Why go to court?

If you are unable to settle your dispute any other way, you may decide to issue a claim through the small claims, county court or high court depending on the value of the claim. You can issue a claim for a variety of reasons:

• Someone owing you money
• Bad workmanship
• Damage to property
• Road traffic accidents
• Personal injury
• Goods not supplied

Should I still try and settle the claim?

Even though you might choose to go to court rather than use an alternative dispute resolution process, issuing a claim should always be your last resort. The court will expect you to have acted reasonably, such as by exchanging information and relevant documents about the dispute and to generally try to avoid the need for making a claim. For example, if you're owed money, you should write a letter to the person who owes it. Say how much they owe and what it is for, and what steps you have already taken to recover the money. You should also give them a final date for payment. Include a warning that you will issue proceedings in either the small claims, county court or high court if they do not pay by the date you give. Sometimes this warning will encourage them to pay and you will not have to go to court. Keep a copy of your letter and any reply.

Will I get my money?

It is important to consider whether the person, firm or company you're claiming from is likely to be able to pay. If they are any of the following, the court may not be able to help you get your money:

• Unemployed
• Bankrupt
• Have no money of their own
• Have no personal property and have nothing else of value belonging to them (such as a car) which is not hired or subject to a hire purchase or lease agreement
• Have ceased to trade
• Have other debts to pay

However, you may be able to get your money if you're prepared to accept small instalments over a period of time.

If the person or company is bankrupt, you will probably not get your money! You should contact the Insolvency Service at Fermanagh House, Ormeau Avenue, Belfast, BT12 8NJ (telephone: 028 9025 1441) to find out whether the person you're claiming against is insolvent. You need to tell them the full name of the person or company and their last address. They will tell you if the person is bankrupt, or if the company is in 'compulsory liquidation', which means that the company has stopped trading and probably has neither money nor other assets.

If the person you are claiming from has already been taken to court by others, and has not paid, you may also have little chance of getting your money! You can find out if a person, firm or company at a particular address has any unpaid court orders (called 'judgments'), by contacting Registry Trust Ltd. You will have to pay a fee to search for each name you are interested in.

Remember, even if you win your case, the court does not guarantee that you will be able to get the money you are owed.

Can I afford to go to court?

You will usually need to pay a fee to start your claim. The level of the fee will depend on the amount you are claiming. If the defendant does not pay once you have judgment, or says the money is not owed and your claim proceeds as a 'defended' (disputed) case, you may have to pay further fees. If you win your case, the fees may be added to the amount the defendant owes you. You may also be allowed some costs to compensate you for time lost at work. But this will not necessarily cover the total amount you have lost.

For a list of the fees, see Section 5 of the document Court fees.

What other expenses are there?

If the person you are suing (the 'defendant') defends your claim, you may need witnesses to help tell the court what happened. You may have to pay their costs, that is, their travelling expenses to and from the court and the money they would have earned that day; although, if you win, the court may tell the defendant to pay towards those expenses.

You may also need to obtain a report from an expert, for example, a doctor, mechanic or surveyor. You may also need to ask this expert to come to a court hearing to give evidence on your behalf. You will have to pay experts' expenses and charges. But, if you win, the court may tell the defendant to pay towards these.

If your claim is for a fixed amount of money (a 'specified amount'), and the defendant is an individual who defends your claim, your claim may be transferred to the defendant's local court. This may mean you having to travel some distance for any hearing which takes place. But, if you win the case, you may be able to claim your travel costs and something towards your lost earnings for that day.

If English is not your first language and you need an interpreter, the court will not be able to help you find one. You will have to do this yourself and also have to pay any fees the interpreter charges, though is you win your case they may be recoverable, but this is not guaranteed.

If you have a solicitor and your claim is for less than £3,000, you will usually have to pay for their help yourself, even if you win your case.

Enforcing a judgment

You should also bear in mind that although the court may make a judgment in your favour (this means ordering the defendant to pay you), the court will not automatically take steps to make sure that the money is paid. If the defendant does not pay, you will need to ask the court to take action called 'enforcing your judgment' (Enforcement procedure), for which you will have to pay a further fee.

Can I afford the time?

Many cases are not defended and the way in which claims for money (especially amounts of £3,000 or less) are dealt with is designed to allow you to do this yourself, with no, or only one, attendance at court. But bear in mind that if your claim is defended you will need to take time to prepare your case. For example, you will have to put together copies of all relevant documents or spend time getting statements from witnesses. You will probably be required to go to a court hearing and, even if you win the case, you may have to spend more time completing forms to enforce your judgment.

Will I need a solicitor?

As a general rule, if your claim is for a sum over £3,000 and particularly if it includes a claim for compensation ('damages'), it is advisable to seek the advice of a solicitor.

Other types of claims, for example, personal injury claims, can be more complicated and require professional help and advice no matter what the value of your claim is.

Remember that you also have to prove your claim. To do this, you will need to have some understanding of the legal basis for your claim and court procedures and provide evidence, for example, a report from a doctor, or statements from witnesses who saw your accident. You will also need to make a realistic assessment of the amount of damages you are seeking. It may save you time and money to first ask a solicitor or advice worker if it is worth your making a claim.

Procedures for making a claim

Small claims court

Procedure for debts under £3,000

Obtaining a judgment in the small claims court is a paper exercise, insofar as your case will only be heard if your claim is disputed, or a counterclaim issued or an unacceptable repayment proposal is made by the debtor.

Procedure

An Application for Arbitration is prepared and is sent to the relevant court or civil processing centre, together with the appropriate court outlay to be processed. Please note that this outlay is added to the debt if your application is successful and judgment awarded.

