Thinking of suing in court? – London Borough of Bromley

This guidance is for England and Wales

If a trader supplied you with faulty goods or digital content, you received a poor service or perhaps you did not receive the goods, digital content or service at all, you can take your case to the County Court. There are different routes called 'tracks' that your case can take in the County Court: 'small claims track', 'fast track' and 'multi-track'.

Make sure you sue the correct trader, check the trading status (sole trader, partnership or company) and follow the procedure. It is wise to check the trader's financial and trading circumstances before taking any court action; there is little point in suing if the trader cannot pay you if you win.

Court action is a last resort; you should use alternative dispute resolution before going ahead.

ADR: AN ALTERNATIVE TO COURT ACTION?

Alternative dispute resolution (ADR) is a different solution to resolving problems between you and a trader without taking court action. In fact, the court will expect you to have considered using ADR before you go ahead with your claim.

In broad terms, ADR can take two forms:

in some types of ADR, the process allows the parties to the dispute to decide their own outcome, often with the help of a neutral third party. This is typically the case for direct negotiation, conciliation and mediation
in other types of ADR, the outcome is decided by someone who is not a party to the dispute. This is what happens in adjudication, arbitration and ombudsman schemes

Negotiation offers you the best chance to reach a quick, straightforward and amicable settlement between you and the trader.

Conciliation and mediation (exploring what you want, what the trader wants and examining the problem itself) is usually free. An independent, impartial conciliator or mediator encourages you both to reach an agreement. They will not make a judgment or decide an outcome, and any agreement reached is not binding on either side. The HM Courts and Tribunals Service offers a small claims mediation service free of charge. Cases are mediated by telephone.

Adjudication is independent and usually free. An adjudicator will make a decision on your case based on written evidence submitted by you and the trader. You are not bound by the adjudicator's decision and can still take your case to court if you are dissatisfied with the outcome.

You can use arbitration, which is the use of an independent arbitrator to decide your case, but you can only apply if you have contacted the trader about the dispute. You normally have to wait for a specified time from the date you complained to the trader before you can apply for arbitration. If you have received the trader's final decision (usually in the form of a 'deadlock' response) they you may be able to go to arbitration earlier. Arbitration is binding so neither side can take court action once the arbitrator has made a decision.

Some traders must by law belong to an ADR scheme - for example letting and estate agents have to join a government approved redress scheme. Trade associations may offer an ADR scheme that is tailored to the specific trade sector, such as holiday and travel operators, builders or garages. Check to see if the trader you are in dispute with is a member; the 'Trade associations and regulatory bodies' guide gives more information.

Some trade associations belong to the Chartered Trading Standards Institute's Consumer Codes Approval Scheme. Members of the scheme are audited and monitored to ensure they provide high standards of service. They must also offer an ADR service. For more information on the Consumer Codes Approval Scheme, visit the CCAS section of the CTSI website (you can also search for approved code members on the site).

Ombudsman schemes cover trade sectors such as financial services, communications and energy providers and are free to use. You should follow the trader's internal complaints procedure before seeking assistance from the relevant Ombudsman scheme.

Regulators are organisations set up by law to regulate specific sectors such as the communications (Ofcom), energy (Ofgem) and water (Ofwat) industries.

WHAT DO I NEED TO CONSIDER BEFORE GOING AHEAD?

Taking court action should be a last resort after you have given the trader every opportunity to resolve the dispute and after you have considered an ADR scheme. Bear in mind that the judge may not award costs to you if they believe you have not tried to reach an out-of-court settlement.

In law, you have a limit of six years from the date of the breach of a consumer contract (when the faulty goods, faulty digital content or poor service were supplied) in which to make a claim against the trader. Check to make sure you are within this time limit before starting your claim.

There are different routes, called 'tracks', that your case can take in the County Court. If your claim is for £10,000 or less and is relatively straightforward, it will be allocated to the 'small claims track'. If the value of your claim is between £10,000 and £25,000 it will be allocated to the 'fast track'. If it is a complex case and the value of your claim is more than £25,000 it will be allocated to the 'multi-track'. Sometimes claims for more than £10,000 can be allocated to the small claims track if the court allows it. You may wish to seek legal advice on the merits of your case and the likely costs before you go ahead. Note that claims for personal injury and housing disrepair will only be considered for the small claims track if they are for less than £1,000.

