Headquarters Army Legal Assistance Catterick Barracks British Forces Post Office 39

Headquarters Army Legal Assistance Catterick Barracks British Forces Post Office 39 Tel Civilian: (0049) (0)521 9254 3191 or 3196 Fax Civilian: (0049) (0)521 9254 3115 Tel Military: 94 8(81) 3191 or 3196 Fax Military: 94 8(81) 3115 Reference: ALA/GEN/6/COMD Date: 2 May 12 GUIDE TO SMALL CLAIMS Introduction 1. The Small Claims track is a low cost, quick and informal way of settling disputes through the courts. A Small Claim is one which is not complex in nature and where the amount of the claim is less than 5,000. There are two exceptions to this: if the claim is for personal injury, then the claim must be for 1,000 or less if it is to be a Small Claim; and, if the claim is for a landlord s failure to repair a property then the cost of the repairs or damage must be 1,000 or less. The Small Claims track (often known colloquially as the Small Claims Court) is designed so that neither a Claimant nor a Defendant should need a lawyer to represent them at the hearing. 2. This note explains the process for making and defending a Small Claim under the legal system of England and Wales. It also outlines some of the key issues which you will need to consider and address as part of your claim. This information is, of course, general in nature and for specific questions about your particular circumstances speak to a Legal Officer at Headquarters Army Legal Assistance (HQ ALA). 3. At Annex A there is a glossary explaining some of the legal terms which you will encounter throughout your claim, Annex B answers Frequently Asked Questions, Annex C lists further sources of information and Annex D is a template of a letter you should send to the person you are claiming against before you make a claim. Claimant and Defendant 4. The person who starts proceedings is called the Claimant and the person who responds to proceedings is called the Defendant. HQ ALA can advise you whether you are the Claimant or the Defendant. Time limits 5. If you decide to take a matter to court, there are strict time limits which you need to make a claim within. Please speak to a Legal Officer to find out what the time limits are for your particular case. Before you make a claim 6. Before starting a claim in the courts you should contact the person/people/company you have a dispute with to discuss the issues you have. The courts will expect you to have tried all possible means to come to an agreement before starting any court action and may give you a penalty if they think you have not tried to do so. 1

7. For example, if you have bought something that does not work, you should not apply to the court straight away. First you should speak to the person or shop that sold you the item to try to agree a resolution. If that does not work you should write to them telling them you will take the matter to court if you do not hear from them within a set amount of time, typically within a month. 8. Letter before claim. The letter you send to person/company you are thinking of claiming against must follow a set format. This is to make sure it complies with the court Pre-Action Protocols. For a basic claim (such as one where a contract was not fulfilled), the letter must include certain points. These are; a. A summary of what has happened. b. An explanation of what you want from the person/company you are claiming from. c. If the claim is for money, an explanation of how you have calculated the sum you want to claim. d. A list of the documents you will use to support your case. e. A list of any documents you would like to see from the person/company you are claiming from. f. A reasonable deadline for a response (this must not be less than 14 days and it is usually appropriate to allow 28 days). g. A reference to the Practice Direction on Pre Action Conduct, including the fact that section 2 paragraph 4 of the Direction gives the courts the power to impose sanctions on the parties if they fail to comply with the Direction. h. A warning that ignoring the letter before claim may result in you starting court action. i. If appropriate, a statement saying that you would be willing to consider resolving the dispute out of court using a system such as mediation. 9. A suggested template letter is at Annex D below, but there are separate requirements for some types of claim (for example, a claim for Personal Injury). Therefore please speak to a Legal Officer who can help you write this letter. 10. If you receive a letter before claim. If you receive a letter similar to the letter at Annex D you should contact a Legal Officer. You need to respond within 14 days and must at least acknowledge the letter even if you cannot respond to all of the claims against you. Your letter in response: a. must state whether an insurer is or may be involved; b. must state the date by which you (or your insurer) will provide a full written response; and c. may request further information to enable you to provide a full response. 11. If you cannot provide a full response within 14 days after you receive the letter before claim because you intend to seek advice (for example, from a lawyer) then the initial letter should state: a. that you are seeking advice; b. from whom you are seeking advice; and c. when you expect to have received that advice and be in a position to provide a full response. 2

