Step 7: The Parties
Claimants and Defendants
The parties in a small claim are known as the "Claimant" and the "Defendant". The Claimant is the party bringing the claim. The Defendant obviously is the party defending the claim.
One of the Claimant's first decisions is who to sue. In many cases the answer to this question will be clear. In others it will be less straightforward and it is always worth taking the time to ensure that you identify the correct Defendant. If you don't then your claim could fail or you could be left with a worthless judgement.
So, how do you go about making sure the person you plan to sue is the right one?
Contract Cases
If your claim relates to the supply of goods or services then you should read any relevant documents carefully to ascertain who your contract is with. If the contract was not in writing and there is no paperwork, then there may still be an oral contract. Sam Goldwyn once quipped that a verbal contract isn't worth the paper it's written on! However, they are in fact generally enforceable, so long as they can be proved. Particular care needs to be taken to establish the name of the firm, company or individual that you reached agreement with so that they can be accurately identified as the appropriate Defendant. If you get it wrong then the person you sue could have a cast iron defence.
Negligence Actions
For actions where no formal contract exists the law of negligence may be applicable. This could for instance include personal injury cases or claims for professional negligence. Here you must identify the negligent party such as the "other driver" in a road accident case or your accountant if it is a case of accountant's professional negligence.
Individuals
Care must be taken to establish whether the Defendant is an individual person, a firm or a corporate body. If it is an individual then it will usually be straightforward, so long as you know their name and how to spell it. Sometimes individuals carry on their business under a trading name. If you wish you can refer to both names e.g. "Mary Fowler trading as Fowler's Fancies". The term "trading as " is often shortened to "T/A".
However you should remember that you cannot sue someone under the age of 18; nor can they bring a claim themselves. Children can only bring or defend proceedings with the assistance of an adult known as a Litigation Friend. Similar rules apply to people suffering from mental disorder who are "incapable of managing their affairs".
Corporate Bodies
The most common form of corporate body is the limited company. If your dealings have been with a limited company then it is the company you should sue and not the directors or connected individuals. If you have any doubts or queries about the limited company you are intending to sue then you can carry out a company search either through a company agent or by getting in touch with Companies House direct.
Partnership
Although partnerships are not legal entries they can still sue and be sued in the name of the firm. If your opponent is a partnership you can choose to name the individual partners on the Claim Form or alternatively simply name the firm.
Suing More Than One Party
Sometime you will have a choice of Defendant. Your option here is to sue two or more defendants at the same time or just go against one and join others in at a later date if appropriate (e.g. once you have seen the Defence). Do not be tempted to take a blunderbuss approach and sue anyone and everyone associated with the dispute. This will not go down well with the Court and if you unnecessarily involve innocent parties then your conduct could well be regarded as unreasonable and might lead to a costs order being made against you.
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