Litigants in Person Guide

Introduction

In England and Wales, a litigant in person is an individual, company or organisation that has rights of audience and is not represented in a court of England and Wales by a solicitor or barrister. Persons that cannot afford legal representation are usually 'litigant in person'.

Generally the guidance recommends looking for alternatives to 'litigant in person', but provides detailed information to support a litigant in person where this is the only option available.

The Law Society has guidelines for Lawyers and how they should deal with litigants in person. Lawyers are expected to behave professionally towards LiPs and is not allowed to take unfair advantage of the fact they do not have their own lawyer by, for example, misleading them or withholding information.

Foreword to ‘A Handbook for Litigants in Person’

Access to justice is a right not a privilege. That right has in the vast majority of cases traditionally been exercised by members of the public through the services of a lawyer. Over the last ten years there has however been an increase in the number of individuals who have, for various reasons, pursued and defended claims on their own behalf: they have been and are litigants in person (or self-represented litigants). It is anticipated that in the years to come the number of litigants in person will increase and perhaps will do so sharply.

In an environment where more individuals litigate on their own behalf it is incumbent on the judiciary, amongst others, to do what it can to help them navigate the civil justice system as effectively as they can. To that end this handbook, which is specifically aimed at those litigants in person engaged in proceedings on the multitrack, has been prepared by a number of very experienced Circuit Judges under the lead of His Honour Judge Bailey and has very kindly been produced by Linklaters.

It should not be forgotten that litigation is not easy, nor should it be embarked upon lightly. For those who do need to resort to the courts in order to enforce their rights, and do so without the assistance of a lawyer, the guidance provided in this handbook will be of real, practical assistance. It is clear and comprehensive. It is detailed and accessible. It will, I am sure, play an important role in rendering the civil litigation process less daunting and more accessible for those litigants who represent themselves. In that regard it will play an important part in helping to maintain our commitment to access to justice as a right available to all.

Lord Dyson, Master of the Rolls 11 December 2012

(Money Advice Hub has updated this guide October 2020)

Preface

This Handbook has been written by the six judges who comprise the Civil Sub-committee of the Committee of the Council of Circuit Judges; judges who, between them, have over 60 years experience of sitting on the bench.

In publishing this Handbook we do not intend to encourage litigants to represent themselves. Far from it. Civil litigation can be an exacting process and navigating the technicalities of the law and the rules of civil procedure is no easy matter. Many litigants in person approach their advocacy without forensic legal skills or objectivity, two essential qualities for a competent lawyer.

Nevertheless we recognise that there are increasing numbers of litigants in the civil courts who represent themselves. Legal representation can be very expensive, and the availability of civil legal aid has been severely limited in recent years. This represents a real problem for society and litigant alike. Ideally all disputes would be resolved amicably, if necessary with the assistance of a mediator. But inevitably some disputes cannot be settled and it is important that those involved in disputes should be able to have them determined by a judge in a civil court system which commands respect and which is readily accessible to all.

The overwhelming majority of legal disputes which do not involve the criminal law are determined in the county court. The county court judge will either be a circuit judge or a district judge. District judges determine the smaller claims (small claims or fast track claims) while circuit judges determine the larger claims (multi-track claims) and hear appeals from district judges.

As judges sitting across the length and breadth of the country, we are acutely conscious of the difficulties facing the litigant in person. Together with many other judges and lawyers, we agree that there is a real need for a Handbook for Litigants in Person. It is however very difficult to decide on the best format for such a book. Litigants in person vary a great deal in their abilities and attitude toward the court and the litigation process. This book is not a simple guide. For the litigant who wants no more than a short leaflet on the process as a whole, or individual parts of the process, such leaflets will be available at most county courts. This Handbook is designed for the litigant who is involved in a multi-track claim of some substance. It takes the form it does after much discussion and, in some measure, through the insistence of the Editor-in-Chief. Complaints and suggestions for improvement should be sent to him. The following points are important:

(1) The Handbook gives the reader a general overview of the whole process;

(2) Each chapter begins with ‘Headlines’; these are the most important points to note in the material covered by the chapter; iii

(3) The text gives references where appropriate to the Civil Procedure Rules; for a litigant involved in substantial court proceedings there is no substitute for reading the Rules themselves; (

4) The Handbook covers the entire court process and gives advice on how best to approach each stage of the litigation process. Advice chapters are written in the second person to give an immediacy to the advice offered. The remainder of the Handbook, which provides information rather than advice, is in the third person.

This Handbook is not comprehensive. It cannot possibly be. But the Handbook covers the most important material on which a litigant in person is likely to need help and guidance and it gives advice on the central areas of preparation and presentation which the authors hope will provide real assistance to a litigant on his own.

Litigants are bound to be apprehensive about a court hearing, but they should not fear appearing in court. The modern judge aims to be as helpful as is consistent with his or her position and the need to maintain the authority of the court. A judge has a duty to ensure a fair trial by giving litigants in person due assistance. Doing so helps to ensure that the litigant in person is treated equally before the law and has equal access to justice. But litigants in person do have to remember that the help and assistance a judge is able to give in the course of a trial or interim hearing can only go so far. The judge cannot give legal advice to a litigant in person. The judge must never put himself in a position where he might be thought by a neutral observer to be favouring one party over his opponent, even where the party concerned is a litigant in person and his opponent a barrister of many years’ standing, well able to look after himself and his client. Thus, the judge cannot become the advocate of the litigant in person, for the role of a judge is fundamentally different to that of an advocate. He must ensure a fair trial, and not afford an advantage to the litigant in person.

It is important for all litigants to see the litigation process as a whole. The process will culminate in a trial but the care with which a litigant prepares for that trial is every bit as important as the trial itself. The task of the judge in a civil court is to determine both the facts of the case and the law applicable to those facts. In determining the facts, the Judge may only rely on the evidence presented by the parties. A judge may not involve himself in the obtaining of evidence. It is simply not allowed. It is vital therefore that litigants present the evidence they need to succeed. Cases have been lost which might otherwise have been won because litigants have not thought carefully about the evidence they need, have not obtained that evidence, or have not presented it properly.

If there is a message in this Handbook it is this: If you are to engage in litigation you should take it seriously. You can always avoid litigation by compromise or, if necessary, by surrender. If you find yourself in litigation on the multi-track it will be hard work. But if it is worth doing it is worth doing well. This Handbook is here to help you.

Three further points. First, the English language has yet to develop unisex pronouns. We have used male pronouns where a pronoun is required and in this we ask the indulgence of our female readers. Secondly, we have used the time-honoured expression ‘litigant in iv person’ for it is widely used and understood, and it is the expression used by Parliament in the relevant legislation. Others refer to the ‘self-represented litigant’. It is a matter of choice. Thirdly, and most importantly, litigants should appreciate that judges are individuals. Some have their own particular way of doing things. We are confident that most judges sitting in the civil courts will agree with all the advice we have given in this Handbook. But you may appear before a judge who disagrees with individual points we have made. For the litigant, the most important judge is the judge before whom he is actually appearing.

The text incorporates the changes to the Civil Procedure Rules introduced by The Civil Procedure (Amendment) Rules 2013 (‘the Jackson Reforms’) and is up to date at 1 April 2013.

Finally we wish to thank Linklaters for their kind assistance, both practical and financial, in the publication of the Handbook.

HHJ Edward Bailey, Editor-in-Chief,

Central London Civil Justice Centre

HHJ Neil Bidder QC, Cardiff County Court

HHJ Peter Bowers, Teesside Combined Court

HHJ Alison Hampton, Leicester County Court

HHJ David Hodge QC, Specialist Chancery Judge,

Manchester Civil Justice Centre

HHJ Peter Hughes QC, Carlisle Courts of Justice

March 2013

(Money Advice Hub has updated this guide October 2020)

Contents

Chapter 1: Legal Help

1. Investigate, with a solicitor or advice centre, whether you may be eligible for public funding for your legal case.

2. Check your insurance policies in case you have legal expenses insurance which will cover your particular case.

3. Do not delay in seeking help and assistance. Visit our web page Free or Cheaper Legal Advice.

4. Investigate whether your case is of interest to a ‘no win no fee’ solicitor or whether you can enter into a Damages-Based Agreement under which a solicitor takes on your case for a share of your damages and without a fee if you lose.

