Legal language - We try to explain any legal language as we go along, but there is also a ‘What does it mean?’ section at the end.
Should I sue?
- Is this guide for you?
- Before you start - things you need to know
- Is my problem a legal problem?
- Can the law give me what I want?
- What will it cost?
- Am I in time?
- What do I have to prove?
- What evidence will I need?
- How much is my case worth?
- What is my opponent’s attitude to solving the problem?
- What are the risks?
- What are the alternatives?
- Doing nothing
- Next steps
- What does it mean?
- About this guide
Is this guide for you?
Before you start your civil claim, the court expects you to have made every effort to settle your dispute with the other side. Suing is treated as a last resort. See How to sort out your legal problem before or instead of going to court.
What is suing?
If you sue someone you start a court process to bring a legal claim against them. This can also be known as taking legal action, bringing a claim, bringing a civil claim, going to court, or litigation. The purpose of suing is to get the court to make a decision in your favour (called ‘a judgment’) and award a remedy, usually money compensation.
This guide is for you if:
- you are thinking about suing (starting a civil claim) in either England or Wales, and
- your case involves a claim for £25,000 or less, and
- you are representing yourself (you are a litigant in person).
This guide is also for people supporting litigants in person, for example Personal Support Unit volunteers, CAB volunteers, advice workers and court staff, as well as relatives and friends.
It is not for you if you are involved in:
- a criminal case,
- a family case (such as an application for a domestic violence injunction or a divorce),
- a housing disrepair or housing possession case including mortgage possession,
- injunctions (including court claims about anti-social behaviour),
- a medical accident case,
- a case involving defamation (that is libel or slander) or
- a tribunal case (such as a discrimination, employment or immigration case).
Sometimes going to court is likely to be your best or only option, for example:
- if your home or health or safety is at risk - you may need an urgent solution, one that only a court can provide; or
- When solving the problem in other ways is not possible or has failed - see How to sort out your legal problem before or instead of going to court.
But otherwise starting legal proceedings (the law calls this ‘litigation’) can be risky and unpredictable, expensive, and surprisingly formal. There will be lots of forms to fill in, and a strict court timetable to follow. The process is likely to be stressful and time-consuming, and may take a long time to conclude.
We hope this guide will give you the information you need to decide whether or not suing someone might be worth your time, money and effort.
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Sometimes going to court is likely to be your best or only option, for example:
- if your home or health or safety is at risk - you may need an urgent solution, one that only a court can provide, or
- when solving the problem in other ways is not possible or has failed (see How to sort out your legal problem before or instead of going to court).
But otherwise suing someone can be risky and unpredictable, expensive, and surprisingly formal. There will be lots of forms to fill in, and a strict court timetable to follow. The process is likely to be stressful and time-consuming, and take a long time to conclude.
We hope this guide will give you the information you need to decide whether or not suing someone might be worth your time, money and effort.
‘I was leaving the office, when I tripped over a cable and fell breaking my leg and injuring my wrist. The cleaner had left a vacuum cleaner cable plugged in a waist high socket, trailing across the corridor and I hadn’t seen it. I ws off work for a long time. As well as the pain, I couldn’t play with my children, clean the house, go to the gym, and worst of all I had to cancel our holiday. On top of that, I lost three months wages, and had to pay for extra childcare, cab fares, and new clothes to go over the plaster. I was in pain, miserable and seriously out of pocket. My boss said it was my fault for not looking where I was going, but my friend said that I should sue and get compensation. I don’t know what my chances are or if it’s worth the effort …’
Before you start - things you need to know
In this section we explain the main things you need to understand to get to grips with the idea of suing.
A civil court is a court which deals with claims between people, or between people and organisations. They deal with hundreds of thousands of legal disputes each year when one person or organisation claims that another person or organisation has done something wrong which has caused injury, damage, or financial loss or expense.
This guide focuses on the sort of disputes where the person bringing the claim wants the court to order the wrongdoer to pay compensation. Financial compensation awarded or agreed in court proceedings is often called ‘damages’.
There are different types of civil courts. The civil court that most people will come across is the county court. There is also the high court, but that deals with the most serious civil claims, generally ones worth over £50,000 for personal injury claims, or over £100,000 for other claims, or claims that are legally very complex. This guide focuses on everyday civil claims in the county court.
We talk about the court ‘doing’ things in this guide. For example, the court may ‘send’ out a form or ‘make’ a decision. You may be more used to thinking of the court as a place - a building. But ‘the court’ is often used as shorthand to refer to the people working in the court, whether they are a judge or other court staff. This is similar to how we might talk about schools or hospitals. For example, ‘the hospital made me an appointment’ or’ the school sent me a letter’.
Types of claim
A civil court can only deal with a dispute if there is a legal problem, with a legal solution.
The most common types of legal problem that people sue over are because of personal injury after an accident, or contract, debt or consumer problems generally. For example, being injured as a result of tripping over a cable at work that shouldn’t have been there, a builder not finishing the work they agreed to, or being owed money for work that you did and haven’t been paid for.
The most common legal solution is asking the court to award money compensation.