12. In your full written response you should accept the claim in whole or in part, or state that the claim is not accepted. If you accept the whole of the claim you should contact the claimant to arrange how to settle the claim. 13. If you do not accept all or part of the claim you should write to the claimant stating: a. reasons why the claim is not accepted, identifying which facts and which parts of the claim (if any) are accepted and which are disputed, and the basis of that dispute; b. whether you intend to make a counterclaim against the claimant (and, if so, provide information equivalent to a claimant s letter before claim); c. whether you allege that the claimant was wholly or partly to blame for the problem that led to the dispute and, if so, summarise the facts as you see them; d. whether you agree to the claimant s proposals for resolving the dispute out of court, and if not, state why not and suggest an alternative form of resolving the dispute (or state why you don t consider any appropriate); e. list the essential documents on which you intend to rely; f. enclose copies of documents requested by the claimant, or explain why they will not be provided; and g. identify and ask for copies of any further relevant documents, not in your possession and which you wish to see. 14. Claimant s reply. If you are the claimant and you receive a letter from the defendant similar to the one described in paragraph 10 or 13, you should provide the documents requested by the defendant within as short a period of time as possible or explain in writing why the documents will not be provided. 15. If the defendant has made a counterclaim you should reply to the defendant including all of the information listed at paragraph 13. How to make a claim 16. If you have sent a letter of claim and received no reply within the time limits, or the defendant does not accept all or part of the claim, as long as it falls within the requirements for a small claim, you will need to follow the court procedure as set out below. a. Drafting the claim form. You will start a claim by filling in a claim form (N1). These are available from local courts in the UK and also online at: http://hmctsformfinder.justice.gov.uk/hmcts/formfinder.do The claim form will ask for your details, the details of the person you are claiming against and details of the claim (the particulars of claim ). You should complete all of the details on the form itself, but if you need extra space you can complete the particulars of claim on a separate piece of paper. If you need more time to write the particulars of claim, you can send these to the court separately, but the court cannot receive them more than 14 days after they receive the claim form. If the details of the claim are complicated, please contact a Legal Officer to help you write the particulars of claim. Please note that if you are referring to a written agreement or any sort of document you will need to attach copies of the documents to your claim form. 3

You may be able to claim interest on your claim. Please speak to a Legal Officer about this as you have to include specific wording in your particulars of claim. If your claim is for a precise amount of money you may be able to start it online at www.moneyclaim.gov.uk. Please speak to a Legal Officer about how to go about this claim. b. Sending the claim form to court. You should then post the claim form to the court you want to deal with the matter. You will also need to send the court fee with the application. The amount that you need to pay depends on the amount of money claimed. Details of the fees can be found on the Justice website here: http://hmctscourtfinder.justice.gov.uk/courtfinder/forms/ex50_e.pdf If you cannot afford the court fees for one of the following reasons, then you may be able to apply to the court for a reduction or waiver of fees: (1) because you receive certain benefits like Income Support or income-based Jobseeker s Allowance; (2) because your annual income is low; or (3) because of financial hardship. These criteria are unlikely to apply to Service personnel or their dependants and UKBCs and so please speak to a Legal Officer if you think you are unable to pay the court fees. c. Service of the claim form. Service is when the defendant is sent the court papers in relation to the claim. The court will usually serve the claim form on the defendant by sending it first class post. You can ask the court to let you serve it yourself, and they will send you back a stamped copy of the claim form. However, as there are a number of forms you need to send with the claim form when it is served, and because of the time post takes through BFPO postage, we recommend you leave the court to serve the document. What to do if a claim has been made against you 17. If you are not defending the claim. If you agree that you owe the money which is being claimed against you, you are not defending the claim. If you can afford it you should send the money to the claimant directly. 18. If you cannot afford a lump sum but agree you owe the money you should contact the claimant to suggest an arrangement. For example, you could offer to pay the money in instalments or offer to pay the lump sum at a later date. If you agree an arrangement with the claimant you should make sure you can definitely afford it and then return a form to the court requesting a judgement in admission. 19. You must make sure you can afford the arrangement as if you miss even one instalment the claimant could take legal action against you. 20. If you are defending the claim. If you are the Defendant and do not agree that you owe the money which is being claimed, you are defending the claim. You need to respond to the claim form within strict deadlines. 21. You must respond to the claim form within 14 days after the date of service of the claim form. If the particulars of claim were sent after the claim form you have 14 days from when the particulars of service were served. You should send your defence to the court at this time. 4