5. Consider whether you may be able to obtain help and assistance from any of the wide range of agencies which offer free services, such as a local Citizens Advice, or Law Centre, or Specialist Advice Centre.

6. Representation in court may be available from the Free Representation Unit, the Bar Pro Bono Unit, or one of the Law Society Pro Bono schemes.

Introduction

1.1 This book is for you, as someone who has no first hand knowledge of law or legal procedure, when you find yourself involved in a legal dispute. It may relate to your house, your car, your job, some injury you have suffered or something totally outside your usual experience. You may want to start proceedings or you may be on the receiving end of a claim. Whether the amount at stake is trivial or substantial, if you are unfamiliar with the legal process, it will be a worrying experience. So, as soon as you find yourself in this situation, you should see what, if any, legal help you can obtain. You may be able to pay for some legal advice, at least in the initial stages, or you may be eligible for legal aid or other legal assistance, for example, from your trade union. This Handbook assumes you have explored those possibilities and that they are not open to you. But before deciding you are going to have to represent yourself, you should first see if there are any other possible sources of legal help.

'Do not delay – the early stages of such disputes can be crucial both in terms of the action that should be taken and the costs that can be saved.'

1.2 This chapter explores briefly what help you may be able to obtain where you do not qualify for publicly funded legal assistance.

A. Insurance

1.3 It is possible that you already have insurance to cover your legal costs in a wide variety of claims. ‘Before the Event’ insurance is available at generally acceptable premiums, but of course once the events giving rise to the dispute have occurred it is too late to obtain such insurance. However, do check your insurance policies. If you are involved in a road traffic claim your motor policy will often provide legal expenses cover where you want to bring as opposed to defend a claim. (Your insurer will defend any claim brought against you, provided you have kept to the terms of the policy.)

1.4 Most household insurance policies give public liability cover which will meet the cost of defending a wide variety of claims. Some household policies include ‘Before the Event’ legal expenses cover. Holiday insurance may cover the costs of claiming for a ruined holiday, and other types of specialist insurance may provide cover for legal claims arising in connection with the subject matter of the insurance.

B. ‘No win no fee’ solicitors

1.5 Now that Conditional Fee Agreements (CFAs) are legal there are many solicitors willing to bring claims, and sometimes defend claims, on a ‘no win no fee’ basis. This is a sensitive area. It is a difficult subject for the authors of this handbook to comment upon. There are many excellent solicitors who will provide a good service under a CFA. There are also, unfortunately, accounts of solicitors who fall short of a high standard, and who seek to impose too high a success mark-up or who compromise a claim too readily in order to secure a fee. For you as litigant it is very important that:

(a) you read the agreement carefully, and

(b) ask if there are any points which are not clear.

Check in particular that the agreement provides for a complete legal service in respect of the dispute, including legal representation at the hearing. Some agreements provide only for initial advice and preparatory work leaving it to you to find and pay for representation at the hearing. The Law Society, which has a regulatory responsibility for solicitors, publishes guidance on CFAs including a model agreement and client leaflet, and if you are at all uncertain as to whether you are being treated properly you may raise the matter with the Law Society.

1.6 If you do undertake litigation under a CFA you are likely to have to take out an ‘After the Event’ insurance policy. This insures you against having to pay the other party’s costs if you lose but it may well involve a very substantial premium.

Damages-Based agreements

1.7 From 1 April 2013 it will be possible for a litigant to enter into a ‘Damages-Based agreement’ (“DBA”) with a solicitor. Such agreements have been possible since 2010, but only in employment matters. They have now been extended to all civil claims. Not to put too fine a point on it, a DBA is a contingency fee agreement although based on the ‘Ontario model’ rather than an American model. Under a DBA the solicitor (and any barrister he instructs) will be rewarded by an agreed share of the litigant’s damages up to a limit of 25% in personal injury cases and 50% in all other cases, but only if the litigant wins. No fee is payable to the solicitor or any barrister instructed in the event that the litigant loses his case, but the litigant will usually have to pay court and other expenses. Where the litigant is successful and obtains an order for his costs to be paid by the other side, which is the usual order for a winning litigant, the costs that are recovered from the losing party are deducted from what would be the solicitor’s share of the damages, so that a litigant who agrees to pay his solicitor 50% of his damages may end up with rather more than 50% himself after payment is received under a costs order against the losing defendant.

1.8 The requirements for a valid DBA in civil litigation are set out in s58AA of the Courts and Legal Services Act 1990, (which was introduced by s 45 Legal Aid, Sentencing and Punishment of Offenders Act 2012), and the DamagesBased Agreement Regulations 2013. In summary a valid DBA must:

(1) be in writing;

(2) identify the legal proceedings (or parts of legal proceedings) to which the agreement relates;

(3) specify the circumstances in which the litigant has to pay any costs and expenses;

(4) explain the reason for setting the amount of the solicitor’s payment at the level agreed.

There is no requirement for the client to have independent legal advice before he enters into a DBA with a solicitor, and there is no requirement for a solicitor operating under a DBA to inform the other side of that fact.

1.9 For the prospective litigant claimant it will be of interest that he can instruct a solicitor without having to pay costs if he loses, albeit at the price of a 4 significant proportion of his damages if he wins. It is a possibility to consider before embarking on litigation without representation. However no litigant should ever forget that if he loses his litigation he will usually face an order to pay the costs of the other side. Careful thought needs to be given to this possibility and how it will be funded in the eventuality that it becomes a reality. If the litigant has no insurance cover or other means of meeting those costs he should consider an After the Event (ATE) insurance policy. Premiums under such policies are high, and now that the cost of an ATE premium cannot be recovered from the other side by a successful litigant this cost should be a material consideration in any assessment of the merits of proceeding with a DBA.

1.10 It is also the case that the 2013 Regulations leave a number of unanswered questions for solicitors, not least how an hourly rate is to be determined for an inter parties assessment of costs should the other side be ordered to pay the litigant’s costs. These are not matters which directly concern the litigant, but they may impact on the litigant’s negotiation of a DBA with a solicitor. In personal injury cases, where the solicitor is limited to a 25% success fee, there will have to be a potential award of damages well above £100,000 before most solicitors will agree to a DBA. In other cases it is likely that there will have to be a sizeable award of damages in prospect, at least £75,000 to £100,000, or there to be a straightforward case with only a few issues and limited documentation on disclosure, before a solicitor will agree to act on a DBA at all, let alone at a success fee of less than 50%.

D. Accident cases

1.11 There are ‘claims management firms’ who will ‘manage’ your claim for you, particularly where this involves personal injury. Some such firms are reputable, many are not. For the most part such firms are not interested unless you are a prospective claimant and your claim has excellent prospects of success. Such claims will usually be brought by a reputable solicitor or direct access barrister for a success fee of 10% or 20%, which is likely to be a better option than using a claims management firm.

1.12 Claims management firms are most prevalent in road traffic cases. They will aim to make their money by charging the other driver’s insurance company for towing away and storing your car, by carrying out your car repairs and by hiring a car to you at a high ‘spot-rate’. All this comes at no cost to you as the claimant motorist, with such risks as there are being carried by the claims management firm and their associated solicitors.

E. Local Citizens Advice

1.13 Legal advice may be obtained from a local Citizens Advice Office in over 3,500 locations in England and Wales. Citizens Advice Offices have a long history of helping litigants both before and during litigation. Many of them are able to call on volunteer solicitors to give more specialist advice. Find a local Citizens Advice

F. Law Centres

1.14 There are 41 Law Centres in England and Wales where solicitors and barristers offer free legal advice (but generally not representation) in most areas of the civil law. In addition there are a number of specialist advice centres throughout the country where volunteers with legal qualifications provide help and advice. These volunteers are unlikely to be able to take you all the way through the litigation process, but they will usually be able to offer you sound advice as to how to tackle your particular case. Find a Law Centre

G. Pro Bono (without charge) Lawyers

1.15 Many lawyers undertake work for nothing under ‘pro bono’ schemes. Advocate is the Bar's national charity has a large amount of barristers on its panel with a wide range of experience, including QCs. The Law Society has pro bono schemes under which solicitors offer their services for nothing, both with its Junior Lawyers division, Law Works, and in liaison with big City Firms who run their own pro bono scheme. An advocate to appear for you in court may be found from the Free Representation Unit.

