A small claim will eventually be heard by a judge who will make a decision to resolve the dispute. In higher value and more complicated disputes, this is called a trial. In a small claim, it is simply called a hearing.
Usually, a district judge in a local County Court Hearing Centre will decide the outcome of the dispute. Those involved will be given at least 21 days’ notice to attend court. Occasionally, the judge may be able to make a decision based on the paperwork that has been filed with the court – but only with the agreement of those involved, and where the claim is very simple. In the majority of claims, the judge will want the claimant and defendant involved to attend .
A small claim hearing is more informal than other types of hearing. Parties will usually find themselves in a judge’s room rather than in a ‘formal court.’ The judge will just be wearing a suit, as will any legal representatives – no wigs and gowns. These hearings are meant to be accessible to members of the public without the need for legal representatives.
If a person needs to attend a small claims hearing, they are entitled to bring someone with them. This can be a friend, advisor or interpreter (lay representative) who is not legally qualified . The lay representative may be allowed to speak on behalf of the party provided that:
a) the party in the dispute to be resolved is actually present; andb) a decision is yet to be made by the judge.
The court can choose who is allowed to speak to the judge in small claims hearings.
The claimant and defendant will already have received instructions from the court about what they should do before the hearing. The usual procedure is that they deliver to the court, and the other party, copies of any documents that they wish to rely on in the hearing at least 14 days before the hearing. Original documents should always be brought to the hearing.
A very limited number of documents should be used in a small claim - listed for some types of claim in the Practice Direction (Appendix A). A person attending a hearing should make sure they have all of their documents and that they are in order and easily accessible when needed. A little time spent in advance will pay dividends when nervously trying to find a particular document in court.
Only documents referred to in the claim form, defence, any other court paperwork or witness statements, should be used in the hearing. Generally, there won’t be opportunity to ‘add in’ information at this stage.. The purpose of the hearing will be only to expand upon/clarify what has already been put forward for the judge to be able to make a decision. If any witnesses/experts will be attending, the court will already have given permission for this and they should be informed in advance of the time and date . If the hearing is delayed as result of late witnesses, this may affect the costs which are awarded at the end of the hearing.
Small claims hearings are intended to be informal and the judge will be very used to dealing with litigants-in-person who are representing themselves. The general rule is that hearings are in public unless the parties have agreed to it being in private.
The judge can ask any questions before allowing the parties to ask questions. He can also limit the questions, which are asked of any witnesses, to either a fixed amount of time, or to a specific subject or issue. This sounds rather complicated, but will be directed by the judge in the order he/she requires. There are no strict rules about the way the hearing progresses.
The hearing will usually be short, both parties having only a limited (generally the same) amount of time in which to make their points.
What if one party fails to attend at the hearing?
If the claimant fails to attend, it is likely that the claim will be ‘struck out’ – ie, it no longer exists.
If the defendant fails to attend, judgment will likely be in favour of the claimant who will usually be given an order for the defendant to pay him. If the defendant has good reason for not attending, he may, within 14 days of receiving this decision, ask the court to set-aside this decision and make time for another hearing.
If neither party attends, the court will strike out the whole claim.
Judgments and Orders
At the end of the hearing, the judge will make a decision (judgment). It will be short, spoken and to the point and will advise both parties who has ‘won’ the claim. The judge will also make an order – usually to pay money, as one sum or by instalments, to the other. This is an Order of the Court which must be complied with. Both parties will receive a written judgment and order within a few days of the hearing.
Assuming that the money is not paid straight away, the order will be registered in the Register of Judgments, Orders and Fines; this could affect a person’s ability to get future credit or loans.
The winning party does not have an automatic right to costs and, even where costs are awarded, they are limited and fixed and will have to be requested from the court. If that person has behaved inappropriately during litigation, they may be unable to recover any costs at all. Likewise, if a claimant loses, they may have to pay some costs to the defendant if he requests them.
Appealing against the decision
There is no automatic right of appeal; the court’s permission must be given for an appeal. A party must ask the court for this permission within 21 days. Appeals are only allowed where the court thinks the decision would be different in light of additional evidence or that the law was not applied correctly.
At this stage, legal advice should be sought.
To sum up, if you need to attend a small claims hearing as a party in a dispute:
- Get any original documents in order, in a file, in advance and know where to find everything in that file.
- Inform any witnesses of the date and time and remind them the day before.
- Wear a suit or be as smart as possible – it shows respect for the court.
- Arrive early – people are nervous when they are unused to court – 20 minutes early allows a little time to be calm.
- Security procedures - expect to have to open bags and walk through a scanner when entering the court.
- Ask the court staff where to go when you arrive.
- Address the judge as ‘Sir’ or ‘Madam’ unless instructed otherwise.
- Keep calm and follow the directions of the judge – loss of temper and an obstructive attitude will not assist anyone.
The hearing is about establishing the facts; it is not a time to allow emotions to overflow. Where parties have solicitors representing them, they should follow their advice and act accordingly. Remember, the majority of judges understand that courts can be intimidating.
Lecturer in Civil Litigation
DISCLAIMER: This article should not be regarded as constituting legal advice in relation to particular circumstances. This article is merely a general comment on the relevant topic.
Published on 16th April 2015
(Last updated 28th March 2018)