2. A Wrong

Make sure you have been genuinely wronged and you are no getting counter-claimed, for instance, building works where you are a builder chasing an unpaid invoice and maybe you not have done everything right or perhaps even caused some minor damage. Consider putting it down to experience this time if it is low value. That being said, everyone may need to go to court once in their life and so see it as an educational experience and an entrepreneurial endeavour, not a grudge war. It can be cheap and easy to just bang off an N1 claim form (once you have written to them about your complaint and have been ignored) which can cost as low as £35 for a £500 claim.

3. Get it right!

Make sure you complete the pre-action stage properly and do not go straight to issue without a paper trail and make sure you fill in N1 correctly. If you do not you could get into trouble and if you are fighting a larger organisation they could make a strike-out application for a poorly particularised claim, for example, before the case even gets designated as “small claims” and now you are facing serious legal bills to amend your claim. The law still applies! If you make sure you have carefully filled in the N1 form you should be fine; and if there is a complex issue get a little bit of legal advice just to help with that. (Or perhaps try CAB.)

4. Exceptions.

Be aware of various exceptions such as personal injury and tenants against landlords and non-money claims like possession claims. These claims may not fall into the standard small claims track even though they may be under £10,000. Online resources below will help you and this is all explained in court leaflets and the court rules (Civil Procedure Rules, CPR) if you do your research.

5. Legal advice?

Well, the system is designed to exclude lawyers but there are companies who will help you with advice but not charge you an arm and a leg to actually represent you properly. Might be worth it if you trust them and you use them judiciously in proportion to the size of the claim. But, obviously having a solicitor represent you in its entirety defeats the purpose as it will eat away your claim value. We may be a bit expensive as we tend to deal in more complex, higher-value claims but we are considering creating a special advice service of £100 an hour (approx).

Conclusion: I claimed before I was a lawyer and found it worked well. The value was £2,000. I went to his home town where the case was transferred (as is common if your opponent is not a company). I paid a small number of fees. He did not show up. I got my money! Remember, that the most important thing is paperwork and preparation. So, before you issue, you should have basically laid out exactly what the complaint is and what you want them to do to correct it and give them time to respond.

The post How do I bring my own court claim in the UK? appeared first on Court Wingman.

Let’s say you have a treasure map (a good case) but you need a skipper (the lawyer) to sail you to the treasure island. You do not know how long the journey will take and how much it will cost. The skipper tells you his day rate for his ship and his crew and you nearly faint. So you say to him,

“Is there another way? It is a lot of treasure but I cannot afford your day rate right now as I am not made of money.” And he says,

“Well, listen, I will do it for free, but once we do find the treasure I will charge you double my hourly rate, yes?”

Well, you see the sense in this but you might be worried just how big this figure is ultimately going to be. Let’s say the island is thousands of miles away in the middle of the Pacific and it may take many months to get there. His day rate could be very large, even before it is doubled.

You say to him, “Okay, I see the sense in that, but what if your fees eat up all the treasure and there’s nothing left for me? The whole exercise will be a bit pointless.”

He says to you, “Good point. Okay, look. I will limit my fees to no more than 25% of your treasure. I will ‘cap’ my fees. But you are going to have to pick up costs along the way, expenses like port fees, navigator’s costs and soldier’s pay to protect us from any natives or cannibals on the island or pirates en route.68 I am not going to pay for these. I have enough to pay for with my ship and my crew.”

You can just about afford these expenses so you agree.

He might say to you, “25% is not enough as the treasure is not big and the journey long and risky. So I want a 50% cap.”

Well, you might moan about this, but at the end of the day, it is a business partnership, a deal, in which you are getting at least something, instead of nothing, all thanks to his help. You might say to him, “35%, but only if you help me pay these expenses if cash is tight.”

And he says, “Okay, deal.”

You can see how the amount of treasure (claim value) and the riskiness of the journey (the merits of the claim) are important factors in deciding what percentage to charge.