1.16 These various pro bono scheme provide an enormous amount of free help and advice. In some cases such help is provided all the way through the litigation process. In others advice may be given on the legal background to your case and help given to set you on the right track in the litigation. The authors of this Handbook cannot endorse any individual scheme, even though in their practising days several of the authors were involved in one scheme or another. Whether you will find a helpful lawyer is always a matter of chance. But unless you are determined to manage without help we would suggest that you seek it, especially at the early stages of the case. Lawyers receive a bad press. Not all lawyers deserve it.

H. Legal ‘consultants’ and professional McKenzie Friends

1.17 There are lay people who offer advice and representation services to litigants in person in return for a fee. Some are reliable, many are not. Remember only a barrister or a solicitor can speak on your behalf in court. Sometimes an individual judge may permit a particular lay representative to address the court in appropriate circumstances, but this is a matter entirely for the judge in his or her discretion.

1.18 The McKenzie Friend. The original idea of the McKenzie Friend was that someone known to the litigant (hence ‘friend’) would provide help and support to the litigant during the hearing. The McKenzie Friend would be able, for example, to assist with documents or remind the litigant quietly of questions to put to witnesses or points to make to the judge in the closing address. It is now possible for a litigant to find a McKenzie Friend on the internet. The authors would not encourage you to use the services of someone you did not know before the litigation started to act in the capacity of friend, but we acknowledge that some advisers can provide useful help and assistance. Remember that there is no regulation of such ‘friends’.

I. Where to find the law

1.19 In very general terms there are practitioner texts, student texts, and more simple guides or ‘nutshells’. Practitioner texts are likely to be hard going for a litigant with no legal training, but some litigants manage them very well. Student books should be more digestible. They may seem daunting on first reading, but most are clearly written and the principles should fall into place with a little perseverance. Some public libraries carry legal text books, but do check the date of publication. You have to be wary of using a book which is more than a few years old.

Your local Citizens Advice or Law Centre may be able to guide you to an appropriate text, or you could seek the advice of an independent law bookseller such as Wildy & Sons [020 7242 5778] or one of the law bookshops to be found in many university towns who may have a second-hand textbook for sale.

Chapter 2: Mediation

1. Do attempt to settle your case if at all possible. You will save yourself a lot of hard work, anxiety and cost.

2. Try and settle the case directly with your opponent first. If you are unable to do so, consider mediation.

3. Help is available in finding a mediator from the Civil Mediation Council.

4. The mediation process is totally flexible. It can be conducted in a number of different ways, and you and your opponent can choose what suits you both best with the assistance of the mediator.

5. If the mediation fails you continue with (or start) your legal proceedings, often with the benefit of being better informed as to your opponent’s position on the issues and how he views the claim as a whole than you were before.

6. A litigant who refuses to engage constructively in mediation may find himself penalised in costs at the end of the trial.

A. Litigation a last resort

2.1 Issuing proceedings in the civil court should be considered as a last resort when you have exhausted other means of ending your dispute. The courts expect that parties involved in a dispute will make every effort to resolve their dispute before they make a decision to issue civil proceedings.

2.2 Attempts to resolve your dispute before you enter into civil proceedings might entail:

(1) Speaking directly to the person or a representative of a company with whom you have a dispute, in an attempt to settle some, or all, of the issues. Sometimes having these conversations can be difficult, but you should always try to remain calm even if you feel frustrated. Losing your temper will not help to resolve the situation.

(2) If initial direct conversations fail, you should be prepared to put your side of the dispute in writing. This would be particularly helpful when dealing with a company who may have their own customer complaints procedure. You should allow a reasonable amount of time for a response to be given.

(3) If you are unhappy with a service, or work that has been carried out on your behalf by company or a professional individual such as an accountant or tradesperson, it would be reasonable to allow them the opportunity to address your issues and, where possible, carry out such work as might provide a remedy to the dispute.

(4) There may be other organisations that could deal with your complaint more appropriately, such as an Ombudsman, or professional standards body such as the Law Society or one of the accountancy institutes, or a trade association. Having your dispute dealt with in this way may well be quicker and less costly than civil court proceedings.

2.3 If you are unsure as to your next step, you can obtain help and advice by contacting your local Citizens Advice Bureau or alternatively you can visit the Directgov website www.direct.gov.uk, where you can obtain further information in relation to solving disputes.

2.4 If you have issued proceedings and your claim has been allocated to the small claims track, you can request that your claim be referred to the Small Claims Mediation Service. You should do this by ticking ‘Yes’ to mediation on the small claims allocation questionnaire (Form N149). There is no equivalent service for multi-track and fast-track cases. However, in almost all cases the court will encourage mediation in two ways, using both carrot and stick:

(1) the carrot is the saving of costs (and sometimes the court will insist on the parties preparing forecasts of costs so that it is plain quite how much going to trial will cost) and the assistance provided by the Civil Mediation Council in providing a directory of accredited civil mediators and setting reasonable rates of charges, which may be found at: http://www.civilmediation.justice.gov.uk;

(2) the stick is the provision in the order of a direction in the following (or equivalent) terms: The parties do give serious consideration to using mediation with a view to reaching an early settlement. The parties will be expected to provide an explanation if mediation has not been attempted. Costs consequences may follow.

The effect of this order is that a party who eventually wins his claim, but who did not effectively engage in mediation when his opponent was prepared to mediate, may lose some or all of the costs he would ordinarily be awarded at the end of a trial.

B. What is mediation?

2.5 Mediation is a process by which opposing parties (and their advisers, if any) are brought together to engage in principled negotiation with the aim of finding a workable agreement between the parties and in this way avoid recourse to the Courts.

2.6 The mediation process is overseen by a mediator, who will ensure that all parties involved in the dispute have a chance to put forward their views and to hear what the other side has to say. The mediator is neutral. He does not take sides, neither will he make any attempt to judge who is right or wrong. The mediator focuses the parties’ energy on moving forward rather than dwelling on the rights and wrongs of the past. They are encouraged to engage in problem solving, developing options, and building agreement based on common interests.

2.7 You can find a mediator through the Civil Mediation Council, see above. Or you may prefer to find a mediator privately. There are a number of experienced mediators whose details can be found on the internet. Remember that mediation is a joint process. Both sides to the dispute have to agree the mediator, or the way in which the mediator is to be chosen, and both you and your opponent will have to pay a fee in advance to the mediator for his or her services.

C. How will the mediation take place?

2.8 This will be a matter of agreement between the parties and the mediator. A mediation can take place by telephone, or by e-mail, or in a meeting. Mediation by telephone will only be suitable for cases where the area of disagreement between the parties is limited. Sometimes the parties would rather have the mediator shuttle between them by phone or by e-mail, without the need to speak to each other directly. In other circumstances there can be a mix of joint sessions between the parties and the mediator, and closed sessions where a party can speak to the mediator one to one in confidence. The mediation process is flexible and designed to suit the needs of the parties.

2.9 It may be helpful to bear in mind that, when there is a negotiated settlement, the chances are that both sides have given way to some extent. You may end up feeling a little dissatisfied and wondering whether it might have been better to fight all the way in court. Such feelings are only natural, but the chances that it would have been better to spend months involved in litigation, spending the time necessary to contest your claim properly, and enduring the anxiety that almost inevitably accompanies civil litigation, are so slim that you can safely ignore them.

D. What happens if we do not settle the case at mediation?

2.10 The court will usually order a stay (a halt) to the proceedings of between one and three months to enable mediation to take place. If the dispute is not settled then you and your opponent need to contact the court and the proceedings continue in the ordinary way. You should remember that the mediation process is confidential. You may not tell the judge what you or the other party said during the course of the mediation. If one party does not engage constructively in the mediation that may be matter which may be brought to the attention of the judge at the end of the case when he is considering what costs order to make.

2.11 It may all have been a waste of time and energy. But often it is helpful to have gone through a mediation process even if the mediation did not end with agreement. Both sides should understand the issues more clearly, and be better able to see where the other side is coming from. It may be that during the litigation process, after documents have been disclosed and witness statements exchanged, it will be easier to settle the case in the light of what you know about your opponent’s position.

