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Can Courts Allow Any Small Claim: Genuine or Not?

By: Lorna Elliott LLB (hons), Barrister - Updated: 24 May 2018 |
 
Court Procedure Claim Summary Judgment

Q.In the past month I've had two small claims served on my small business for different matters. I've never had any before.

They are in Southampton Croyden courts respectively. We are in Essex. Having read the claims we have disputed them as they are easily proved against but how can it be that courts can entertain such things without the claimant having to prove they have a genuine claim in the first place?

Also, why is the onus on the defendant to have to travel all the way to another part of the country to defend themselves? It seems to me that anyone can make a claim at any time, anywhere, with no real basis for the claim. Why can't I defend myself locally? Why can't I refute the claim with evidence and have the court rule without having to attend?

Appreciate your comments.

(C.L, 28 February 2009)

A.

This must be frustrating for you. If a claim is lodged in a court against you personally (i.e. not against your business) you would have the option of applying to the court to have the case transferred to your home or local court. However, this is not the case with claims lodged against businesses which is why the case generally remains in the claimant’s local court.

Lodging Proceedings

It’s very easy to lodge a claim in the small claims court and in fact, nowadays has become even easier with the introduction of MoneyClaimOnline. However, at this early stage, the court is only really interested in the administrative aspects of the claim, rather than the merits of each side’s case. The court does not make any decision as to the validity or otherwise of any claims until, for example:

a) The claimant has lodged a claim, the defendant has served a defence and or defence and counterclaim, and the case proceeds to final hearing (which is the determining hearing, or trial.)

b) The claimant has lodged a claim, the defendant does not respond, and the claimant applies for summary judgment.In other words, both sides must have had at least an opportunity to serve documents at court before the court will even consider the merits of the case.

Bear in mind that you don't actually have to attend a final hearing in person. Under the Civil Procedure Rules 27.9 if you write to the court, giving at least seven days notice that you are not going to be able to attend in person, and as long as you have served all the documents upon which you intend to rely on the other party at least seven days beforehand, the court will consider your case on the papers alone.

Abuse of the System

Unfortunately, the courts system is subject to abuse. One common method used by criminals is to lodge proceedings for ‘unpaid debts’, whether in a business or personal capacity. The claimant proves that the debt is owed, and the defendant pays back the ‘debt’ to the claimant. It’s a perfect way to launder money.

Summary Judgment

In future, if you consider that there is no real prospect of the claimant succeeding in their claim, you can apply to the court for summary judgment. This is disposal of the case without the need for a full hearing. You would apply to the court using form N244 and providing evidence to support your contention that the claimant’s claim was without merit. More detailed information about summary judgment can be found on the ‘Summary Judgment’ page on this site.

Vexatious Litigants

If you were persistently sued by one person, who had no real basis to sue you and is merely harassing you (for whatever reason) you would be able to apply to the court to have them made a ‘vexatious litigant.’ What this means is that they are unable to lodge civil proceedings without applying to the court beforehand for permission to do so. This is a very serious step for the court to take because it essentially takes away a fundamental human right, Article 6, the right to a fair trial. You can see a list of all living vexatious litigants, as well as the year in which they were made vexatious by the court, on the HMCS website.

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chorus - 24-May-18 @ 3:43 PM
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paddywagon - 22-Aug-17 @ 5:16 AM
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cathy - 25-Jun-15 @ 10:22 PM
@Elliot - I'm afraid we can't really comment on something which by commenting on could affect you decisions. However, given you say he was out of the the 14 day returns policy and that you have evidence that they made the wrong order you have a strong case. Perhaps, it might be worth you contacting a solicitor, or CAB for a bit of constructive advice.
AboutSmallClaims - 25-Nov-14 @ 1:59 PM
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Elliott - 24-Nov-14 @ 2:11 PM
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laogong - 15-Nov-14 @ 2:35 AM
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SarahH - 7-Nov-14 @ 1:03 PM
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AndyN - 7-Nov-14 @ 10:57 AM
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