Now I have mentioned “expenses” above. You should be aware that there is no such thing as a free lunch. You are going to have to put your hand in your pocket to pay for court fees, counsel’s advice, if needed, expert’s fees and so on. You may also have to pay for “After the Event Insurance” – insurance that protects you from having to pay a large legal bill if you lose, where your opponent is instructed by expensive lawyers, for instance. This insurance pays out the premium in a lump sum right at the end of the case if you lose and takes a part of your treasure if you win. It will have an up-front fee.

We now also have “damages-based agreements” (DBAs). These are American-style agreements, introduced in 2013.

Going back to the treasure island analogy, in this case, the skipper says to you, “Okay, I will work entirely for free, win or lose, but I want 25% of the treasure. Period.”

“What about your hourly rate?” you ask. “Aren’t you going to charge me anything for all your time and expense?”

“Forget about that”, he says. “I’ll just do it for a share of the treasure.” He then thinks for a minute, “In fact” he adds, “I will even pay all the expenses.” So you see that in the ‘no win no fee’ arrangement you have the lawyer double his hourly rate and use a cap to make sure his fees do not gobble up all the treasure, but in the case of DBAs, it is very simple – he just takes a share.

DBA sounds just like the ticket, right?

Well, yes, it works for you but does it work for the skipper? Actually, in the case of the DBA he knows that particular island and he knows the size of the treasure and it is huge. So he is happy to take a risk. Unfortunately, most cases are not like this, and this is why very few skippers are going to agree to a DBA. Unless the claim value is very large – seven figures, let’s say – the ‘no win no fee’ agreement is better for him in every way. This is because of the limitations that were brought in at the time they were introduced. Without boring you with the detail, the 2013 Act made some conditions around DBAs, which rather ham-strung the whole point of them! So that in most average cases lawyers do not touch them! The reason is that the old guard is afraid of our legal system turning into an American-style business market and so are very grudging and slow at changing the law. It will probably take further legislation to advance the process to make them fully-fledged contingency arrangements like they have in the US.

Having said all that, there is an area in which a lawyer may well consider DBAs and that is in small claims of high enough value. This is because you do not usually get your legal costs paid on that track so a CFA will not work, but a DBA with high enough value (let’s say anything over £5,000) may be worth it if they are getting at least 25%-50%. (50% is the limit, inclusive of VAT.) I offered to do one recently with a client who had already done a lot of work on his case.

You could view this as a case where the treasure is not big but the sea journey is very short, just a day’s sailing across the bay. So the skipper thinks, “Yeah, why not? I’ve not got much on at the moment and my crew are bored.”

As an alternative to both DBAs and CFAs, you could simply ask a lawyer to “cap” the amount of their legal fees. They would work on a traditional taxi meter arrangement but would agree to not go above a certain amount. For example, they would not go above £4,000 costs in any event in a £10,000 claim. Not many will, but there are enough exceptions to make it worth asking, and lawyers really do need to start moving with the times. There’s no harm in asking! If I had a client who was super-organised with a straightforward claim I might well do this type of retainer.

You might also consider bringing in a lawyer halfway. A lot of clients actually do a really great job of initially bringing the claim but then get into choppy weather and suddenly realise they need help.

In that case, a lawyer can turn things around for you – if, after the initial hourly rate work he thinks you have a strong case, he may even do a ‘no win no fee’ at that point. Or you could just use him to strengthen your case and then drop him for the trial. It’s like letting a pilot handle a bit of the journey after take off but before landing in a severe storm or fog whilst you do everything else. It does not stop you taking back the controls afterwards. You may only want to use him where it is essential.

In short, it is good as a litigant in person to have an experienced pilot to hand, who can take over the controls of the plane, if you feel it is necessary. As I said earlier, if a litigation law firm is not prepared to entertain CFAs or DBAs then you really do have to question whether they are properly equipped as a law firm to fight for their clients. If they say, “we don’t do them”, they are actually limiting your tactical options immediately and significantly, without a thought.

As litigators, they should be trying to make sure that there are as many options, or weapons, available to you as possible in order to get your claim over the wire. Their retainers can be a key weapon. Opponents facing lawyers who are on ‘no win no fee’ arrangements know that they are facing a tough opponent – they think the case is strong enough to take it on a contingency basis and will be more determined than the usual lawyers because they will not get paid until they win! A great move in some cases and a way of bringing them to the negotiating table.