Chapter 3: The County Court

1. This chapter gives general background information about the county court and the three ‘tracks’, to one of which all cases are allocated.

2. There are important considerations as to costs that may be awarded in the allocation of your case to a track. This topic is also covered in chapter 7. If you believe that your case is a relatively simple one and really ought not to take more than one day to try, do not allow your opponent to persuade you that your case is a multi-track case. You should ask the judge to consider the matter and provide him with the information to reach an informed decision.


A. History and purpose

3.1 There have been courts in England called ‘county courts’ since Saxon times. The modern county court, however, was created by statute in 1846. The aim was to provide a growing population with a local court designed to adjudicate small scale disputes swiftly and less expensively than litigation in the courts in London. There are presently 215 county courts around the country, but not all these courts will try the larger (Multi-Track) cases. These larger cases tend to be tried in regional Trial Centres. The governing statute is now the County Courts Act 1984, with the county court’s jurisdiction amended by the High Court and County Courts Jurisdictions Order 1991.

3.2 Over time, the jurisdiction of the county court, always prescribed by statute, has been extended. In some areas of law, such as contract, tort (except defamation claims), sums recoverable under statute, and actions for the recovery of land, the county court’s jurisdiction is as extensive as that of the High Court. In other areas, essentially those coming under the equity jurisdiction exercised by the Chancery Division of the High Court, the county court’s jurisdiction is severely restricted, the amount of the court’s jurisdiction being limited to claims worth no more than £30,000.

3.3 The purpose of the county court remains that of a local court, providing much speedier justice than that available in the High Court, and at a lower cost. There 12 are now three separate types of proceedings in the county court, and the cost of litigating in the county court is very dependent on the type of proceedings in which the litigant is involved, see Section E below.

B. Civil Disputes

3.4 The county court has jurisdiction in three quite distinct areas of civil, in the sense of non-criminal, dispute. These may be described as civil, family and insolvency claims. Most county courts have a family jurisdiction, deciding disputes arising on the breakdown of marriage, and problems relating to children whether or not accompanied by divorce. A small number of county courts have an insolvency jurisdiction dealing with bankruptcy and the liquidation of companies with a share capital of less than £120,000.

3.5 This Handbook does not cover family or insolvency disputes. It deals only with civil disputes, such as claims relating to contracts, the ownership and possession of land, and torts, including personal injury claims arising out of road traffic accidents, and accidents at work.

C. Judiciary and staff

3.6 Cases at the county court are managed and tried by both Circuit Judges and District Judges. In the main, the bigger (multi-track) trials will be heard by Circuit Judges, some of whom also sit in the High Court exercising the jurisdiction of High Court Judges. District Judges are responsible for hearing the trials of smaller cases (both fast track and small claims) and for managing the multi-track claims before they reach a hearing. But these distinctions are not set in stone. Some District Judges are authorised to hear multi-track cases, and when there is no other work available Circuit Judges may hear fast track cases. In some courts, notably Central London Civil Justice Centre, most pre-trial case management of multi-track cases is by Circuit Judges.

3.7 In most instances, a litigant may appeal a decision made by a District Judge to a Circuit Judge. This is a true appeal. That is, the Circuit Judge does not hear the matter afresh. The litigant who appeals a decision of a District Judge has to show that the District Judge made an error of law or arrived at a decision which is outside the acceptable boundaries of decision-making in that particular area. It is necessary for an appellant to obtain permission to appeal a District Judge decision, either from the District Judge or the Circuit Judge.

3.8 The county court is staffed by employees of Her Majesty’s Courts and Tribunal Service. The staff are responsible for a wide range of services required to ensure that the court functions properly. County Court staff are responsible for issuing claims, taking in transfers of cases from other courts, issuing and processing applications, clerking the judges in their work in and out of court, preparing and serving orders, enforcing orders, and a wide range of other functions. A few senior staff undertake quasi-judicial work, in particular conducting examinations of debtors as to their means.

3.9 County Court staff are not lawyers, and it is no part of their duty to give legal advice. Conditions vary from court to court, but in the big cities staff tend to have to work in very difficult conditions. Litigants are entitled to expect a good level of service, but do have to remember that the county court is the poor relation in the court service and is greatly under-resourced. This puts a great deal of pressure on the court staff.

D. Trial by Judge alone

3.10 With certain specific exceptions all trials in the county court are heard and determined by a single judge sitting alone. The judge therefore sits both as judge, managing the proceedings in court and determining points of law, and as jury, deciding questions of fact.

3.11 Under the provisions of the County Courts Act 1984, s 66, an application may be made for a trial to be heard by both judge and jury where there is a ‘charge of fraud’ against the applicant for a jury or where there is a claim in respect of malicious prosecution or false imprisonment. A ‘charge of fraud’ involves more than an allegation of fraud. Such a charge only arises in cases of actionable deceit, and even then the court’s discretion to order trial with a jury is rarely exercised. In cases of malicious prosecution or false imprisonment, claims which are almost invariably brought only against the police, it is more common for the court to order trial with a jury.

3.12 An application for a claim to be tried with a jury must be made within 28 days of service of the defence [CPR 26.11]. A county court jury comprises eight jurors, and the jury operates by answering specific questions posed in relation to the essential issues of fact in the case. These questions are determined by the judge in consultation with the litigants.

E. County Court proceedings : Small Claims / Fast Track / Multi Track

3.13 All claims in the county court are allocated to a “track” under the provisions of CPR Part 26. There are three tracks. As its name suggests the Small Claims Track is for low-value claims. It is the normal track for any claim which has a value not exceeding £5,000. However, there are two exceptions to this general rule. First, where the claim is for damages for personal injury, not only must the value of the total claim not exceed £5,000, the value of the personal injury element of the claim should not be more than £1,000. Secondly, where there is a claim by a tenant of residential premises against his landlord requiring the landlord to carry out repairs, the cost of the repairs should not be more than £1,000 and the value of any other claim should not exceed a further £1,000.

3.14 The Fast Track is the normal track for any claim of a value greater than that for a Small Claim, but which does not exceed £25,000, and the trial is likely to last for no longer than one day with any expert evidence limited to one expert per party in no more than two expert fields.

3.15 All remaining claims are allocated to the Multi Track. These will be the more substantial claims brought in the county court.

3.16 Small claims track matters will almost invariably be heard by a District Judge who will act rather more as an adjudicator than as a judge. The proceedings will be informal, and the judge’s task will include a responsibility to elicit the evidence, and ensure that each party has called the witnesses who can give relevant evidence and has produced the documents which will assist the court to arrive at the correct decision. “He must also hold the ring and ensure that each party has a fair chance to present his own case and to challenge that of his opponent”. To do this the judge will have to enter the ring in a way which is rarely appropriate in other cases. This Handbook may give some general assistance to a litigant in a small claims track matter, but it is aimed primarily for the fast track and multi-track litigant who has to engage in far more formal legal procedure where the judge’s scope for assisting in the preparation and presentation of the case is severely restricted.

3.17 Fast track claims will usually be heard by a District Judge. Essentially these claims proceed in the same way as a multi-track claims. They are, however, the shorter, lesser value, claims which for those reasons will tend to be simpler to prepare and present. Some litigants will retain lawyers to represent them on fast track claims but a majority of litigants will represent themselves.

3.18 Multi-Track claims will usually be heard by a Circuit Judge or a Recorder. A Recorder will generally be a lawyer in practice, either a barrister or a solicitor, who has a part-time judicial appointment. A few Recorders are full-time judicial office-holders in other fields, such as an Employment or Leasehold Valuation Tribunal Chairman. There are District Judges who are also Recorders. A Recorder has the same status as a Circuit Judge. All Circuit Judges will have been Recorders for at least two years before being appointed full-time judges.

3.19 There are very important cost implications attached to the different tracks. The general rule in the small claims track [CPR 27.14] is that no costs may be awarded against the losing party except the fixed costs attributable to issuing the claim and court fees paid by the successful party, together with (a) reasonable travelling expenses for the successful party and his witnesses (b) loss of earnings up to £50 per day and (c) a fee for any expert called not exceeding £200 [27PD.7]. However, where the judge considers that a party has behaved unreasonably (eg bringing a wholly speculative claim or failing to comply with court directions) the party concerned may be ordered to pay the other party’s legal costs.

