Words of Wisdom

 

Life is unpredictable.

In fact, the only thing that you can predict, is that the unexpected can happen at any moment.  Like coming downstairs and finding that your teenage child, having used up the last of the milk, didn’t put the empty carton back in the fridge but actually threw it away AND popped next door to buy some more.

As far as I know, he didn’t do it because he wants anything, but even that is unpredictable.  Watch this space.

Law is also unpredictable.  You never know what your client is going to do, or the other side, or the courts or even third parties like experts and witnesses.  No matter how hard you work and how well you plan, it is still possible for good claims to fail and bad defences to succeed.  Nevertheless, many good cases do succeed and bad defences fail, provided you’ve done your preparation properly.

There is an old joke I heard about a woman asking for directions, and the man answering with the great line “well I wouldn’t start from here if I were you” and I often think that that can be applied to disputes.  Often by the time a case gets to court, it’s already been won or lost, depending on the preparation.

If you are the claimant, then making sure you have pleaded your case properly and fully, including all the correct details, even down to double checking you have issued against the right parties, can mean the difference between success and failure.

If you are the defendant, then making sure that you answer each and every point that is raised against you, fully explaining why you are not liable, might at least limit your liability, even if you can’t avoid it altogether.

On both sides, it can mean making sure you’ve got all of your documents ready and spoken to all possible witnesses, as well as organised the right kind of expert.

If you have a good solicitor, they should be able to do all of this for you – that, after all, is what you’re paying them for.

However, in claims of under £10,000, because you cannot recover your costs, you might be tempted to do the claim or defence and all the preparation yourself (with good reason) arguing that even if you don’t get it all completely right, you can explain any errors or discrepancies to the Judge.  Although the judge should work entirely on the pleaded case of the parties, in small claims, they tend to be willing to exercise some discretion with litigants in person.

Unpredictably, things may be about to change.

Under a new MoJ pilot scheme, Judges will have the ability to review small claims cases without a hearing and find against a party without that party having the chance to speak.  There will, of course, be an appeal system, but that is likely to be simply a review of the case by another, independent judge.  If that judge reaches the same conclusion that the first one did, that could be the end of the matter.

The court’s rationale is that they are struggling to keep up with demand and backlogs are getting longer and longer, and many claims are very straight forward on paper.  The aim of the piolet scheme is to see if they can short circuit a lot of the cases, particularly where oral evidence isn’t necessary.

In some respects I can see their point.  I’ve done a number of hearings and trials where the other side are not legally represented.  They can take twice as long, and are often given far more leniency than I would get, even though that then means that it’s not a level playing field.  However, if you are the litigant in person, who doesn’t know how to draft a proper claim or defence, or how to prepare papers or do witness statements, you may feel that you are disadvantaged by not having the chance to talk directly to the Judge and explain what’s happened.  Not everyone is good with written words.  Although this is only going to apply to the smaller end of the market initially (claims of under £1,000 to start with) that can still be a lot of money to some.

My advice, for what it’s worth, is to focus on your claim or defence document.  Set your claim out in numbered points and make your wording very clear.  Avoid repeating yourself or putting in any personal thoughts or feelings.  Stick to the facts.  If you are referring to documents (such as invoices or emails) then attach them to the claim form or defence as appropriate.  If all else fails, consider investing a small amount on some proper legal advice.  It might save you money in the long run.

Kleyman & Co Solicitors.  The full service law firm.  Starting from the right place.