It is up to you to demonstrate to the court that you have a justified case if you want to win. Make sure you have evidence to support your case, such as:

your statement of events, which should be set out in date order
photographs or a video of the faulty goods, digital content or poor service. If practical, you could even take the faulty or damaged item into court
the contract (if there is one)
any relevant documents (such as receipts, written contracts, valuations)
any correspondence between you and the trader
details of an expert witness (see below)
details of any other witnesses you may wish to use

WHAT IS THE BREATHING SPACE SCHEME?

If a trader is temporarily protected from creditors (those that the trader owes money to) under the Debt Respite Scheme (Breathing Space), you cannot make a claim against them. This scheme gives legal protections from creditors to people with problem debts by giving them a 'breathing space' - for example, pausing enforcement action.

IF I WIN MY CASE, WILL I GET MY MONEY?

There is little point in taking court action if the trader cannot pay you. It is wise to check out the trader's financial and trading circumstances before taking court action. Has the individual gone bankrupt? Has the firm or company ceased to trade? Can you trace them or have they disappeared?

If you win your case but the trader does not pay, you will need to go back to court and make an application for the money. This is called enforcing the judgment.

You can check to see if a sole trader or partner is bankrupt or if a company is in liquidation by contacting the Insolvency Service and Companies House.

If a trader has outstanding judgments against them (they have not paid when a court has ordered them to do so), it may not be worthwhile taking court action. You can find out if a trader has unpaid judgments by visiting the Trust Online website.

STARTING YOUR CLAIM

The first step is to write to or email the trader and tell them that you intend to take court action if they fail to resolve the dispute. Set a reasonable deadline for a response. Keep a copy of the letter or email, as well as proof of posting or any read-receipt you receive so that you can produce it in court. This is called a 'letter / email before action'. You can find a template letter in the 'Writing an effective complaint' guide.

The next step is to complete a claim form (form N1). You can obtain a form from your local court or see the information about making a court claim for money on the GOV.UK website. You are the claimant and the trader is the defendant.

You can also find information on court fees, going to court and enforcing a judgment on the GOV.UK link above.

WHO DO I SUE?

It is very important to make sure that you take court action against the correct person / trader.

If you are starting a claim against a sole trader, complete the claim form using the individual's name, followed by the trading address, which may be a home address. Sometimes an individual may trade under a different name. In this case use the trader's full name if you know it, followed by the name that they trade under - for example, Mr Joe Xyz trading as Joe Xyz Plumbing.

If you are starting a claim against a firm, complete the claim form using the name of the firm with 'a firm' in brackets afterwards - for example, XYZ Plumbers (a firm) - followed by the trading address. However, you should make every effort to find out who the owner of the firm is.

If you are suing a partnership, you can sue all the partners by name followed by 'trading as' and then the trading name, or use the trading name followed by 'partnership' in brackets afterwards followed by the trading address - for example, XYZ Plumbers (a partnership). You will need to supply enough copies of your claim form to be sent to each partner.

If you are suing a company (generally this means one that has Limited, Ltd or PLC after the name) you must complete the claim form using the full name of the company followed by the registered office address, or use the address of the branch / shop where you have your complaint.

HOW DO I COMPLETE THE FORM?

you do not have to use legal jargon
if the claim form is handwritten, make sure it is clear, legible, written in black ink and in capital letters
remember you are the claimant and the other party is the defendant
set out brief details of your claim, such as 'breach of contract' or 'faulty goods'
complete the particulars of the claim:
- set out the details of the agreement you have with the defendant
- follow this with a list of the problems in the order they arose
- detail the steps you have taken to attempt to resolve the problem
- set out the amount you are claiming, including additional expenses such as court fees and interest, expert's fees, witness expenses, travelling and overnight expenses

Note that there are limits to the amounts that can be claimed for certain costs. Ask the court for guidance on what you can claim and for guidance on experts.

WHAT HAPPENS NEXT?

Send the completed claim form, plus a copy for the trader and the fee, to:

County Court Money Claims Centre
PO Box 527
Salford
Greater Manchester
M5 0BY

If you need help to claim by post, you can contact the County Court Money Claims Centre on 0300 123 1372.

You will receive a 'notice of issue', which will have the case number on. The claim form will be served on the trader and the court will inform you when this has happened. The trader has to respond within 14 days from when the claim was served. If the trader does not respond you can apply for judgment by default. This is where a judge decides you have won your claim because of the trader's failure to respond.