22. The date of service of the claim form is not when you receive it, but the second day after it was posted. Because of the time postage take through BFPO you may not have very long to reply. Please contact a Legal Officer as soon as you receive a claim form and we can advise you on what you should do next. 23. If you do not send the correct documents back to the court, the Claimant might ask for a Default Judgement against you. This could have a negative impact on your credit rating. To stop this happening, make sure you return the documents on time. If you miss the deadline for any reason, speak to your Legal Officer who will be able to advise you what to do next. What happens next? 24. Allocation of the claim. The court will then send you a notice of allocation which tells you what you need to do for the hearing. You could be told to make sure you send all relevant documents to the other side within 14 days, or other similar commands. You must make sure you comply with these as if you do not the hearing could be postponed and you could have to pay additional costs. If you are the claimant the notice of allocation will also tell you when you should pay the fee for the hearing by. If you do not pay the fee by its due date the court may cancel your hearing. 25. The hearing. The notice of allocation will tell you where and when the hearing will take place, and also how much time it should take. 26. Attending the hearing. If you are the Claimant and want to go to the hearing but cannot make it on the date it is scheduled for, you can apply to ask the court to push the date back. You will need to pay to apply for this and the court will only allow it if you have a good reason. If you are the Claimant and do not want to go to the hearing (e.g. if the travel costs are very high) then you can ask the court to deal with your claim without you there. You must write to the court to ask this and your letter must arrive at the court at least seven days before the date of the hearing. You must also send a copy of the letter to the defendant. 27. If a final hearing date has not been set. Sometimes the court will not set a final hearing date when the claim is first allocated to the Small Claims track. The judge may say the claim can be handled without a hearing, or the judge may want to hold a preliminary hearing. 28. If the court thinks the claim can be handled without a hearing you will have the opportunity to say you would rather there was a hearing. If you do not mind, or you do not reply, then the case will be decided on the basis of the papers you have sent in. 29. The judge may want to hold a preliminary (first) hearing before the full hearing. This might happen if there are special or unusual steps which the judge wants to explain to you or the judge thinks neither side is likely to win the case. Alternatively, the judge may think one side is very unlikely to win. If the judge thinks neither side will win or one side will definitely win the preliminary hearing can become the full hearing. What will happen at the hearing and how should I prepare for it? 30. Preparing for the hearing. You must prepare carefully for the hearing as the court needs to be convinced of your case. If you are not confident about preparing or presenting your case speak to a Legal Officer who may be able to assist you to prepare your case and could put you in touch with organisations who may be able to help you in court. 5

31. A few pointers you should stick to when you are preparing your case are: a. You should write down your case what points you want to make, if there are any relevant documents you need to refer to and which documents prove which points of your case. b. You should organise your notes about the case and your documents in date order. This is so you can explain to the court what has happened with your case right from the beginning. c. You can take along any evidence you have of your claim. For example, if you are claiming you bought something which was faulty and you can easily take evidence of it to court (e.g. clothes damaged by a faulty washing machine), you should do so. If the items are too big to take to court (for example a car) then you should take photographs of the item. d. You should also take along receipts of any expenses you have had to pay linked to your claim. e. If there are witnesses (other than the Claimant or Defendant) involved in the claim and the court has agreed they can attend, then they must attend. You may also use an expert witness. Please speak to a Legal Officer if there are any witnesses in your case. 32. The final hearing. The hearing will usually be in public. If you would like the hearing to be in private and you have good reason for this, you should ask the court if it can be in private. Speak to a Legal Officer about this. A Small Claims hearing will be informal and strict rules of evidence will not apply. 33. The judge will be in charge of the hearing and will make sure the hearing is fair. The judge may ask the witnesses questions and may limit the amount of time that you, the other side or the witnesses have to speak. 34. If you do not speak English as your first language you may find it useful to have an interpreter. Contact a Legal Officer for help arranging this. 35. The judge will tell you his decision at the end of the hearing. This decision is called the Judgement. The judge will give you reasons for his decision which must be given as simply and briefly as possible. The reasons will usually be read out by the judge at the end of the hearing, but occasionally the judge will give them in writing or at a later hearing. What happens if you do not agree with the decision of the court? 36. If you think the court has made a mistake, you may be able to ask a higher court to reconsider the judge s decision. This is known as appealing the decision. However, it is unlikely you will be able to do so. You can only appeal if the court made a mistake about the law or there was a serious irregularity in the proceedings. 37. If you do decide to appeal the decision, please contact a Legal Officer as there are strict timelines for sending documents to the court. What happens if the person with the judgement against them does not pay? 38. If the Judgement was made against you and you do not pay, the Claimant will go back to the court to ask them to make you pay. You should therefore pay as soon as possible because the court can order that bailiffs come to your house and they may be able to take your possessions. 39. If you are the Claimant and the court decides the Defendant should pay you money but they do not do so, you can apply to the court to make the Defendant pay. Please contact a Legal Officer to advise you on this. 6