3.20 In fast track claims, costs are usually awarded against the losing party in favour of the successful party on a fixed scale. Where the value of the claim is not more than £3,000, the costs will be £485; for claims up to £10,000, £690; for claims up to £15,000, £1,035 and for claims up to £25,000, £1,650. There are additional provisions in the CPR for awarding further costs or no costs at all set out in CPR 15 Part 46, including a provision for awarding additional costs to a litigant in person who is successful in the litigation, whether as claimant or defendant.

3.21 A successful party in a multi-track claim may expect to be awarded his costs in full. Full might not actually mean that every penny of the successful party’s costs have to be paid. There are detailed rules as to costs which may be recoverable in civil litigation, and it is possible to have a further dispute over the costs in front of a specialist Costs Judge. It can be a very expensive matter to face an order to pay the other side’s costs in a multi-track claim.

Chapter 4: The Civil Procedure Rules

1. All civil trials are governed by the Civil Procedure Rules 1998 (“CPR”).

2. The CPR may be downloaded from a number of sites. It is not necessary or sensible to download the whole rules. There are some of them, many with practice directions. If you are unable to obtain a printed copy of the CPR the sensible thing is to download the rule, or rules, which relates to the stage of the case that you are at. The text is this handbook will refer you, as appropriate, to the relevant part of the rules. References are given in square brackets. [CPR 16.2] is a reference to a rule. [CPR 16PD.3] is a reference to a practice direction which supplements the rule.

3. The CPR [CPR 1] require all cases to be dealt with ‘justly’, and CPR 1 gives a broad definition of ‘justly’ for these purposes. The definition incorporates the concept of proportionality, and the fair allocation of the court’s resources. The court must deal fairly between the parties in each case, but must also have regard to the fact that there will be other parties in other cases competing for the court’s time and resources.

4. The court has wide management powers. Time limits should be kept, and sanctions might be imposed on a litigant who fails to meet time limits. But sanctions are rarely imposed for the first breach of a time limit.

A. Civil Procedure Rules 1998

4.1 The Civil Procedure Rules 1998 (“CPR”), which came into effect on 26 April 1999, provide a single body of procedural rules for all civil courts, namely the county court, the High Court, and the Court of Appeal, civil division. The CPR have the force of statute being made, and regularly amended, by statutory instrument under the power given by the Civil Procedure Act 1997. Significant amendments came into effect on 1 April 2013 as part of the ‘Jackson Reforms’, see Chapter 14.

4.2 The CPR were designed to effect a considerable change to the procedural rules previously in force, namely the Rules of the Supreme Court and the County Court Rules. In particular, the CPR imposes on the court (ie the judge) the duty actively to manage cases so as to further the overriding objective. Among the 17 more important aims of the CPR are (1) to ensure that litigation is conducted with the parties’ ‘cards on the table’, and (2) to introduce the concept of proportionality in the handling of a case. The court always aims to ascertain the true facts in any case to which to apply the correct legal provisions so as to arrive at the just result. But it has always been acknowledged that the court cannot always be confident that it has correctly ascertained the facts. The standard of proof in civil cases, ie proof on a balance of probabilities, shows the realism with which the task of ‘finding the facts’ is approached. Additionally the CPR requires the court to approach its task with proportionality in mind. If the cost of pursuing any aspect of a civil dispute is out of proportion to the benefit that may be derived from that pursuit, the court may decide that it is better not to incur the cost than pursue a particular point, even where to do so may well allow the court to arrive at a more reliable answer.

4.3 The CPR are divided into ‘Parts’, each with a number of rules relating to a particular topic and most Parts also have one or more Practice Directions which supplement the rules and assist in understanding how the rules are to be implemented. There are 79 Parts to the CPR, but a number of these parts deal with specific courts or specialist proceedings which will not concern the overwhelming majority of litigants. The CPR also contain a number of forms to be used at various stages of a civil claim.

4.4 The CPR are published, with editorial notes, by a number of legal publishers. The litigant in person may hear the Judge or lawyers referring to ‘the White Book’ (published by Sweet & Maxwell) or ‘the Green Book’ (published by LexisNexis) and there are other editions as well. Jordans publish the rules with editorial notes (in a Brown cover). All these books are very expensive. The CPR themselves can, however, be freely downloaded from the internet, for instance at www.justice.gov.uk/civil/procrules. The various forms which may be used to comply with the directions given by the court exercising its case management powers may also be freely downloaded.

4.5 It is important that a litigant obtains a copy of the rules which are relevant to each stage of the case in which he is involved. The rules are fairly straightforward to read and understand, and so can be followed by a litigant without legal assistance. If a litigant does have trouble in understanding any rule he can always ask the judge at the next Case Management Conference for help, or, if the matter is urgent and relates specifically to an Order made by the court, a litigant may write to the court manager and ask that he put any particular question before the judge for assistance in complying with the Order in question.

B. The Overriding Objective

4.6 CPR Part 1.1 provides that “These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost”. ‘Dealing with a case justly’ has always been the aim of the English civil court, but from 1 April 2013 this ‘overriding objective’ is given a new definition. By virtue of CPR Part 1.2 “Dealing with a case justly and at proportionate costs includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and (iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly; and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

(f) enforcing compliance with rules, practice directions and orders.”

4.7 It follows that the court must be concerned not simply with finding the true facts and correctly applying the relevant law. It has to be concerned with matters of expense, proportionality, and the need to take account of the demands imposed by other cases. From the perspective of the litigant in person ‘ensuring that the parties are on an equal footing’ does not extend to depriving the other side of its advocate, but the court does have to take into account the fact, when it arises, that one side has legal representation and the other does not. From 1 April 2013 ‘enforcing compliance with rules, practice directions and orders’ is given a new emphasis.

C. The Court’s Case Management Powers

4.8 These powers are very wide. They are set out in CPR Part 3 which is too extensive to discuss here. Essentially the court is given the necessary power to take an active part in the management of any case and, as appropriate, to tailor the directions it makes to the particular needs of the case.

4.9 The court manages a case by making Orders which are, in effect, giving directions to the parties as to what they have to do and by when. Sometimes these Orders are made in the course of an interim hearing (interim because it is not a trial or final hearing) with both parties present. An interim hearing may be ordered because one or other party has a particular application to make, but most Orders for directions are made at Case Management Conferences when the court calls all parties to attend a hearing to consider how the case is progressing and what further directions need to be made.

4.10 Sometimes the court makes an order on paper (often described as ‘boxwork’) without the parties being present. Such Orders may be made at the instance of the court or as a result of an application by one or other parties. Where a court makes an order without hearing the parties, the Order must contain a statement of the right of any party affected by the Order to apply to have it set aside, varied or stayed, [CPR 3.3(5)]. Usually the Order gives the parties seven days in which to make such an application. A litigant in person who wishes to challenge an Order should write to the court without delay. Judges are usually careful to ensure that boxwork orders made without a hearing are not unduly controversial, but no litigant should feel in the least intimidated about applying to vary or set aside an order made without a hearing. No judge should ever object to hearing a litigant make representations about the appropriate form of an Order, or, indeed, whether an Order should be made at all.

4.11 It is important to bear in mind that directions made in the course of preparing for trial may have serious ramifications at trial. Litigation is hard work, and should be seen as such. Where the court orders a Case Management Conference the time may not be convenient, and it is always open to any party to ask the court for a different hearing time. But the court cannot always accommodate such requests. A party to litigation should always do his utmost to attend interim hearings, and do so having reviewed his papers so that he can answer any question about his case put to him by the judge.

D. Time Limits and sanctions

4.12 All Orders for directions should come with time limits, and a good order will specify both the date and the time of day by which any direction is to be complied with.

4.13 Courts do take time limits seriously, and there are a range of sanctions available to the court to punish a litigant who does not comply with a time limit. He may, for example, be precluded from arguing a particular issue, or calling particular witness evidence, or part of his claim for damages may be struck out. The most serious sanction of all is to strike out a claim in its entirety where a claimant acts in breach of a court order, or to strike out a defence and so allow a claimant to have a judgment without a trial where a defendant is in breach of a court order.

