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What to do Before Going to Court

By: Louise Smith, barrister - Updated: 21 Nov 2014 | comments*Discuss
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There are a number of factors to consider before going to court. Starting a claim should always be a last resort.

Talk to the Other Side

It is always worth trying to talk to the other side. The dispute may have arisen out of a misunderstanding which could easily be resolved. Naturally it can be difficult to talk to the other side calmly and rationally – especially if they have behaved badly. It is important to remember that the aim of talking is to get what is best for you.

Consider the Alternatives

There are a number of alternative methods of resolving a dispute. Alternative Dispute Resolution (ADR) can be a quicker, cheaper and better way of resolving some disputes. Depending on the method used, ADR could help the parties come together in a neutral environment and reach a settlement with which everyone is happy. ADR is usually more flexible, and less combative, than going to court. Going through an ombudsman may be a better solution than going to court when there is a grievance against a large company.

Get Advice

Speaking to a qualified adviser about the merits of a claim before going to court could save tears later. Just because someone is sure they are in the right it does not necessarily mean that they are. Indeed, even if they are right it does not necessarily follow that they have a valid legal claim. A qualified adviser will also know about the time limits and procedure involved in starting and pursuing claims.

Understand What a Court Case Involves

Going to court can be stressful and time-consuming. Involving travel to court, waiting around and having to reveal information that people might prefer to keep private. There are rules that have to be followed and the winner is not always the person who is “right”. If somebody brings a claim they have to prove that they are right. If the court decides that a case is not suitable for the small claims track, the losing party could end up having to pay the other side’s costs – which can easily come to more than the value of the claim.

Will a Court Case Solve the Problem?

If the case involves a simple question of an unpaid debt, starting a claim may seem like the obvious way of resolving it. However, even if the claimant wins it does not necessarily follow that the debt will be paid. The defendant may have disappeared or simply not have the money. If a judgment debt is unpaid it is the claimant’s responsibility to enforce the judgment. Enforcing the judgment will almost certainly involve further expense. Whilst these expenses may, in theory, be recovered from the defendant there can be a risk of throwing good money after bad.

Pre-Action Protocols

For some types of claims there are special pre-action protocols, or rules, which apply. If these rules are not followed before the claim is started the judge can take this into account when giving judgment and when deciding what to do about costs. A winning party could even end up having to pay the other side’s costs if they failed to follow the protocol. Types of cases with specific pre-action protocols include personal injury, housing disrepair and professional negligence.

Send a Letter Before Action

Before starting a claim a final letter should be sent to the other side warning them of an intention to pursue the case through the courts. This should include a simple statement of your case and give a last chance to pay the debt. By giving the other side this last chance the claimant can show the judge that they behaved reasonably and made genuine efforts to resolve the case before going to court – factors that may be taken into account when deciding the claim.

Preparation is the Key

It is vital that a claimant knows their case – and how to prove it – before starting a claim. Knowing all the relevant dates and incidents and preparing a chronology will help both whilst filling in the claim form and when it comes to preparing for a trial. Courts can be overwhelming places and it is easy for people to get confused or muddled once they enter a court room – especially if they find themselves confronted by a barrister whose sole aim seems to be twisting people’s words. Having all the facts and documents to hand, and in a logical order (not stuffed into plastic bags), will save time and avoid the risk of a vital document being overlooked.

When filling in the claim form the address and name of the defendant must be correct. Special care should be taken with the identity and title of the defendant if they are a limited company or operate under a trading name.

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@Dee - it very much depends upon the type of case and solicitor's agreement. I've included a FindLaw UK, link that may explain the complexity of costs more fully to you here.
AboutSmallClaims - 21-Nov-14 @ 1:57 PM
I won a court case and the judge ordered that the other side had to pay my costs...but I still had to pay my solicitor plus barristers which amounted to over 10.000 even though I won the case ....can you please tell me why..
dee - 21-Nov-14 @ 8:24 AM
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