Summary 40. This note has summarised the key issues you need to address before you make a claim, as part of your claim and if somebody has made a claim against you. This included how to write a letter before action, how to make a claim, how to respond to a claim and the procedures you need to follow during a claim. You can go through all of these important steps with a Legal Officer. 7

ANNEX A TO ALA/GEN/6/COMD DATED 25 NOV 11 GLOSSARY OF LEGAL TERMS Appeal. If you think the court has made a mistake, you may be able to ask a higher court to reconsider the judge s decision. Claimant. The person making the claim. Claim form. The form for starting a case. Counterclaim. The defendant claims against the claimant in response to the claimant s claim. Defendant. The person/firm against whom the claim is being made. Default Judgement. A Judgement made against the Defendant by the court if they do not reply to the claim within a certain period of time. Enforcement proceedings. The Claimant applying to the court for an order to make the Defendant pay a Judgement. Judgement. The decision of the judge at the end of a hearing. Judgement on admission. The Defendant admits they should pay the money and a court confirms both that they should pay the amount, and also the arrangements they will use to pay (e.g. payment in instalments). Notice of allocation. Tells you what you need to do for the hearing. Particulars of claim. The details of what the Claimant is claiming. Pre-Action Protocol. What the courts expect you to have completed before you make a claim. If you do not follow these directions the court may not allow part or any of your claim. Preliminary hearing. The first hearing of the case by the court. Service. The defendant receiving papers from the court. 8

ANNEX B TO ALA/GEN/6/COMD DATED 25 NOV 11 FREQUENTLY ASKED QUESTIONS 1. What is a small claim? A small claim is one which is for 5,000 or less. There are two exceptions to this: a. if the claim is for personal injury, then the claim must be for 1,000 or less; b. if the claim is for a landlord s failure to repair a property then the cost of the repairs or damage must be 1,000 or less. 2. Do I need to be represented by a Solicitor? No. The Small Claims Court is designed so that you do not need a solicitor representing you at the hearing. If you do want a solicitor to represent in court you then ALA will be unable to do so and you will need to instruct a civilian solicitor. We can help you contact civilian solicitors who have experience in dealing with service personnel, their dependants and UKBCs. A non-lawyer (such as a friend or relative) can speak on your behalf in court. If you want to discuss this option please speak to a Legal Officer. ALA can help you with the paperwork when you are making the claim and when you are preparing for the hearing. 3. Which court should I apply to? Speak to a Legal Officer about which court you should apply to. 4. If I make a claim, will I have to go to the UK for a court hearing? You will not necessarily have to go to a court hearing if you have made a claim. The defendant might agree they owe you the money and so pay it to you. Alternatively, the defendant might offer to pay you some of the money you have claimed and you are happy to accept this. Also, the defendant may not send their defence to the court within the strict deadlines. If they do not send their defence, the court will award you a judgement in default. This means the judge may decide how much to award you without a hearing. If the claim does go to a full hearing and will be very expensive for you to get back to the UK, speak to a Legal Officer as they may be able to request that the court holds the hearing without you there. 9

5. How much will my claim cost? If you are advised throughout by HQ ALA you will not have to pay any legal fees but you will, if you are the Claimant, have to pay the court fees. The amount that you need to pay in court fees depends on the amount of money claimed. Details of the fees can be found on the Justice website here: http://hmctscourtfinder.justice.gov.uk/courtfinder/forms/ex50_e.pdf. For example, a money claim using the online claim system for 300 or less will cost 25 and a claim for up to 5,000 issued by the court will cost 120. If you need to instruct civilian solicitors in the UK your legal expenses will depend on the length and complexity of proceedings and may be several thousand pounds. 6. Can I claim in the UK courts if the incident happened in Germany or another European Country? If your claim is for less than 2,000 you may be able to claim in the UK courts and the Judgement will be enforceable in a European Member State (including Germany). This claim will take place under the European Small Claims procedure and details can be found here: http://europa.eu/legislation_summaries/consumers/protection_of_consumers/l16028_en.htm 7. What if I don t think my claim should be heard in the Small Claims Court? If your claim fits the relevant criteria it will be heard by the Small Claims Court unless you can show either: a. Your case has complex facts or is dealing with a difficult question of law; b. You are accusing the other side of fraud; c. Both sides agree the Small Claims Court should not hear the case; or d. It is not reasonable for your claim to be heard in the Small Claims Court, either because there is a Counterclaim for more than 5,000, or because your personal circumstances give a reason the claim should not be held in the Small Claims Court. 8. Do I need to contact anybody before I make a claim, or can I just start the claim in the courts? Before starting a claim in the courts you should contact the person/people/company you have a dispute with to discuss the issues you have. You also need to write a letter to them in the form set out in Annex D. If you do not attempt to contact the other party, or if you do not write the required letter, the court may say you are not allowed to claim the amount you have asked for. 10