To conclude, not all cases are suitable for ‘no win no fee’. Where there is not a clear pile of treasure at the end of the journey, or something that can easily be converted into money – like a property or an estate in a will – they are less likely to be of use. To find out whether or not they are suitable, a lawyer is going to have to do some work initially. Sadly, there is no such thing as a “free lunch”.

Finally, I should say that there are certain people who waste a lot of my time by phoning up and wanting to spend an hour talking about their case and saying, “This is a sure-fire winner. You need to do it on a ‘no win no fee’. It’s a great case I’ve got for you here!” That’s nonsense. Not even a lawyer with his own dispute can think in a rational and detached way about its true merits.

You cannot assess a winner unless you have spent at least a couple of hours getting to know the case papers and the client. I have learned this the hard way from having wasted a lot of time on people’s hopeless cases in the past. I have also learned that when someone tells me I should do a no win no fee because their claim is a sure-fire winner – this is a good indicator that it is a sure-fire dud.

The post The Skinny on “No Win No Fee”: The Treasure Island Analogy appeared first on Court Wingman.

Allocation: The point, after statements of case, or pleadings, have been filed or served and is the decision of the court as to whether to send the claim down the small claims, fast or multi-track. Directions Questionnaires are used to allocate. You can appeal an allocation decision and apply to re-allocate.

Alternative Dispute Resolution (ADR): The courts are big on people trying to settle disputes without going to court. This means any and all methods to achieve this, the most common of which is mediation. But, this also includes arbitration and the newly created, early neutral evaluation. It could also include a formal meeting, or even an online call or conference, whose purpose is to try and reach a settlement.

Appeal: If you do not like the judgment you get at the county court level, you can appeal. This appeal is still likely to be heard at a county court level. You have a strict time frame in which to appeal and if you think it is likely you should ask the judge after judgment for permission to appeal. If it is refused there is then a formal process to apply for leave to appeal.

Budgets: Courts are now big on parties estimating their legal costs of running a claim so that those costs can be kept proportionate and not be allowed to escalate unnecessarily. Thus, parties are required to budget what their costs are likely to be. In multi-track claims, you have to complete a Precedent H, and even in fast-track claims a budget may be required by a court order. Litigants in person are not required to produce a Precedent H, but it may, at least, be a good idea to produce a short-form budget and also do not forget to challenge the amount of your opponent’s Precedent H if they are represented by solicitors.

Civil Procedure Rules (CPR): The bible on how to run a civil claim. There are other rules for family cases. For personal injury, although they fall within the civil procedure rules, there are quite specific sections that apply to them and this can be complex. Do not forget there are also “Practice Directions” which should be read alongside the rules, to help people implement the rules properly.

Costs Schedules: Costs are a big feature of civil litigation and are more important than in other areas of law. At any and every hearing you should be prepared to argue for your costs of that particular hearing if you win and at the end of the claim, you should produce a schedule of your entire costs of the whole proceedings. Even if you lose, you might get some of your costs, for instance, if you have made an offer early on that is better than your opponent’s victory.

Conditional Fee Arrangement (“No Win no Fee”): This is basically a retainer with a solicitor where they are only paid if they actually win. In practice, you will have to find some money. For example, for the early stages when a solicitor is just reviewing your case on its merits and has not decided whether he will do no win no fee, or for disbursements like court fees, expert fees, or barristers. Many barristers, often the good ones, will not do no win no fee and so you need to budget for these additional expenses. Although in practice no win no fee means that you have to part with a percentage of your winnings, the wording of the retainer allows the solicitor to charge a “success fee” which can increase his hourly rate up to 100%. You are then liable for this uplifted part of his hourly rate upon winning. What he does though is cap this uplift at 25% of your winnings so they do not all get gobbled up by this uplift. While the other side is liable for nearly all other costs if they lose (except after the event insurance) they are not liable for the success fee uplift.

Contingency Agreement: Any arrangement with your solicitor where their fees are only paid contingent upon a successful outcome.

Damages-Based Agreement: Another form of contingency arrangement like no win no fee, but more purely taking a percentage of your winnings and nothing else. Only common in very high-value cases and sometimes for small claims at the higher end. Because they are a new invention and not really working properly at the current time, you will be lucky to find a solicitor who will do one.

