Is court your only option ?
Don’t be in too much of a hurry to go to Court. Try every means possible to resolve the problem amicably.
The Last Resort
Although our video and website are designed to help you to bring or defend a claim in the small claims court we must stress this is very much the remedy of last resort.
Claimants should make every effort to resolve the dispute by agreement before thinking about issuing Court proceedings. Not only can this be quicker, cheaper and less stressful but by negotiating a fair settlement you are avoiding the risk of losing the claim or failing to collect any money awarded to you.
Be flexible in your negotiations no matter how strong your case is. Virtually every person who brings or defends a claim is convinced that their case is a strong one. However there is a big difference between thinking you have a good case and being able to prove it to the satisfaction of a Judge.
The Court will expect you to have done your utmost to settle the claim by negotiation and Judges are not impressed by claimants who issue a claim at the drop of a hat or by Defendant's who try to defend the indefensible.
In attempting to resolve your dispute out of court you should consider the following options.
- Making a Complaint
Contact the other party and tell them about your dissatisfaction. Invite them to put forward their proposals for resolving the matter amicably.
Many companies and organisations have a formal complaints procedure. If they have one - follow it.
- Arbitration
Ask whether your opponent is a member of a trade association or professional body. If so, find out whether they operate a voluntary arbitration, conciliation or mediation service. These schemes can also often deal with claims that are above the small claims limit, and generally offer a more flexible, cheaper and less formal way of resolving a dispute.
Find out whether a fee is payable and how long it is likely to take to have the matter resolved. As a result of your enquiries you may decide that it will be better for you to pursue the claim this way then by going to Court.
- Letter of Claim
If informal attempts to settle the matter fail, put your grievance in writing. Indeed, before any Court proceedings are commenced you are advised to write to the Defendant setting out the basis of your claim and inviting settlement. These letters are often termed "letters before action" or "letters of claim". You can find example Letters of Claim in your DYJ toolkit simply by selecting the "Precedent Letters" icon.
This should be an open letter (i.e not marked "without prejudice"). It should set out the basic facts of the dispute and identify the grounds upon which the claim is being pursued. If you are able to support your claim with any law then do so. Remember also to specify the amount you seek.
It is a worthwhile investment of your time to prepare the letter as thoroughly as possible as it can form the basis of the "Particulars of Claim" if Court proceedings later have to be issued.
Remember that if a claim is issued then all relevant documents will have to be disclosed and this will include any correspondence that is not marked "without prejudice". When drafting the letter bear in mind that the Judge will have a copy in front of him or her when hearing your case. If you have conducted your case reasonably then you are likely to gain the Courts sympathy and will be in a stronger position on costs; which to a large extent are at the discretion of the District Judge.
- Without Prejudice Proposals
Finally consider putting forward compromise proposals. If you do not want the Court to subsequently see what you have offered then head these "without prejudice". You can use "without prejudice" letters to narrow the issues in dispute or reach agreement on the case as a whole. Consider putting a time limit on acceptance of any offer. For instance you may wish to end your letter:-
"These proposals will remain open for a period of 21 days. If they are not accepted within that period then they will be withdrawn."
If your opponent does not accept your offer, you will then be free to continue to pursue your claim for the full amount and the Judge will not find out about your proposals until after judgment is given.
41%
