Contract/Negligence Claims
You may be able to bring a claim if, for example, you have been supplied with faulty goods or a builder has carried out work badly. In some actions there may be a claim for breach of contract as well as a claim for negligence.
What is a breach of contract claim?
You may have a claim where you have entered into an agreement with someone else, either verbally or in writing and that person has not carried out their obligations under the agreement or has failed to carry them out to a proper standard. It will depend very much on the type of agreement that you have and the facts of your case to decide whether you have a good case.
What is a negligence claim?
A claim against another party for negligence can sometimes be brought together with a contract action. To show you have a claim in negligence the opposite party must owe you a duty to carry things out properly. If they have breached that duty and as a result you have suffered damage caused by that breach then you may have a claim.
Should I issue proceedings?
Before you instruct us to issue proceedings, you need to consider not only your chances of success of your position as you see it BUT also (i) our advice; (ii) the cost to you; and (iii) the ability of your opponent to pay any award and any costs to you.
When you have fully understood both the strengths and weaknesses of your position as a whole then is the time to instruct us to proceed. We are committed to achieving a practical and cost effective outcome which is satisfactory to you. Litigation is uncertain and below we set out some of the alternatives to going to Court. If however you decide to proceed with the case it is important that you are aware you are responsible for paying your own legal bills unless you have a Conditional Fee Agreement with us. This is the case even if the Court orders your opponent to pay your costs as you cannot be certain your opponent will be in a position to pay you. The Court now makes orders to punish parties for unreasonable conduct and also consider whether such steps taken were reasonable. It is likely therefore that the amount of costs that the other party is ordered to pay and does in fact will be substantially less than the amount we charge you. This litigation is likely to require a considerable element of personal time contribution from you and the time involved is not recoverable. If you are unsuccessful with the case it is highly likely that you will be ordered to pay the charges and expenses of your opponent as well as your own (unless you have a Conditional Fee Agreement and/or Legal Expenses Insurance).
What are the alternatives of going to Court?
We are committed to finding solutions for clients, which do not involve the risks, costs and delays involved in going to Court. In this section we set out the alternatives open to you as to how this dispute could be resolved without going to the County Court.
(a) Negotiations
Every effort should be made by you and if you prefer by us on your behalf, to resolve this matter by negotiation. (Agreeing a settlement with the other side). In that respect it is essential for you to have a clear and sensible understanding of what you want to achieve and for us to advise on the strengths of your case and the reasonableness of your position.
You may wish to try and see your opponent personally to try and negotiate a settlement or you may wish us to try and organise a meeting between your opponent and their lawyer and you and us to try and resolve matters.
(b) External Arbitration
Alternatively, it may be sensible to invite your opponent to agree to arbitration by an outside arbitrator. Although the arbitrator will require his fees paid by yourself and your opponent the overall costs will be reduced and the dispute should be resolved more quickly than proceedings through the Courts. In cases where the subject matter of the dispute is technical, such as a building or a car related dispute, external arbitrators often have the experience to enable them to resolve disputes more easily than the Courts.
(c) Mediation
It may be sensible to invite your opponent to agree to jointly appoint a mediator with a view to the mediator seeing both of you and your legal representatives and exploring the possibility of reaching a compromise. In this area there are now people who are prepared to undertake that task for a reasonable fee. Mediators are independent and try to encourage the parties to agree a solution.
As a result of the Civil Procedure Rules 1998, we are required to discuss matters with your opponents at an early stage in order to encourage negotiations to settle your claim and to ensure that both parties are better prepared, should it become necessary to commence proceedings.
The Litigation process should be an open process and parties will be expected to explore all reasonable approaches to negotiate or mediate. Failure to act reasonably may result in a party being penalised in costs.
The issue of Court proceedings is seen as a last resort. If Court proceedings are issued the Judge is likely to take control of how the case is conducted. The Judges have wide ranging powers and their decisions are unpredictable. However, they will enforce time limits strictly and will penalise either side if the Judge feels steps taken are unreasonable or out of proportion to what is at stake.
We may have to advise you against steps you wish us to take if we consider the Court would consider these steps inappropriate.
The evidence of witnesses:
This involves preparing a detailed statement by you and any other witnesses who can support your case. These could include independent witnesses such as ordinary members of the public, work colleagues or representative of statutory bodies. It is necessary to prepare written statements of this evidence, and these statements will usually be disclosed to your opponents and read by the Judge should your case proceed to a trial. It is important that these statements should be prepared as quickly as possible as they tend to be more readily accepted if prepared shortly after the dispute arose.
Documents
Documents include letters, memos, photographs and any other written or recorded items. These examples are not exhaustive and you may have other relevant documents.
You should provide all the documentation that you have. At a certain stage in the proceedings it is likely that you will be ordered to give disclosure of documentation. You will be required to disclose documents on which you rely and documents which adversely effect your case as well as those which adversely effect another party's case or even support another party's case. You will be required to sign a declaration to confirm that you have made a reasonable search and that you have disclosed all the relevant documents. It is therefore sensible at this stage to let me have any documents that you have relating to the claim so that I can decide whether they are relevant.
Who do I sue?
In contract claims you will sue the person you had the agreement with. In negligence claims you will sue the person who has caused the damage.