Default Judgment: This usually applies where your opponent ignores your claim. You are unlikely to get it if all they have done is miss a court deadline by a few days. Note that it can often be set aside, sometimes quite easily. If your opponent does this, make sure to hit them with the costs of wasting your time and court time. For instance, you may have to apply to the court using an N244 form for default judgment, which incurs a court fee.

Directions Questionnaire: This is a very important document because it basically lays out the rules of engagement, for instance, what track your claim will be on, how long the trial is likely to last, how many witnesses you need and whether you need an expert. You are settling up the parameters of the dogfight so take care with this form and always try and be professional and liaise with the other side.

Disclosure: Civil litigation is split into phases, and the disclosure phase is the key point at which you have to disclose your evidence to the other side. It only happens after the statements have all been filed and served and a court usually will send out an order laying out the disclosure process, although it is also explained in the CPR. The purpose of disclosure is to collect the evidence that you will then use to exhibit as documents to your witness statement, the next phase after disclosure. You can also make an application for disclosure very early before proceedings are issued but only do this if there really is critical evidence without which it is impossible to get your claim off the ground. (And you can actually point to this evidence. The courts do not like “fishing expeditions”.)

Detailed Assessment: Costs Proceedings, made by means of the Part 8 procedure.

Early Neutral Evaluation: A new type of alternative dispute resolution, that involves an opinion on the strengths of the case, so that parties can more easily come to a settlement. It is like a mini or provisional judgment based on what evidence there is at the time. Mediators usually refrain from expressing a view on the merits of a case, which is why it could be a useful alternative to mediation and may grow in popularity in the future as courts come increasingly under strain.

Enforcement: The procedure you follow after you have judgment and want to get your money!

Exhibits: The documents that are the critical evidence that you “exhibit” with your witness statement.

Fast-Track: Claims between £10,000 – £25,000 are usually allocated to the fast track, but be aware it is not automatic and some complex claims or claims with lots of witnesses may be allocated to the multi-track (or conversely allocated down to small claims). For trials of one day.

Fee Remission: You may not have to pay court fees if you are on benefits.

File: Send to court.

Legal Surgery: Something law firms are increasingly pioneering as a low-cost way to get access to a lawyer who will read documents during that hour and is far more feasible by the change to the online world. A necessity these days as legal aid dries up and more and more people have to pay for legal advice.

Letter of Claim: The critical letter that clearly lays out your claim and is an essential precursor to issuing proceedings.

Limitations: Causes of action have time-frames after which you can no longer bring a claim. So typically for personal injury, it is 3 years and negligence or contract is 6 years. If you bring a claim out of time it is not necessarily fatal, but a defendant will certainly make a major issue of it in their defence. But the time-frames are not set in stone or absolute.

Litigant in person: Someone who represents themselves in their own case.

McKenzie Friend: Someone who helps a litigant in person run their case, but only in exceptional circumstances will the court allow them to actually do all the work, such as presenting the case in court. They are meant to assist, not take charge.

Mediation: A popular type of alternative dispute resolution that courts are hot on these days. On the small claims track, you will be offered mediation and you should probably accept it. In other areas, you can do it before proceedings, or you can ask for a stay and do it after proceedings have been issued. It usually takes a day, in the average-sized claim, and can be expensive as you need to pay for a mediator, three rooms, and perhaps your own lawyer if you are using one. In the future of course people may do them online, which will obviously save costs.

Multi-Track: County court claims of a value over £25,000. But remember this is not the only criteria. The trial will be two days or more.

No Win No Fee: See conditional fee agreement. Same thing.

Part 7: Most money claims are made using the Part 7 procedure and are usually basic money claims. Part 8 is for special cases.

Part 36 Offers: Special types of offers which have specific rules if a party fails to beat that offer at trial, leading to the person who has failed to beat an offer (win or lose) taking a big hit on costs. I do not encourage litigants in person to try to master them but perhaps take some tailored legal advice. This is because they can also use a normal without prejudice offer and a court will also give you benefit for this, though not as much as for Part 36. Do not use them in small claims.