4.14 However, to the dismay of some litigants in person who find that the other side does not comply strictly with any particular time provided for in a direction, it has been the convention not to impose a sanction for the first breach of a court order. The more usual approach is for the court to make a second order requiring a direction to be carried out but this time spelling out the sanction that will apply if this second Order is not complied with. These Orders are often called “unless” orders, because they are given in terms that unless the party complies with the order a particular sanction will apply. From 1 April 2013 the judges have been told to be stricter with litigants than has been the case in the past. It is far too soon to see what impact this will have on the enforcement of orders. Judges will often be in a difficult position. Rigorous enforcement of orders may actually lead to increased costs, which is the direct opposite of the stated aim of the April 2013 changes to the rules.

4.15 Even where a sanction is applied it is open to a party to apply for relief from sanctions [CPR Part 3.9] (see 9.18). Such an application must be supported by evidence, usually in the form of a witness statement, which should explain why the party failed to comply with the Order and why, if it be the case, that the application for relief from sanctions was not made promptly. Whether the court will then grant relief, or do so on terms, depends on a consideration of all relevant circumstances and in particular those spelt out in CPR Part 3.9(1).

4.16 Time for complying with directions is almost always given in days. Not every day counts as a day for these purposes. The rule for computing time is at CPR Part 2.8. A day means a ‘clear day’. That means that the day on which a period of days begins is not counted neither, if the end of the period is defined by reference to an event, does the day on which that event occurs. Where a time period is five days or less week-ends and bank holidays do not count.

4.17 The court’s case management powers enable it to extend or shorten any time period, even where an application for extension is made after the time has expired.

E. Chancery, Queen’s Bench, Mercantile and TCC Guides

4.18 In the High Court, the Chancery and Queen’s Bench Divisions and the specialist courts (including the Commercial Court, and Technology and Construction Court (‘TCC’)) publish guides as to how particular aspects of litigation in those courts should be conducted. Neither the Chancery Division nor the Queen’s Bench Division Guides have direct application in the county court. The litigant in person may, however, encounter references to these Guides, which in many respects give very useful guidance which could helpfully be followed in the county court, and they are mentioned for this purpose. The Guides can be freely downloaded from the www.justice.gov.uk website.

4.19 A litigant in person may find that his case is in a Mercantile List or a Technology and Construction List in the county court. In such a case the rules specifically relating to these courts, Mercantile Court CPR 59, TCC CPR 60 will apply to that case. The TCC has its own Guide and this will apply to county court cases in a TCC List.

Chapter 5: County Court Fees

1. Fees are payable both a start of a claim and at various stages throughout the claim.

2. Litigants in receipt of Universal Credit, Income Support, Pension Guarantee Credit, Jobseeker’s Allowance, and Working Tax Credit are exempt from fees provided they are not also in receipt of Child Tax Credit.

3. Litigants on low incomes and litigants who can show that payment of a court fee would involve undue hardship may also be eligible for remission or exemption from fees depending on a means test.

4. A litigant who is subject to a Civil Restraint Order requires the permission of a High Court Judge to apply for fee remission.

A. Court Fees

5.1 Court fees are payable on issue, ie at the start, of a claim, and that includes the start of a counterclaim or a third party claim. With money claims, the level of the issue fee will depend upon the sum claimed. Accordingly the sensible course for a claimant is to ensure that his claim is limited to the top of the band in which it falls. If a claim is issued online (Money Claim Online or MCOL) the fees are a little lower than where the claim is used at court. Non-money claims attract a fixed fee, with possession claims on line (PCOL), which can be used only for possession claim arising on rent arrears, attracting a lower fee than other cases.

5.2 Fees are also payable:

(i) when a case is allocated to one of the three ‘tracks’;

(ii) when an application is issued for an order during the interim stage of the claim, ie before the trial hearing;

(iii) when the pre-trial checklist is filed;

(iv) for the hearing; and

(v) for any assessment of costs after the hearing.

After judgment, further fees will be payable for any appeal against the judgment or for using any of the different methods of enforcement of a judgment.

5.3 Parliament has made civil litigation an expensive business. The levels of fees are set out in secondary legislation, County Court Fees Orders, and are regularly increased. HM Courts & Tribunals Service publish a leaflet, EX50, which will give the fees currently in force. Details of the fees payable can always be found at www.justice.gov.uk/guidance/courts-and-tribunals/courts/fees .

5.4 During the interim stage of the claim, no fee is chargeable for a Case Management Conference or Pre-Trial Review. A fee for a specific application may be avoided if the litigant waits to make his application at a Case Management Conference, but he must remember to give good advance notice to the other side and to the court that he will be asking for specific directions from the court at the Conference so that the other side is not caught unawares and the court allows sufficient hearing time.

5.5 A refund of a hearing fee is available where the case is settled and the court is notified of the settlement. The amount of the refund depends on when the court is notified of the settlement. More than 28 days before the hearing 100% of the fee is refunded; between 28 and 15 days, 75% of the fee; and between 14 and seven days, 50% of the fee. If the court is notified fewer than seven days before the hearing there is no refund.

B. Fee Exemption

5.6 For less well-off litigants there is the possibility of fee remission. There are three concessions. Under concession 1 there is a full remission of court fees if the litigant is in receipt of any one of four means-tested benefits, income support, income-based jobseeker’s allowance, state pension guarantee credit or working tax credit where the litigant is not in receipt of child tax credit. Under concession 2 there is a full remission of court fees if the litigants annual gross income is under certain limits, the figure depending upon the number of children living with the litigant. Under concession 3 there is a partial remission of fees based on a means test. The details of these concessions may be found in the HMCS leaflet EX160A. More information on fee remission is available online at www.hmctsformfinder.justice.gov.uk

5.7 A ‘vexatious litigant’, that is a litigant subject to a Civil Restraint Order, may not apply for fee remission without the permission of a High Court Judge.

5.8 A litigant applying for fee exemption has to complete form EX160. This is processed by a court officer. If the litigant does not agree with the officer’s decision he may appeal in writing to the Court Manager. A final appeal lies from the Court Manager to the Area Director.

Chapter 6: The basic structure of litigation

1. To bring a claim, the Claimant must have a ‘cause of action’ recognised in law.

2. If a Defendant wishes to challenge the Claimant’s claim, he must raise either issues of fact or issues of law or both. Most cases involve only issues of fact.

3. It is essential for you as a litigant to identify the issues of fact in your case so that you can concentrate on what is really important in your case.

4. The court will sometimes direct parties to prepare a list of issues. You should welcome such a direction, because you will then see what your opponent considers to be the issues, and, possibly, the judge may make helpful observations about what appear to be or appear not to be issues in the case.

A. A cause of action

6.1 To bring proceedings in a civil court, the claimant must have a claim against the defendant that is recognised as being enforceable in law. To be successful in the proceedings the claimant must have a good ‘cause of action’ against the defendant. The cause of action is the entire set of facts that gives rise to an enforceable claim.

6.2 There are two elements here. First there must be a claim that is recognised as being enforceable in law. English law recognises a wide variety of claims, but not everything which causes injury, loss or annoyance to another will constitute a valid claim. The claimant must satisfy the court that his claim is one which is proper to bring within the recognised principles of the law.

6.3 The second element is the factual basis of the claim. To take two examples. Where a person breaks an agreement he has with another he may have to pay compensation (damages) to that other person (the innocent party). Or where a person who is under a duty to act with due care fails to do so with the result that another person suffers harm, a claim may be made by the victim of the harm. It is for the claimant to establish all the essential facts that go to make up that valid claim.

B. Issues of law

6.4 ‘Issue’ in this context means a matter on which the parties disagree. An ‘issue of law’ is where the parties to proceedings have a dispute as to any aspect of the law or 24 its application in relation to their proceedings. Many cases proceed without giving rise to issues of law. Where, for instance, the claimant is a pedestrian who claims that he was crossing the road at a light-controlled junction when he was hit by a car driven by the defendant through a red light, it is most unlikely that an issue of law will arise. The legal claim will be in the tort of negligence, for the law recognises a duty on all drivers to exercise reasonable care to avoid causing damage to anyone else who is using the road at the same time. If a driver goes through a red light and injures a pedestrian who is crossing the road, there is little scope for arguing the legal basis of the claim. The driver may defend the claim on a factual issue, eg the light was, in fact, green so that he was crossing the junction perfectly reasonably when the pedestrian ran out in front of him, but there will be no legal issue.

