AA Legal Documents
Law guide

The small claims track

Contents

What does the judge take into account?

As well as your view and that of the defendant, the judge will take into account:

  • The amount in dispute

The amount in dispute should not be more than £10,000.

  • The type of claim

These will usually be consumer claims (e.g. goods sold, faulty goods or workmanship), accident claims, disputes about ownership of goods, and disputes between landlords and tenants about repairs, deposits, rent arrears, and so on, but not possession.

  • The amount and type of preparation needed to be able to deal with the case justly

The judge will have in mind that this procedure is intended to be simple enough for people to conduct their own cases without a solicitor's help, if they wish. The claim should require only minimal preparation for the final hearing, for example, cases in the small claims track will not normally involve a lot of witnesses or difficult points of law.

If your claim is for less than £10,000, but includes a claim for personal injury, or for housing disrepair to residential premises and damages arising from the disrepair, your case will not be allocated to the small claims track unless the amounts claimed in respect of personal injury, disrepair and damages are each no more than £1,000.

What if my claim is over £10,000?

Yes, but the defendant must agree with your suggestion and the judge must be satisfied that the claim is straightforward enough for the small claims procedure. You should also bear in mind that there are different rules about costs. If a claim for more than £5,000 is allocated to the small claims track, the winning party will be able to claim costs, including solicitor's costs, against the losing party. These costs cannot, however, be more than would have been awarded if the case had been dealt with in the fast track.

How much will it cost?

The fee you will have to pay to the court will depend on the amount you are claiming. In certain circumstances you may not have to pay the fee.

If you are paying part or all of the fee, you may pay in cash, by postal order or cheque payable to HMCTS. For your own safety, do not send cash through the post. Credit and debit cards can only be accepted by Money Claim Online. If you use Money Claim Online the court fee will be calculated automatically for you.

Experts

Will I be able to use an expert to help prove my claim?

You will only be able to use an expert to give evidence if the judge gives you permission. You should not normally get an expert's opinion, or report, before the judge gives you permission.

If you want to use an expert, you should say so in answer to the question about experts in the allocation questionnaire. You must say what kind of expert you would like, for example, doctor, mechanic, engineer, builder, accountant. You should also say whether you would like the expert to give evidence in a written report, orally at the hearing, or both. If at all possible, you should try to agree with the defendant, or the defendant's solicitor, that you will use the same expert. This will save you both costs.

Will I be able to recover the cost of employing an expert from the defendant if I win?

If the judge has given permission for you to use an expert and you win your case, the judge may tell the defendant to pay something towards the cost. You should bear in mind, however, that the judge cannot allow more than £200. This may not cover the full amount of the expert's fees, especially if the expert writes a report and attends the court hearing.

How will I know if I have been given permission to use an expert?

You will be sent Form N157 (notice of allocation to the small claims track) which will tell you. It will also tell you when you should send a copy of the expert's report to the court (called 'filing'), and to the defendant. If your claim is worth over £10,000 but the judge has allocated it to the small claims track, you will be sent Form N160 (notice of allocation to the small claims track (with parties' consent)).

What costs might I be able to claim if I win?

Other costs you may be allowed include:

  • Any court fees you have paid
  • An amount of not more than £260 for legal advice if your claim included an application for an injunction (an order to stop someone doing something), or an order for specific performance (an order to make someone do something, for example, a landlord to carry out repairs
  • An amount of not more than £50 per day each for you, and any witness you may have for loss of earnings due to attending the court hearing
  • Any additional travelling and overnight expenses.

It is important to note that before going to court, court rules require you to think about whether alternative dispute resolution is a better way to reach an agreement. If you refuse to consider this, you may not get your costs back, or you may have to pay the other side's costs, even if you win the case.

Hearings

What else will the Form N157 (or Form N160) tell me?

It will tell you what other things you have to do to prepare for the final hearing. These are called 'directions'. For example, you may be told to send copies of all the documents you intend to use to prove your case to the court and the defendant 14 days before the hearing is due to take place.

The notice will usually also tell you the time, date and place when your hearing will take place, and how much time has been allowed for it. The time allowed is the total amount of time the judge thinks is necessary for both you and the defendant and your witnesses, if any, to put your case. It also includes time for the judge to ask questions, reach a decision and explain the reasons for that decision.

What if the hearing date is inconvenient?

What you can do depends on whether or not you wish to attend the hearing. If, for example, you wish to attend but for some good reason you cannot make the date given, you can apply to the judge for a later date to be set.

If you do not wish to attend for some other reason, for example, if the travel costs of getting to the hearing are high, you can ask the court to deal with the claim in your absence. In this case, you must write a letter to the court and send a copy to the defendant. Your letter should contain your claim number and the date of the hearing, explain that you will not be attending, and give the reasons why. You should also request the court to decide the claim in your absence using any written evidence you have provided for the court and sent to the defendant. The letter must arrive at the court no later than seven days before the hearing date. The letter will ensure that the judge takes into account any written evidence you have sent to the court and the defendant.

Will the judge always set a final hearing date at the allocation stage?

No, not always. The judge can decide to hold a preliminary hearing, or propose that your claim is dealt with without a hearing.

