Ingenious or Idiot – you decide!

Being in law often means being creative.

Finding ways of putting your client’s claim or defence forward in a way that will show them in a good light, whilst still being honest and truthful (that can be a real challenge!)

Putting forward alternative options as to how to negotiate a deal or an exit strategy (dealing with divorcing parents can sometimes be like dealing with petulant children!)

Placating clients and opponents alike (how do you tell your client when you think they are being unreasonable without upsetting them!)

Honestly, it can be exhausting.

It can also, at times, be entertaining – especially when it’s the other side that are doing something they shouldn’t.

Like, for example, the time my opponent arrived at court late, rushed in to join us as we’d already started, and dived straight into his opening argument laying out all the reasons why we shouldn’t get the order we wanted, only to have the Judge point out that it was actually his application, and he should actually be laying out the reasons why he SHOULD get the order he wanted. Strangely enough, I won.

Or the time a young junior rushed in to court immediately behind her opponent, and said “good morning Sir” to the Master without looking up, only to realise that she was addressing the only female Master on the circuit – ok that one was not so funny seeing as it was me. In my defence it was only my second hearing ever and I’d only been told that I was doing the hearing five minutes before I had to leave the office.

Most recently, I came across a litigant in person who thought it would be ingenious of him to issue 8 claims against the same Defendant, each one for just under £10,000 so that they would all be heard as part of small claims, and so if he won, he’d get a good pay out, but if he lost, he wouldn’t get any costs orders against him. In theory, it sounds good, but in practice, it’s not nearly as straight forward as it sounds. People may assume that the system can be abused, and sometimes it can, but Judges are not stupid and there are procedures in place to prevent things like this happening.

For example, a court can order that the cases be amalgamated if they arise out of the same facts and matters, which would take it outside of small claims. Once that’s done, you either have to serve a notice of discontinuance or you have to fight on and take the costs consequences.

Another option is for the Defendant to make an application to have all the claims struck out as showing no reasonable prospect of success. If this is done before they are allocated to the small claims track, the Court can make costs orders.  People often assume (wrongly) that you automatically issue in small claims. This isn’t the case – you issue in County Court and then once all the papers have been submitted by both sides, a Judge decides whether it’s going to small claims or not.

Even if the cases had gone all the way through to a small claims hearing, the Court does still have a discretion to award costs. So, what might have sounded like an ingenious idea is actually going to end up being very expensive for the Claimant.

But that’s not the most surprising case of all. I was recently told about a claim where the Claimant is claiming, amongst other things, damages for pain and suffering endured by her pets. The first question one would ask is how on earth is she going to prove that the pets have suffered at all. Secondly, how is she going to prove causation – that is to say, even if she can prove that the pets are having a hard time, how is she going to prove that it’s down to the acts and omissions of the Defendants rather than the difficulties they suffer due to having an owner who thinks that a £25,000 pay out would make the animals feel better.

Law may be many things, but it’s rarely boring!

Kleyman & Co Solicitors. The full service law firm. Hope we made you smile!