This is a follow-up to Richard Renouf’s article on how flooring businesses should handle court claims from October’s issue of The Stocklists.
You’ve decided to defend the court claim that you’ve received, or maybe it’s the customer you’re claiming from. Once the appropriate form has been returned to the court, and within the deadline, the court will send out a questionnaire to each party. This enables the court to decide which process (‘track’) is suitable for the claim, what evidence and information the court will need to make its decision, and how long the hearing is likely to need.
If the value of the claim is below £10,000 (£5,000 in Scotland or Northern Ireland) the court has a simpler procedure that we commonly call the Small Claims track (‘Simple procedure’ in Scotland). If the claim is suitable for this, the process is much quicker and easier, so the parties don’t need to instruct lawyers but will need clear directions to enable them to prepare.
The questionnaire asks about how many witnesses will you want to give evidence and whether an expert witness is likely to be needed – someone completely independent of the parties and knowledgeable about the subject of the dispute, for example if the customer is alleging the goods are faulty. In some cases an expert report has already been obtained, so you can advise the judge, but the court might direct that the parties agree to find a suitable person who is acceptable to both sides whom they can engage as a ‘Single Joint Expert’.
The court considers all the information sent in by both parties and will either issue an Order for Directions or call the parties for a preliminary hearing (sometimes called a ‘Directions Hearing’) where the directions can be discussed and resolved in person. Whether the Order for Directions is sent out straightaway, as is usually the case with simpler disputes, or it is sent out after a preliminary hearing, this document is very important. It will state who can be used as witnesses and their witness statements must be sent to the other party and the court. It will state whether or not an expert can be used and set out the dates by which the parties must agree on and instruct a single-joint expert and the date by which the expert’s report must be submitted.
The parties may be instructed to try and resolve the dispute by mediation. This is a process in which an independent mediator attempts to resolve the dispute and reach a settlement. If the mediation does not achieve a settlement, the judge is advised the case did not settle. The court will then proceed to set a date for the case to be heard and will send this to both parties with plenty of notice.
On the day of a hearing, make sure you arrive at the court on time but be ready for a long wait as your case may not be called until later in the day and may even be bounced to a later date if things don’t happen as quickly as the court hopes.
The procedure for a hearing is simple. The claimant states their case and gives their evidence, all of which would have been sent in document form beforehand so the Judge is simply pointed to the key bits of information and will be ready to ask questions and then to allow the defendant to ask questions if appropriate. The defendant will then get to present their case and be questioned by the judge then by the claimant. Finally, each party will be asked to give a brief summary to the judge who will then give the judgement either straightaway or after a brief time to consider the matter in private. Occasionally the judge may send the judgement in writing several days later.
In my experience, courts are not biased towards consumers or against businesses. Judges are trained to look for honesty and fairness. Losing parties always feel disgruntled, but the matter wouldn’t have got that far unless they thought they were right, but as a veteran of many hearings acting as an independent expert and also acting on behalf of a business, I have a very high regard for the process, although I would recommend anyone to avoid litigation as much as possible. You may win the case, but lose far more in the longer term from the negative reaction of the other party.
Richard Renouf is an experienced customer service and flooring consultant and expert witness. He can be contacted via The Stocklists’ editor – lauren.mccarthy@kick-startpublishing.co.uk – and your questions may even find their way into future articles to help others dealing with similar situations. Please note that this article is not intended to be, or to be a substitute for, legal advice.