Why would the judge hold a preliminary hearing?

The judge would usually want a preliminary hearing if:

  • Your claim requires special or unusual steps to be taken ('special directions') which the judge wants to explain to you and the defendant personally; or
  • The judge feels that either you, or the defendant, has no real prospect of winning your claim, or defence, and wants to dispose of the claim as soon as possible to save everyone time and money; or
  • If your particulars of claim, or the defendant's defence, do not show any reasonable grounds for bringing the claim, or defending it.
What will happen if the judge wants to deal with my claim without a hearing?

The court will send you and the defendant a Form N159 (notice of allocation to the small claims track (no hearing)). The notice will tell you that the judge thinks that your claim can be dealt with without a hearing using only written evidence. The notice will ask you to tell the court if you object and will give you a date by which you and the defendant must reply. If one, or both, of you objects, your claim will be dealt with at a hearing. If you do not reply by the date given, the judge may treat your lack of reply as consent.

What should I do to prepare for the final hearing?

You should make sure you do everything the court said you must do within the time given. This is called 'complying with directions'. If you do not comply, for example, with a direction to send documents to the defendant, you may not be allowed to use them as your evidence.

If you have been told to send documents, including any expert reports, to the defendant and the court, do not use the originals of these documents. Send copies, but bring the originals with you to the hearing. Remember that you will only have a limited amount of time to put your case to the judge. You should assume that you will have slightly less than half the total time allowed for putting your case. Make sure that any documents you want to refer to are in the right order. It is also a good idea to write down the things you want to say. If you do this you will be less likely to forget something which is important and more likely to explain things in the right order.

If the judge has said that you can use a witness or an expert to give evidence at the hearing (rather than just their written evidence), make sure they know where the court is and when the hearing will start. Arrange to meet them at the court some time before the hearing is due to start.

Can I take someone with me to the hearing?

Yes. If you do not have a solicitor, you can take someone with you to speak for you. This person is called a 'lay representative' and can be anyone you choose, such as your husband or wife, a relative, a friend or an advice worker. If possible, the lay representative should not be a witness. Your lay representative cannot go to an appointment without you unless you have permission from the court.

Advice agencies cannot generally provide a lay representative to help you at hearings. If you are thinking of asking an agency, contact them as soon as possible and immediately you know your hearing date. They will tell you whether or not they can help. Some lay representatives may want to be paid for helping you at the hearing and you must make sure you know exactly how much this will be.

The district judge can tell a lay representative who misbehaves to leave the hearing.

Remember: You will have to pay for a lay representative yourself, even if you win the case, and you may wish to consider whether the amount of your claim is worth this. Lay representatives who charge for helping you may not belong to a professional organisation, and if you are not satisfied with their help there is nobody you can complain to.

Where will the hearing take place?

Small claims hearings will generally be 'public' hearings. A public hearing is one which members of the public can sit in on and hear the case. Your case will usually take place in the judge's room but may take place in a court room.

The reasons a judge may agree that your case can be heard in private - that is, closed to the public - include:

  • Where you and the defendant have agreed
  • Where the hearing takes place on site, for example, at your home or business premises because your claim relates to work done there
  • Where publicity would defeat the object of the hearing
  • Where the interests of a child or patient need to be protected
  • Where it includes confidential information
  • The court considers it is necessary in the interests of justice
What will happen at the hearing?

The judge can adopt any method of conducting the hearing which is fair. Generally, however:

  • The hearing will be informal
  • The strict rules of evidence will not apply
  • The judge need not take evidence on 'oath' (make you swear or affirm) that you are telling the truth
  • Can limit the time you and the defendant have to cross examine (put questions to) each other, or your witnesses
  • Can also limit cross examination to a particular subject or issue

At the end of the hearing the judge will tell you the decision reached (the judgment) and give brief reasons for it.

What will happen after the hearing?

After the hearing, court staff will send you and the defendant an order. The order, or judgment, will set out the judge's decision. If either you, or the defendant, had given notice to the court that you would not be attending, you will also receive brief reasons for the decision.

If I do not attend the hearing of the claim and I lose, is there anything I can do about it?

If you were neither present nor represented at the hearing, you may apply for judgment made at that hearing to be set aside and the claim re-heard. You must make the application not more than 14 days after receiving the judgment. Ask the court for a Form N244 (PDF) (application notice). The court will tell you when must come to for hearing of application before a judge.

The judge will only grant an application for judgment to be set aside if:

  • You had a good reason for either (i) not attending or being represented at the hearing or (ii) not giving written notice to the court; and
  • You have a reasonable prospect of being successful at a re-hearing.

If your application is successful and judgment is set aside, the court will fix a new hearing for the claim. In a straightforward claim the judge may decide to deal with the case immediately after the hearing of the application.

Appeals

Can I appeal?

If you lose your case and want to appeal against the judge's decision, you will need permission to do so. If you attend the hearing at which the decision is made, you can ask the judge for permission at the end of the hearing.

You must have proper grounds (reasons) to appeal. You cannot simply object to a judge's decision because you think the wrong decision was made.

If you decide you want to appeal you must act quickly. The time within which you must issue your appeal is limited.