When must I lodge a claim?
The usual time limit for bringing a claim in actions other than those relating to personal injury is six years from the date of the breach of contract or negligence. In certain cases there may be different time limits and we will discuss them with you. If your claim is not brought within the proper time limit you will not be able to pursue the claim.
What is needed to issue Court proceedings?
Before proceedings can be issued it is usually necessary to have a detailed statement from you and any witnesses who support your case. In certain circumstances it may be necessary to obtain an experts report to decide whether you have a good case. In those circumstances it is usually helpful to obtain that report before starting the proceedings.
How are proceedings issued?
We will arrange to lodge with the Court a document which sets out the legal basis of your claim and sets out the damage that you have suffered. This document will be brief. All the detailed circumstances relating to your claim will be dealt with in a statement which is referred to below. Usually the Court will arrange for the documents to be sent to the Defendant or the Defendant's solicitors or representatives.
What happens next?
The other party then has 14 days from the date he receives the Court documentation to acknowledge receipt and, if they do, then they have a further 14 days to file a defence. A defence is a document which sets out whether the claim is disputed. If the claim is not disputed, we will be able to enter judgment on your behalf. We will then discuss with you how you might obtain payment of any monies due to you.
Where the liability is admitted but the amount is not
The Court will usually send me and your opponents a questionnaire to complete. This questionnaire has to be returned to the Court by the specified date usually 14 days after receipt. The Judge will consider the completed questionnaires and will allocate your case to the appropriate track (see below) or proceed to an assessment of damages hearing. Alternatively the Court may list the matter for a disposal hearing. Costs of a disposal hearing are at the complete discretion of the Court.
Small Claims Track
The Small Claims Track provides a simple and informal way of resolving disputes and you should be able to do this without the assistance of a solicitor. However, you may find that it is usual to instruct us to deal with certain elements of the case. The Judge will normally decide to allocate a claim to the small claims track on the basis of the following:-
1 The amount in dispute is not more than £5,000.00.
2 The case does not involve a lot of witnesses or difficult points of low.
If your claim is worth over £5,000.00 it is possible to ask the Court to deal with the claim on the small claims track but both parties must agree. If the claim is for more than £5,000.00 and is allocated to the small claims track the winning party will be able to claim costs (including solicitor's costs) against the losing party. There are detailed rules about costs which will be explained to you.
The Court Service provides a leaflet about the small claims track which you can obtain to give you further information.
Allocation of the Case to the Fast Track
Claims which are worth over £5,000.00 and up to £15,000.00 will usually be allocated to the Fast Track. There are set Directions for the Fast Track and usually a Court date will be given within approximately 30 weeks.
Allocation of the Case to the Multi Track
This is a Track for cases which are worth more than £15,000.00 and are likely to be complicated. The Directions given will vary from case to case and you will be advised of the position if your case is a Multi Track case.
Whichever Track your case is allocated to very strict timetables will be put in place for the progress of your claim. It is therefore very important that you respond to correspondence quickly and provide any information and where appropriate cheques for Court fees quickly. If the time limits are not complied with it is likely that the Court will make Costs Orders to penalise you or strike out your claim.
Will my case have to go to Court?
In most cases claims are settle before actually going to Court. We will discuss with you any offers of settlement that are made and will discuss the implications. If your case does proceed to a court hearing, then either our own advocate or a barrister, who specialises in court work, will present your case at trial. Usually a conference takes place before the hearing so that you can meet our advocate or the barrister in advance. It will be explained to you what will happen at the court case.
What about my costs?
We will explain to you the methods of charging and whether or not you should take out insurance cover. Usually if you are successful your opponent will be ordered to pay all or between 80-90% of your costs. However, in some circumstances your opponent may not be able to pay money due to you.
What we will need from you.
It is important that you provide us with full details of your case so that we can advise you properly. You should provide all the documents that you have in relation to the matter. If that is not provided then it may affect your chances of success.
What happens if I win?
If you win you are likely to be awarded some form of monetary compensation. Provided the other party has the ability to pay, it is usual that they will be given 14 or 28 days in which to pay the monies that are due to you. If that money is not paid within that time scale, we will advise you as to how you can try to recover that money. It is usual that if you are successful the other side will be ordered to pay your reasonable legal costs. However, you should remember that you are responsible to us for your costs and if you do not succeed in recovering the monies from the other party, (if for example they have no money) then you will still have to pay us.
What if I lose?
If you lose your case, you will have to pay our costs in dealing with the matter as well as those of any barrister who has done work on your behalf (unless you have a Conditional Fee Agreement with us). It is also possible that you may be ordered to pay your opponent's legal costs in the proceedings. The overall cost will vary from case to case.
How long will it take?
The length the case takes will depend on how difficult or complicated the case is. Once the Court proceedings are issued, if it is allocated to the Fast Track you should receive a Court date within approximately 30 weeks of the allocation. Multi Track cases will each have their own timetable.
Confidentiality
This firm must not reveal confidential information about your case to other people. However if someone is helping to fund your case such as an insurer we may be obliged to give details of your case to them.
Any questions?
If any of the points stated above are not clear of your wish to obtain further information, then we suggest that you write down the questions that you wish to ask us in readiness for your next appointment.
These notes are for information only.