Establishing Fault in a Small Claim

There are two different elements of ‘proof’ when it comes to evidence required for successful legal claims. The burden of proof dictates which party is required to prove the case, and the standard of proof provides the amount of proof that is required to prove the case. In the civil courts, the claimant is required to prove the case (the burden of proof).

One notable exception is the law in relation to libel, which requires the defendant to prove that what they have published about the claimant is true. In civil cases, the standard of proof is ‘on a balance of probabilities’ which means ‘more likely than not’ or at least 51% true.

This means that in order to prove a claim or counterclaim, a party must be able to persuade a judge that what they are alleging is more likely to be true than not. In practical terms this could mean a variety of things depending on the type of case:

Debt Recovery

If you are seeking to recover a debt from someone in the small claims court (whether as a claim or counterclaim) you must prove that you are owed the money ‘on a balance of probabilities’. This means that you will need to show that:

• You provided services, sold goods or lent money to the other party
• That these were not provided free of charge or given as a ‘gift’
• That you have requested payment
• That payment has not been forthcoming
• And that you took all reasonable steps to settle the claim before you resorted to taking the matter to court.

Personal Injury

The small claims court does not allow for expert evidence, and usually any personal injury claim for which expert evidence is required will be allocated to the fast track. Only the very smallest personal injury cases will be heard in the small claims court, (up to £1000). Given this ceiling, there are limited scenarios for the types of personal injury cases that will be heard in this court.

Cases can be based on intentional wrongdoing, in which a person deliberately caused an accident (which may coincide with criminal charges); or negligence, which is the reckless act or omission of another that causes an accident; or on a ‘strict liability’ basis. Strict liability is a type of fault that does not require any establishment of blame, e.g. if a manufacturer releases a product that causes injury when being used normally the manufacturer (or in some cases the distributor or other party) will be automatically liable under the doctrine of strict liability.

However, for the purposes of the small claims court, the vast majority of personal injury cases are likely to allege negligence of one or more party. In a negligence case as the claimant you must prove:

• That you were injured
• As a result of the defendant’s negligence (and that you weren’t also negligent – known as ‘contributory negligence’, which could affect the amount of any award the judge makes in your favour)
• That you could have reasonably foreseen the injury (e.g. if you are on the defendant’s property and you are struck on the shoulder by a falling asteroid, that is not reasonably foreseeable)
• And that you suffered some kind of loss as a result. Types of loss include pain, suffering and loss of amenity as a result of the injury itself (which you won’t be able to quantify exactly but can estimate using the Judicial Studies Board guidelines) as well as out of pocket expenses such as medical costs, taxi fares, lost earnings, damaged possessions etc.
• You should also show that you tried exhaustively to settle the case prior to resorting to court proceedings.

Consumer Claims

In a consumer claim, the claimant is a consumer who is suing a trader or other seller in the course of his or her business (i.e. not a private individual). The law relating to these types of claims is contained in the Sale of Goods Act and the Supply of Services Act.

If the claim relates to the sale of goods, you have to prove that the goods were not either

• as described or
• of satisfactory quality or
• fit for purpose or
• any combination of the above
• unless any of these have been waived or excluded in the contract.

In a supply of services case, you must prove that either the supplier of the service (acting in the course of a business) did not either:

• use reasonable skill in carrying out the service
• did not carry out the service within a reasonable timescale (unless otherwise agreed)
• or that they did not charge a reasonable amount for the service
• unless any or all of these have been waived or excluded in the contract.

It is also possible to combine these elements in a case in which both the sale of goods and the supply of services have been inadequate (e.g. a kitchen fitter supplies and badly fits a set of faulty kitchen units.)

If you have suffered loss as a result, you must also be able to prove the nature and extent of the loss you suffered. This could be having to pay extra money for something, incurring further expenses or needing to pay for repair, disappointment, or some other type of loss.

Breach of Contract

In order to prove the elements required for a breach of contract case, whether between two businesses, two individuals, or a business and an individual, a claimant must prove that:

• there was a valid contract in force at the time of the breach (i.e. there was an offer that was accepted, and there was ‘consideration’)
• that the claimant was a party to that contract
• that the defendant breached the contract
• and that breach was the defendant’s fault rather than unforeseeable or outside his reasonable control
• and that the breach caused the claimant loss
• the claimant should also provide evidence of the losses sustained as a result of the breach.