ANNEX C TO ALA/GEN/6/COMD DATED 25 NOV 11 FURTHER INFORMATION Free legal advice If you are posted outside of the UK, HQ ALA may be able to assist you. Call 94881 3191/3196 (military) or 0049 (0) 521 9254 3191/3196 (civilian) to book an appointment to discuss your case in detail with a Legal Officer. For free legal information and advice may be available in the UK from from Community Legal Advice advice call (0044) (0)845 345 4 345 or at www.communitylegaladvice.org.uk You may also get free legal advice from a Law Centre or a Citizens Advice Bureau at www.adviceguide.org.uk Details of UK courts For information from the court, visit www.hmcourts-service.gov.uk For contact details of all UK courts, visit www.hmcourts-service.gov.uk/hmcscourtfinder Specific claim areas (UK issues only) For information on consumer issues, contact Consumer Direct on (0044) (0)8454 04 05 06 or visit www.consumerdirect.gov.uk For issues relating to water, contact the Consumer Council for Water on (0044) (0)121 345 1000 or (0044) (0)845 039 2837 (this will redirect you to your local committee) or by email on enquiries@ccwater.org.uk For issues relating to landline telephones, mobile phones and the internet, contact Ofcom on (0044) (0)20 7981 3040 or you can send an email to Ofcom through their website at www.ofcom.org For issues relating to gas and electricity, contact Ofgem on (0044) (0)20 7901 7295 or by email on consumeraffairs@ofgem.gov.uk For information on how to contact Ombudsman services, contact the British and Irish Ombudsman Association on 020 8894 9272 or by email on secretary@bioa.org.uk 11

ANNEX D TO ALA/GEN/6/COMD DATED 25 NOV 11 Your address Your supplier's address Dear [Reference] In accordance with the Civil Procedure Rules (CPR), I would ask you to treat this letter as [your name] s letter before claim. The following letter fulfils the requirements of the CPR. CLAIMANT S FULL NAME AND ADDRESS [Insert your name and address] BASIS ON WHICH THE CLAIM IS MADE [Explain why you are claiming] SUMMARY OF THE FACTS [Provide a summary of what has happened up until now] WHAT THE CLAIMANT WANTS FROM THE DEFENDANT [State what you want from the party you are claiming from] HOW THE CLAIM HAS BEEN CALCULATED [An explanation of how you have calculated the sum you want to claim.] LIST OF DOCUMENTS ON WHICH THE CLAIMANT INTENDS TO RELY [List the documents you will use to support your case.] LIST OF DOCUMENTS THE CLAIMANT WISHES TO SEE [List any documents you would like to see from the person/company you are claiming from.] DATE BY WHICH THE CLAIMANT CONSIDERS IT REASONABLE FOR A FULL RESPONSE TO BE PROVIDED I look forward to hearing from you within the next [14/28 days delete as necessary]. Should I not receive a response to my letter within this time frame then I anticipate that court action will be commenced with no further reference to you. ALTERNATIVE DISPUTE RESOLUTION I can confirm that I would be agreeable to mediation and would consider any other system of Alternative Dispute Resolution in order to avoid the need for this matter to be resolved by the courts and would invite you to put forward any proposals in this regard. 12

WARNING TO AN UNREPRESENTED DEFENDANT I assume you are currently unrepresented in this matter. As such, I am obliged to refer you to the CPR practice direction regarding pre-action conduct. Particular attention should be paid to section II paragraph 4 concerning the court s powers to impose sanctions for failure to comply with the practice direction. Please be aware that ignoring this letter before claim may lead to proceedings being started and may increase your costs liability. I look forward to hearing from you in the next [14/28 days delete as necessary], Yours sincerely Your name 13