6.5 But the above is a simple example and the law behind any particular claim may not be so straightforward. Before a claimant starts a claim, he needs to satisfy himself that he has a claim recognised in law. A defendant is entitled to challenge that claim either on the basis that it is not a proper claim in law or that it does not apply to the facts of the claim being brought. A defendant challenging the legal basis of the claimant’s claim in either of these ways raises a ‘legal issue’ as to the validity of the claimant’s claim.

6.6 This can be a daunting prospect for some litigants in person. The law can be technical and can sound even more technical than it is. Lawyers, in common with most other professionals, use shorthand phrases that may take some understanding. But for the most part the ‘law’, in the sense of what makes up a valid claim, is not difficult to understand. It is convenient to divide the law into specific areas giving rise to valid claims, the most common being contract, tort, land law, and trusts. Anyone wishing to research whether he has a valid claim will find that most text books will cover defined areas of the law, for the law is too vast an area to be conveniently covered in one volume. Once the correct area of law has been identified, it should be possible to identify the part of that area of the law which covers the facts of any individual case.

6.7 Each valid legal claim may be divided into its ‘elements’. Probably the most common claim brought in the courts is in the tort of negligence. This claim may be divided into three elements, namely:- (1) a duty owed to the claimant by the defendant; (2) a breach of that duty by the defendant; and (3) damage recoverable in law caused to the claimant by that breach. The claimant must establish each of the three elements. The defendant may challenge any or all the elements. He may challenge the duty alleged by the claimant and assert that the law does not recognise that a person in the defendant’s position owes a duty to a person in the claimant’s position. This will, essentially, be an issue of law but the facts on which the issue is decided may be important, so there may be an issue of mixed law and fact. Whether or not a defendant has acted in breach of a duty he owes to the claimant will usually be an issue of fact. But with the third element, that of damage, the law has restrictions on the scope of damage that may be claimed in any particular circumstances. So issues of law may arise in connection with damages.

6.8 It is not possible in this Handbook to cover the law. That has to be found in textbooks. Please see the comments made in paragraph 1.19.

C. Issues of fact

6.9 An issue of fact, that is a dispute or disagreement as to the actual facts arising in a claim, is an easy concept to understand. Issues of fact are the very stuff of courtroom dramas. They are the building blocks of any case. What is very important for the litigant, however, is to have clearly in mind those factual issues which are relevant to the determination of the case, and those that are not. A litigant who spends time and effort disputing facts which are not relevant to the decisions which the judge has to make can annoy everyone by wasting time. But, more importantly for him, the litigant who makes a great song and dance about facts which are not relevant to the determination of the case may end up by masking those facts which are helpful to his case.

6.10 Which facts are relevant and which are not will depend on the circumstances of the individual case. The colour of the clothes worn by a claimant pedestrian in a road traffic accident case may have no bearing at all on the defendant’s driving. But if the accident happened at night time and the claimant was wearing very dark clothing, the colour of the claimant’s clothes may become extremely important. Where the driver was planning to go after he had crossed the junction where the accident happened is often quite irrelevant to an assessment of his driving. But it may become highly pertinent if the driver was lost and paying more attention to his general surroundings and less attention to the road ahead than he should have been. Or he may have been late for an appointment. The litigant has to use his good sense as to what is and what is not relevant in his particular case. Furthermore the litigant should always be ready to accept that, as a case proceeds, an issue of fact which seemed very important to him before the trial may turn out to be of little importance, and vice versa.

6.11 It is always important to identify the essential issues of fact before the trial begins. That is the purpose of pleadings (statements of case), see chapter 8. When the pleading stage of the claim is completed, it should be possible to work through the pleadings and identify all essential issues of fact. A good litigator will identify all the essential issues of fact shown on the pleadings so that he can:

(1) ensure that he discloses all documents that bear on those issues;

(2) consider what witness or documentary evidence he may produce at trial to support his side of the various issues; and

(3) deal with each issue thoroughly in his witness statements.

6.12 Judges regularly direct litigants to prepare and file a list of issues. See this as a helpful direction. It will make you think about the issues you are raising. It will also enable you to learn what your opponent considers to be the issues in the case. Because it is helpful to the parties and judge alike, a judge at a Case Management Conference or other interim hearing may consider the list of issues with the parties and possibly make observations which may help you add to or refine your list of issues. If the case management judge in your case does not direct a list of issues, and you would prefer that he did, do not hesitate to ask for such a direction.

Chapter 7: Dealing with the issue of proceedings

1. Before embarking on proceedings it is essential that a prospective claimant not only notifies the prospective defendant of his claim, but also provides sufficient information about that claim to enable the defendant to make an informed decision as to how best to proceed. A defendant who believes that he has an answer to the claim should also exchange information with the claimant, so that both sides can properly assess where they stand in relation to the proposed claim.

2. Where it is apparent that there is a real claim which is disputed on a proper basis both parties should explore the possibility that a compromise may be achieved through mediation or some other form of alternative dispute resolution.

3. Before you start proceedings for a money sum do consider whether the defendant will be able to pay. You will never know for certain, but beware the risk of throwing good money after bad.

4. Proceedings may be started under Part 7 (Form N1), or, where there is no substantial dispute of fact, under Part 8 (Form N208). If in doubt the claimant should start under Part 7. The forms may be obtained from any County Court office or by downloading the form at www.hmctsformfinder.justice.gov.uk. The forms are accompanied by guidance notes. These notes need to be read carefully.

5. The relevant form needs to be completed on paper unless the claim is simply for a money sum against no more than two people, when it may be completed on line at www.moneyclaim.gov.uk.

6. An issue fee will be payable depending upon the value of the claim.

7. All county court claims are now issued at a central national court centre in Salford. Once a defence is received, the parties are sent an ‘directions questionnaire’ to complete and return to a local court. This is usually the court covering the area in which the defendant resides.

8. A defendant who is served with a claim form has 14 days to decide whether he will admit or defend the claim in whole or in part and return that part of the form which states his intention.

9. Once a case has been sent to a local county court, a judge will allocate the claim to one of three ‘tracks’: the small claims track, the fast track, or the multitrack. This allocation is based on the replies to the Directions questionnaires that are sent to all parties. The litigant should complete his questionnaire carefully. Allocation has very considerable implications for the case, and if a litigant is concerned that the case has not been correctly allocated he should apply to the court for a re-allocation.

10. The court will usually serve the proceedings on the defendant. Once a person is a party to proceedings he must provide an address for service. All documents served during the proceedings must be served at this address, whether personally, or by first class post, or the DX mail and courier service, or (only where the litigant agrees) by fax or e-mail.


A. Before starting proceedings

7.1 Explore alternatives to proceedings. Litigation can be very expensive. It should be used only as a last resort when other possible avenues to resolve the dispute have been tried and failed. The Court encourages this approach by means of ‘pre-action protocols’. Every prospective litigant should go through a pre-action stage in which he attempts to reach a compromise with the ‘other party’ even where the dispute may have been brewing for some time and the respective parties have apparently adopted entrenched positions. For many (sensible) people it is one thing to say “see you in court”, but quite another to go through the whole litigation process with the time, expense, and perhaps above all, stress, involved.

7.2 Before starting proceedings the prospective claimant should send a letter to the prospective defendant giving full details of the claim and specifying a reasonable period in which to respond. This principle is reinforced by specific pre-action protocols for different types of claim. There are ten protocols in total. These protocols form part of the CPR. They cover areas such as personal injury, low value road traffic accidents, professional negligence, building disputes, and housing disrepair claims. The time to allow a potential defendant to respond varies from 15 working days for low value road traffic accidents up to three months for personal injury claims. The protocols are high-minded, very lengthy, over complicated and, essentially, counter-productive. But they are part of the Rules and should be read and followed by lawyers, although most judges will not expect close observance by litigants in person.

7.3 The basic principles behind pre-action protocols are, however, sound and should be followed by every claimant. Failure to follow these principles may have serious costs consequences. These principles are that before proceedings are started the parties should:

(1) exchange sufficient information about the matter to allow them to understand each other’s position and make informed decisions about settlement and how to proceed; and

(2) make appropriate attempts to resolve the matter without starting proceedings, and in particular consider the use of an appropriate form of alternative dispute resolution (‘ADR’) (see Chapter 2) in order to reach resolution.

