
  • The Court will arrange a hearing to consider whether or not to make them bankrupt (or wind up the company)  Both you and your opponent should attend this hearing.
  • If the threat does not work and you decide to go through with this process you may still not get paid everything you are due. There may be others owed money, who legally have the right to be paid first. Then anything that is left is shared between those who are also entitled to be paid at the same time as you.

Disclaimer: This guide is provided for information purposes only.  We have done our best to ensure that the information contained in this guide is correct as of 04.02.2014. It applies only to England and Wales. However, the guide has no legal force and the information may become inaccurate over time, due to changes in the law. It is not possible to cover every situation or point in this type of guide and some of the information is over-simplified. The information in this guide does not constitute legal advice and we will not be liable to you if you rely on this information. Before you take any action, you should find out how the law applies to you and your particular situation by taking legal advice as soon as possible (to avoid any deadlines that may apply). Please get in touch as we offer a range of affordable services and options. 

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