So, you have an unpaid invoice, you’ve issued legal proceedings, and your debtor has defended the claim. What happens next? You’re now in the hands of the courts, which can be a worrying time if you’re not familiar with the procedure. It’s the unknown that is the issue here. If you know the process and what to expect, you’ll be armed with the knowledge to deal with the court directions when they are made. It’s also worth considering whether you are truly prepared to proceed, as to do so when you do not legally have a claim, can result in you being forced to pay your opponent’s legal costs, as well as your own. It can be difficult to deal with cases on your own, particularly when you feel a personal grievance towards the debtor. With any kind of legal claim, it’s wise to seek advice before acting.
Defended claim
The defendant, at the point of receipt of your claim, can do one of a few things. A defence can be filed disputing part of the claim, the whole of the claim, and a counterclaim can also be made against you. Let’s assume for the sake of argument that the defendant has filed a defence disputing the whole of the claim on the basis that you, as the claimant, failed to provide the goods or services provided for by the contract and therefore payment will not be made.
Application to strike out
If the defence has absolutely no prospects of success, it may be possible to make an application to strike it out and enter judgment for the amount claimed.
Directions Questionnaire
If the claim has been defended in any way, the court will send you, as the claimant, a copy of the defence and (provided that the debt claim is under £10,000) a notice that the court has assumed the case is suitable for the small claims track. You and the defendant will be asked to complete the Directions Questionnaire and return it to both the court and the other party.
Mediation
When completing the Directions Questionnaire, the parties are asked to consider if they are happy to engage in dispute resolution. The court’s mediation service is free and is dealt with over the telephone. Both parties must be willing to take part, as it is a voluntary process. However, it’s worth noting that the court can take a dim view of those who are unwilling to cooperate with each other. Any agreement reached will be contained in an order, which can be enforced by either party should the other default. As the mediation process is free, it’s a great way of keeping litigation costs down.
Hearing fee
If mediation is not appropriate, the case will be transferred to a court local to the defendant and listed for a hearing. At this point, a court fee will be payable, depending upon the value of the claim.
Directions
Directions will be given to take the file through the court process up to a final hearing for determination. These directions are likely to include filing (sending to the court) and serving (sending to your opponent) a bundle of all of the documents upon which you intend to rely. You will also be required to file and serve a witness statement. If you require expert evidence (e.g. medical or engineering), this will also need to be dealt with at this point. The court will have set a date for the hearing and all the preparation work will lead you towards that final hearing.
The final hearing
Although you can represent yourself, it’s advisable to instruct a legal agent or barrister to attend on your behalf. You should be aware that the costs of sending an agent or barrister may not be recoverable from the other party, even if you are successful.
The hearing is likely to take place in the judge’s chambers. Although the layout of the room will be similar to that of a courtroom, it isn’t quite so formal and not nearly so intimidating. It will be a district judge who hears the case, and the people in the room, as well as you, your lawyer and any witnesses you have, will be your opponent, their lawyer, their witnesses, and court staff. The judge will expect to be addressed as ‘Sir’, ‘Madam’ or ‘Judge’ and it’s advisable to be smartly dressed.
The judge will already have been given the opportunity to read through the papers sent to the court, and will therefore have the background knowledge of the issues at hand. He/she will come first to you as the claimant, to hear your side of the story, then ask your opponent for his account. You will then be given the chance to respond to what the defendant has stated in defence. Alternatively, the judge may just ask questions of both parties before making a decision.
Your case will be a civil case, which will have to be proved on the ‘balance of probabilities’. This means that if it’s more likely than not that your version of events is true then the decision will go in your favour.
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