The trader may admit the claim and accept that they owe you the money. If so, you can complete a court form accepting the trader's proposal for payment, set out how you wish the payment to be made (if the trader has not put forward a proposal to pay) or dispute the trader's proposal for payment. In the event of a dispute, you will need to set out your reasons in writing; the court will then fix a rate of payment and send the trader an order to pay.

The trader has the right to defend the action or can choose to settle the claim. They can also issue a counterclaim if they believe that you owe them money. If the trader decides to defend the claim, the court will send you and the trader a 'directions questionnaire'. This is to enable the court to decide how the case will be dealt with.

The judge may ask for you and the trader to attend a preliminary hearing to help decide if a court hearing is necessary. When the court has arranged a hearing you should receive a 'notice of allocation'; check this carefully as it will include important details about the hearing and instructions you should follow before you attend.

CAN I START A CLAIM ONLINE?

You can start a claim online:

if it is for a fixed amount of money
it is for less than £100,000
for no more than one claimant and against no more than two people or organisations
the address is in England or Wales and has a valid postcode

If all of the above applies you can do so using HM Courts and Tribunal Service's online service. It has been designed to be secure and easy to use. There are two online claims services.

for claims less than £10,000 contact Civil Money Claims (CMC) on 0300 123 7050
for claims between £10,000 and £100,000 contact Money Claim Online (MCOL) on 0300 123 1057

EXPERT WITNESSES

In order to prove your case, you may need to use an expert witness, which is someone who has specialist knowledge or a skill that qualifies them to give an opinion on the facts of the dispute. You will need the court's permission to use an expert witness and you must state whether you want them to give written evidence or speak at court. It is best if you and the trader can agree to use the same expert to reduce costs. See the 'Getting evidence to prove your claim' guide for more information.

The limit for recovering expert witness fees in court is £750.

PREPARING FOR THE HEARING

The court will explain, in the form of 'standard directions', what you need to do to prepare for the hearing.

It is essential that you are fully prepared and that you have all the relevant original documentation with you. Make sure you have sent the trader copies of all the paperwork that you want to use in your claim. If you fail to do so you may be stopped from using this evidence during the hearing. Check that any witnesses or experts you intend to use are available. The case will be heard in front of a judge who will direct proceedings.

A court hearing, whilst it is supposed to be informal, can be daunting, so make sure you have everything that you want to say written down. You do not have to use a solicitor but if you don't feel confident enough to present the case yourself you can take someone along to do this for you. This person is called a lay representative. However, if you do want someone to speak on your behalf, like your partner or an advice worker - you must get the court's permission.

The judge will listen to the evidence presented and come to a decision called the 'judgment' and give reasons as to how the decision was reached. The judge's decision is final but you can appeal if you have proper grounds to do so. The court can advise you on appeal procedures.

WHEN DO I GET MY MONEY?

If you win your case the judge will order the defendant to pay either immediately, by instalments or in full by a certain date. If you lose your case the defendant may be able to claim limited expenses from you.

ENFORCING A JUDGMENT

Even if you win your case, you may not get your money. In this case, you can consider enforcing your judgment by asking the court to collect the money owed to you by the trader. There is a fee to pay for this.

You can find out the trader's financial circumstances by asking the court to order the trader to attend a hearing that requires them to provide evidence of their income and expenditure or, if it is a company, to provide details of their accounts.

The judgment can be enforced in the following ways:

arrange for the court bailiffs to collect the payment or items of value that can be sold to pay the debt
ask the court to freeze assets or money in a bank, building society or business account
arrange for the court to charge the trader's land or property. This means if the land or property is sold, the trader must pay this charge before they get their money

IN THIS UPDATE

No major changes.

Last reviewed / updated: February 2023

Key legislation

there is no key legislation for this guide

Please note

This information is intended for guidance; only the courts can give an authoritative interpretation of the law.

The guide's 'Key legislation' links may only show the original version of the legislation, although some amending legislation is linked to separately where it is directly related to the content of a guide. Information on amendments to legislation can be found on each link's 'More Resources' tab.

For further information in England and Wales contact the Citizens Advice consumer service on 0808 2231133. In Scotland contact Advice Direct Scotland on 0808 164 6000. Both provide free, confidential and impartial advice on consumer issues.