7.4 Prospective litigants should tailor what they do to comply with these principles to the circumstances of their particular case. There is no single approach to be adopted in every situation. But at the very least the Judge will expect to see that before starting his proceedings the claimant has explained to the defendant in clear terms what his claim is and why he is bringing it. This is usually done in a ‘letter of claim’ which contains:

(a) a clear summary of the facts;

(b) all allegations of fault (whether breach of contract, breach of duty, or other ‘fault’);

(c) a statement of the sum claimed or the injury and losses suffered by the claimant with an indication of the figure for the compensation which will be claimed; and

(d) (in cases where it is clear that there are important documents) an offer to provide copies of documents.

The prospective defendant should be given a proper time to respond. This should usually be in the region of four weeks. If there is no response it is sensible to send a chasing letter before finally starting proceedings. When the defendant does respond substantively, the Claimant must consider that response. The Judge will expect the Claimant to write a further letter explaining why he does not accept the response, if that is the case. The important thing is that the parties engage on the dispute; they should not simply trade insults.

7.5 Having exchanged information the parties should then consider ADR. No proceedings should be started while the possibility of settlement is still actively being explored.

7.6 If settlement talks fail, or the prospective defendant refuses to engage in such talks, you will be left with no alternative but starting proceedings. This will be time consuming and very possibly nerve-wracking. Before you start do consider whether you will be able to enforce any judgment against the defendant. It would be a disaster if after all the hard work you obtain a judgment and then find that the defendant has no means to pay. Do what you can to satisfy yourself that the defendant is worth suing.

B. How to start proceedings

7.7 The procedure: Proceedings are started by the issuing of a Claim Form. Most proceedings will involve significant factual disputes. They are known as “Part 7 proceedings” and the relevant form for Part 7 proceedings is Form N1. There are some proceedings in which there is no real factual dispute, but a decision is needed from the Court. These are known as “Part 8 proceedings”. Although less common than Part 7 proceedings a wide variety of cases may be started as a claim in Part 8 proceedings (a ‘Part 8 claim’). Examples are cases relating to probate, the administration of trusts, applications under particular statutory provisions and some landlord and tenant claims. The relevant form for Part 8 proceedings is Form N208. Part 8 proceedings are specialist in nature and rarely suitable for used by a litigant in person who is not an experienced lawyer. This Handbook assumes that as a litigant in person you will either be bringing or defending a Part 7 claim.

7.8 You may obtain Form N1 from any County Court office or by downloading the form at www.hmctsformfinder.justice.gov.uk. The forms are accompanied by guidance notes. Read these notes carefully. They explain how the forms should be filled in. The forms also provide information for the defendant, explaining the process and what he needs to do to admit or defend the claim.

7.9 Chapter 8 of this Handbook provides guidance as to what you should include in the Form N1 and the need in addition for Particulars of Claim.

The Claim Form sets out in short form the nature of your claim and should state clearly what the claim is for, that is what sum is claimed or what other remedy is sought. In some cases however, eg claims for compensation for personal injuries, it may not be possible to specify the exact amount of the claim. Instead, what should be stated is the maximum amount the claim is limited to, eg £50,000. The figure should be a realistic estimate of the upper limit of the claim. It will also, incidentally, determine the size of the issue fee the claimant will have to pay so it is unwise for a claimant to claim more than he can reasonably hope to be awarded.

7.10 Completing the form: The form needs to be completed on paper unless the claim is simply for a money sum against no more than two people, when it may be completed on line.

7.11 To start a claim on paper, you should complete the form and make enough photocopies of it and the guidance notes for the court and each defendant. Make an extra copy to keep for yourself. Have a sensible filing system which you feel comfortable with and file your claim form. Help in completing the form can be obtained from Citizens’ Advice Bureau. Court staff will do what they can to assist but they are not there to give you advice.

7.12 When completed you should submit the form to the court, with enough copies for each defendant, either by attending at the court office or by post, together with the court fee, where applicable. The fee can be paid in cash, by cheque payable to ‘HM Courts & Tribunal Service’, or by debit card.

7.13 A claim on line is started at www.moneyclaim.gov.uk. The court fee is calculated automatically and can be paid by credit or debit card. The online guidance explains the process but there is also a help desk that can be contacted in case of problems. The number is listed on the website.

7.14 After the proceedings have been started the court will inform the Claimant that the claim has been issued by sending a ‘Notice of Issue’. The court will also send each defendant a copy of the claim together with the notes of guidance. Defendants have the option of admitting the claim in whole or in part or defending it.

C. Where to start proceedings

7.15 County Court or High Court?: The general rule is that the county court has the same jurisdiction as the High Court. The primary exception is in the equity jurisdiction where there is a county court limit of £30,000, above which all claims must start in the High Court although once started in the High Court a claim may be transferred to a county court regardless of the county court limit. Equity proceedings include cases involving trusts, estates, dissolution of partnerships and applications for specific performance.

Proceedings may only be started in the High Court (either in London at the Royal Courts of Justice or in a District Registry, which is the High Court outside London and is usually together with the county court) if the claim is:

(a) expected to be for more than £25,000;

(b) for personal injuries and the value of the claim is £50,000 or more; or

(c) required to be started only in the High Court.

The figures were set for (a) and (b) above some time ago, and a litigant who starts a claim in the High Court for less than £250,000 without some special feature, eg public importance, complexity of facts, or a difficult point of law, can expect the High Court to transfer the case away to the county court. In the Technology and Construction Court the judges expect claims worth less than £500,000 to be started in the county court.

7.16 Which county court?: All claims are now issued at a central national court centre in Salford. Once a Defence is received, the parties are sent a ‘directions questionnaire’ to complete and return to a local Court. This is usually the Court covering the area in which the Defendant resides, but if the parties both specify a preferred court in the directions questionnaire it will be to this preferred court. This court will deal with the management of the case to trial, unless an application is made to transfer the case by either or both parties to another court for the convenience of the parties. At the county court appropriate cases may be assigned to special lists within the court. The three specialist lists are the Chancery List, the Mercantile List, and the Technology and Construction List.

7.17 Cases may be transferred between the county court and the High Court to ensure that they are heard at the level which is most appropriate to the issues in the case, and between county courts either for the convenience of the parties or for court administrative purposes, for example where a case needs to be placed in a specialist list which is not available at the court to which the case has been sent.

D. How to respond if you are sued

7.18 On receipt of the claim form a defendant must decide how to respond. The time allowed for this is 14 days, unless the claim form states that particulars of claim are to follow. In that event the time allowed is 14 days from the service of the particulars of claim.

7.19 The options are as follows:

(a) a defendant who wants to defend the claim (in whole or part) should file a defence with the court or, if unable to do this within the time limit of 14 days, an acknowledgment of service;

(b) a defendant who admits the claim (in whole or part) should file an admission; or

(c) a defendant who files an acknowledgment of service and wants to defend must file a defence within 28 days of the service of the particulars of claim.

7.20 It is not possible in a basic guide such as this to cover all the procedural rules. What follows is intended to provide a general overview. The details are to be found in the relevant sections of the Civil Procedure Rules (CPR):

CPR Pt 9 Responding to Particulars of Claim

CPR Pt 10 Acknowledgment of Service

CPR Pt 14 Admissions

CPR Pt 15 Defence

7.21 If a defendant files an admission, the claimant has the right to enter judgment unless the defendant is a child or protected party (see below). Once an admission has been made it can only be withdrawn or altered with the permission of the court. Where the claim is for an unspecified amount of money, judgment will be entered for an amount to be decided later by the court. However a defendant who admits liability to pay a claim for an unspecified amount may offer a sum in satisfaction of the claim [CPR 14.7]. A defendant may make a request for time to pay [CPR 14.9]. ‘Time to pay’ may be an extended period in which to pay the whole sum due, eg while the defendant makes arrangement to sell his house or other asset, or may involve payment by instalments. The rate of payment may be determined by a court officer [CPR 14.11] or by a Judge [CPR 14.12].

E. The Allocation of the Case to a track