Before you go to a small claim court you must resolve three issues:
1. Can you win your small claim case?
2. Can you collect on your judgment?
3. Can the small claim court hear your case?
Can you win your small claim case?
What makes a winning case? In short: liability.
You won't get any money from the person you are claiming from (called a 'defendant') until you prove that the defendant is legally responsible for your loss. This means that you must prove their liability. Your loss isn't enough to make a winning small claim case, it must also be the other side's legal fault. You must state facts to the judge to show that the defendant should be held legally accountable.
The judge will listen to your evidence and decide whether you have a legal case (i.e. that you have a legal right to claim compensation from your debtor or the wrongdoer). You must establish the facts in as favourable a way as possible and the judge will rule on the legal position. If you understand some of the principles of the relevant law, this will help with your preparation and can ensure that your arguments are more easily understood and appreciated by the judge. This should lead to a better chance of success.
Look at the examples below:
It's most important that you can show that the defendant's wrongful act caused you actual injury which can be translated into a monetary recovery. Wrongdoing without harm is not usually compensatable.
Can you collect on your judgment?
Even if you win your small claim case, your victory is worthless unless you can enforce the judgment. If your defendant is genuinely unable to pay, they may not be worth chasing and they may choose not to even defend themselves.
Unfortunately, there's no simple way to investigate the finances of a defendant unless you are prepared to pay for an asset search, but this is seldom cost-effective in a small claims case. At best you can only make casual enquiries to learn what you can about the defendant. You may find that they have many more creditors, some of whom hold judgments ahead of yours.
It's important to be practical. It makes no more sense to waste valuable time, effort and court costs chasing an uncollectable debt than it does suing on a financially negligible small claim.
The Small Claims Track only makes sense when you have a reasonable chance of winning and collecting enough money to make the exercise worthwhile.
Can the small claim court hear your case?
The small claim courts can only hear cases where the law of England and Wales apply. If you purchased goods abroad, the law which applies is nearly always the law of the country in which the purchase was made. Sometimes the contract will state which law applies. For example, if you purchase computer software over the internet, the contract will state which law applies. This may change in the future because the UK is a member of the Euopean Union.
Published on: June 9, 2008