Your application will be endorsed by the court office with a return date, (usually 3–4 weeks thereafter), and a copy of the endorsed application will be sent to the debtor. You will receive a copy along with an applicant's information pack. The debtor must lodge a dispute/counterclaim or make payment prior to this return date or admit liability and request time to pay or make proposals for payment.

• Should the debtor pay: If the debtor pays the total amount claimed, applicable interest, together with the court outlay incurred, you should inform the court and request that your claim be withdrawn.
• Should the debtor fail to respond: A request for an Application for Default Decree should be made either by you or your solicitor, which you should complete and return to your solicitor or to the court office so that an application to the court, for judgment can be made. You or your solicitor will then serve the judgment on the debtor by first class post. The judgment will include the amount awarded by the court:
• For liquidated damages (i.e. where the debt is a fixed amount), this is normally the amount of debt outstanding
• For unliquidated damages (i.e. for damages), this is automatically listed before a judge for assessment and the amount will be confirmed by the judge based on evidence given at the hearing), together with the court outlay, and interest.

The judgment will be registered against the debtor at the Registry Trust, England and will affect the debtor's ability to obtain credit in the future. If the debtor does not make payment, you may wish to consider enforcement proceedings (see 'Enforcement procedure').

• Should the debtor lodge a dispute/counterclaim: Your case will be given a date for hearing before the District Judge. It is imperative that you attend this hearing and bring all paperwork to prove the debt. These proceedings are relatively informal and you can represent yourself at the small claims court, but you may also have legal representation. Should you require legal representation, win or lose, you will be responsible for paying the costs of your legal representative.
• Should the debtor lodge an Acceptance of Liability: This usually means that the debtor has admitted that they owe the debt, but are unable to make full immediate payment to settle the matter. Therefore, they are asking the court/you for time to pay:
• Should you not accept this offer, the matter will be listed before the District Judge for directions.
• Should you agree to the offer, a Stay of Execution will be attached to the Order. Please note that enforcement is not possible until this has been removed.
• Should the debtor then default in any weekly/monthly payments, the Stay of Execution can be removed by way of a signed affidavit being lodged in the court and a full judgment obtained and served on the debtor.
• If the debtor does not make payment, you may wish to consider Enforcement Proceedings (see Enforcement procedure).
• No legal fees are awarded by the small claims court.

County court

Procedure for debts over £3,000 - £30,000

Obtaining a Judgment in the county court can be a paper exercise, unless your claim is disputed.

Procedure

A civil bill is prepared, and then sent to the civil processing centre, together with a cheque for the court outlay of £155.00 (up to £5,000) or £185 (for anything over £5,000); it will then be stamped by the court and served on the debtor or their solicitor. The debtor has 21 working days after service in which to lodge a Notice of Intention to Defend.

• Should the debtor pay within 21 days of receiving the civil bill, the debtor will only be liable to pay you the principal sum (i.e. the amount sought in the civil bill), applicable interest and recoverable fees awarded by the court (these are known as 21 day costs which are prescribed by statute and are detailed in the court fees section). You remain liable for any solicitor's costs.
• If the matter is undefended, i.e. the debtor fails to respond within 21 days. An Affidavit of Debt will need to be prepared (usually by your solicitor) and signed by you. This must then be sworn in the presence of a solicitor. Once this has been done, all the relevant paperwork, together with a cheque for the court fee for marking judgment, will be sent to the court and a county court Judgment (CCJ) will be obtained. This option does not normally require your attendance at court. Once a county court judgment has been obtained, the debtor is liable to pay the principal sum, applicable interest and a higher scale of recoverable costs. Again you will be liable for you solicitor's costs.
• If a Notice of Intention to Defend is received, then the debtor has signalled an intention to dispute the debt and you will need to employ a solicitor if you have not already done so, in order to handle the court proceedings that will ensue. In this event, the issue of costs is one to consider very carefully, as fees for a contested matter are marked in accordance with the county court scale fees, which are significantly higher than for an undefended matter. If you were to lose a contested case, you would be liable for not only your solicitor's costs, but also the debtor's legal costs, which can be considerable. The solicitor will advise you of your options in the event that the debtor lodges a notice of intention to defend.

In a contested case, if you are successful, additional professional fees as appear in the county court rules will be added to the debt and may be recoverable from the debtor if recovery is achieved.

High Court

Procedure for debts over £30,000

A Writ of Summons may be issued in the High Court for claims for more than £30,000. Again, obtaining a judgment in the High Court can be a paper, exercise unless your claim is disputed.

Procedure

A Writ of Summons will be prepared by your legal representative, which is sent to the court together with a cheque for the court outlay. It will then be stamped by the court and your legal representative will serve a copy on the debtor or their solicitor. The debtor has 14 working days after service in which to lodge a Memorandum of Appearance.

• Should the debtor pay within 14 days of receiving the Writ of Summons, the Debtor will be liable for the principal sum (i.e. the amount claimed on the writ), applicable interest and recoverable costs.
• If the matter is undefended, i.e. the debtor fails to respond, we will send the relevant papers, together with payment for marking judgment, to the court and a High Court judgment will be obtained. This option does not normally require your attendance at court. Once a High Court judgment has been obtained, the debtor is liable to pay the principal sum, applicable interest and a higher scale of recoverable costs.
• If a Memorandum of Appearance is received, then the debtor has stated their intention to dispute the debt and at this point, if you do not already have legal representation you should obtain legal representation for the ensuing court proceedings. In this event, the issue of costs is one to consider very carefully as if you were to lose a contested case, you would be liable for not only your legal costs but also the debtor's legal costs, which can be considerable.

In a contested case, if you are successful, recoverable costs as set by the court will be added to the debt and should be recoverable from the debtor, if recovery is achieved. If the debtor doesn't pay, you may wish to consider Enforcement Proceedings (please see our 'Enforcement procedure' section).