Part 18 Request: A formal way of getting your opponent to ask specific questions. This forms part of the pleadings or statements of case and so the judge will be careful to focus on it, more than he would on a simple letter, for instance.

Pleadings: See statements of case.

Practice Directions: To be found alongside the CPR, guidance to help you with the rules and how to follow them properly.

Pre-Action Disclosure: See disclosure, above.

Pre-Action Protocols: The codes enshrined in the CPR tell you what you have to do pre-issue and the hoops you have to jump through. So do not just shoot from the hip and issue proceedings without having followed the protocols. For most claims, the General Pre-action Protocol will apply. (Personal injury claims, larger building disputes and other claims like defamation, for instance, have their own specific protocols.)

Precedent H: See budgets, above. The complex spreadsheet has to be used in multi-track claims where parties are represented.

Reply: A document that forms part of the statements of case, or pleadings, and is used by a claimant to respond to a defence, or a defendant to respond to a defence to a counterclaim. Not essential, but sometimes helpful in clarifying things you may have missed in your defence or particulars of claim.

Retainers: The fancy word for the contract between you and your solicitor.

Serve: Send to your opponent.

Settlement Agreement: Nearly all cases never go to trial and instead a settlement agreement is drafted, often with a Tomlin order, to bring proceedings to an end.

Small Claims Track: Claims of a value lower than £10,000 and a half-day in length but remember this is not the only criteria, just the main starting point. Trials of half a day. The track where special rules mean lawyers are usually (although not always) kept out, because only in exceptional circumstances will you get your legal costs back from the other side if you win.

Statements of Case: Same thing as pleadings. Lays out the factual basis of your case and the basic story and focuses on the relevant issues and is designed to tease these relevant issues out. It is not to be used to give evidence, which is the domain of witness statements. The shorter and more concise the better and the CPR actually requires them to be concise.

Strike-Out Application: A powerful weapon that is often used by bigger, well-funded opponents like banks, public bodies and corporations, who will use it to expose weaknesses in your drafted case, even though your case may be at heart a strong one. Bring a claim poorly on the papers and you could face a whopping bill before the plane is even off the ground, as they are often made early on, sometimes even before your opponent has filed a defence. If you lose the hearing you end up having to pay your opponent’s costs of that hearing. This acts as a powerful disincentive to the faint-hearted to continue with a poorly drafted claim.

Substantive law: The underlying main law, rather than procedural law.

Summary Judgment: If you think your opponent’s case is so weak as to not reach a basic threshold then you can make this early on, often tactically. But be careful, as a judge may be very reluctant to make an early decision without having seen the full evidence, unless of course, the opponent looks to be just trying it on, buying time, or is a vexatious litigant.

Trial Bundles: As it says, the bundled set of documents that usually the claimant must produce in advance of the trial and send around to everyone. The court will usually order the timing of this. Allow yourself time as it is more time-consuming than you think and always ensure you liaise with your opponent about what goes in so you do not turn up at court with a bundle your opponent does not agree with. One of those points in the litigation cycle is where you need to be professional and co-operate with your opponent.

The White Book: Only barristers should use this hefty legal tome with case authorities on how to interpret the CPR. You can easily go down the rabbit hole with the White Book if you are not a barrister and so better to just focus on the CPR and the plain and common-sense reasoning of the rules and practice directions.

Tomlin Order: The document that is usually required in conjunction with a settlement agreement to formally bring proceedings to an end.

Without Prejudice: What you write on an offer letter which then will not be disclosed until after the judge has made his decision and is considering what costs award he should make. A Part 36 offer is a without prejudice offer.

Without Prejudice Save as To Costs: An offer that is designed to be able to be disclosed in costs proceedings (but not before), should they be necessary on the fast or multi-track.

Witness Statement: Exchanged at a specific date and simultaneously. The document which exhibits your evidence, as opposed to your pleadings or statement of case (which lays out the facts as you say they happened and focuses on the issues). The witness statement is to provide the evidence to prove what you say in your statement of case is right. Do not confuse the two.

The post Words You Need to Know as a Litigant in Person appeared first on Court Wingman.