The main types of legal claim that we cover in this guide are listed below. It is important to work out which type your problem comes under as different types of claim may have different rules:
Breach of contract claim
A ‘breach of contract’ claim is when someone or an organisation breaks a legal agreement you have with them, and you suffer a loss. A legal agreement doesn’t have to be in writing, it can be a verbal agreement (also called an oral agreement). In a claim over a debt or consumer problem, you have to show that someone breached (broke) some form of contract that they had with you, for example an agreement (contract) with a shop to provide you with goods where they took your money but failed to deliver them.
Negligence or breach of duty claim
‘Negligence’ is a legal term for carelessness - a failure to behave with the level of care and duty that most people would expect. For example, if your neighbour’s builders are careless and drop a roof tile on your car. In this type of claim you have to show that someone has failed to exercise the level of care and skill that a reasonable person would have done, and that you suffered loss and expense as a result.
Some claims can be both breach of contract and breach of duty.
Personal injury (including road traffic accidents) claim
You might see these types of claims abbreviated to PI for personal injury and RTA for road traffic accident.
Personal injury is one of the most common types of negligence or breach of duty claims. In a personal injury claim, you have to show that someone else is at fault, or mostly at fault, for causing your accident, by being negligent or in breach of their duty of care towards you. To claim against your employer, you have to show they are to blame, for example by not having safe premises or equipment or a safe system of work. If you are injured in a road traffic accident, you have to show someone else was to blame, for example another driver, or possibly that the highway authority was responsible for the accident because they didn’t safely maintain the road. You also have to show that you have suffered a physical or mental injury as a result.
Legal aid used to be available for many of these types of claim, particularly if they involved several thousand pounds, but generally this is no longer the case. (See What will it cost?).
New rules likely to come into force from August 2020 will mean that the small claim limit for personal injury and road traffic accidents is likely to change.
A ‘small claim’ is a claim that is worth compensation of £10,000 or less.
But there are special rules for personal injury and housing disrepair small claims:
- a personal injury case is a small claim if the total value of the claim is worth under £10,000, and where the injury part of your claim is worth less than £1,000
- a housing disrepair case is a small claim if the total value of the claim is worth under £10,000, and where the cost of repairs is worth less than £1,000 (however, we don’t cover housing disrepair claims in this guide)
Whether you win or lose a small claim, any legal costs you pay or get back are very limited.
The ‘small claims track’ is the name for the process that the court uses to deal with small claims, which is less formal than other types of claims.
Fast track claims
A ‘fast track’ claim is a claim that:
- is worth compensation of between £10,000 and £25,000; or
- involves personal injury and the overall value is under £25,000 and you are claiming over £1,000 for the personal injury part of your claim;
- is for housing disrepair and the overall value is under £25,000 but the cost of repairs is over £1,000.
Litigants in Person (LiP)?
A ‘litigant in person’ is someone who brings or defends a claim without a lawyer. You may see this shortened to ‘LiP’. Since the withdrawal of legal aid for most civil claims in 2013, the majority of people who need to go to court can’t afford a lawyer and have to represent themselves, unless they can find free help, for example from a charity, or get alternative funding, for example through a Conditional Fee Agreement. See the section What does it cost? below for more information.
Although judges may be helpful to you as a litigant in person, you will be expected to follow the same court rules as litigants who are represented by solicitors or barristers.
- ‘Claimant’ is what the law calls the person who starts court proceedings, the one doing the suing.
- The ‘defendant’ is the person or organisation being sued.
- ‘Other side’ is the informal term used by the claimant to refer to the defendant, and by the defendant to refer to the claimant.
- ‘Party’ is the word used for anyone who is a claimant or defendant in the case. ‘Parties’ are all the claimants and defendants in a case.
Going to court
The question ‘will I have to go to court?’ is often what worries people most when they are considering suing. Although we still talk about ‘going to court’ most civil cases don’t get as far as the final hearing (the trial) – which takes place in a court. Although there is no guarantee that you will be able to settle (sort out) your individual case without going to trial, you may find it reassuring to know that statistically it is quite unlikely your case will end up with a trial where you have to attend court. It’s still quite stressful and time-consuming to bring a civil claim!
There are two common reasons why so few cases end up in a trial:
- You might win your case early on because the ‘other side’, the defendant, doesn’t respond to your claim in time which allows you, the ‘claimant’, to ask for judgment in default. (Judgment is when the court orders that you have won your case. Judgment in default is when the court decides you have won your case simply because the defendant has failed to defend the case in the time allowed by the court.)
- Both sides might reach an agreement (this is called ‘settling’) and settle their case before it gets as far as the trial – this is very common.
Most cases settle because under modern court rules suing and going to trial are considered a last resort. And nearly all the evidence has to be exchanged before the trial, including statements by the witnesses. That means both sides can see the strength of each other’s cases beforehand. No surprises on the day! The downside is that these days preparing a civil claim is a lot more work. You can’t just turn up on the day with a carrier bag of papers and argue your point. The upside is that a lot of cases settle before people issue proceedings (start a civil claim), or shortly afterwards, and very few cases end up in a full-blown trial.
If you decide to sue there are many more things you need to know before you start a civil claim, see Before you sue – what you need to know.
Bringing a claim (suing) is a very complicated process. Until 2013 most claimants and defendants had qualified lawyers representing them, and the law and legal procedures were designed with this in mind. Since cuts to legal aid many claimants and defendants can no longer afford a lawyer. Partly in response the government is introducing an online court. This is intended to make the process easier for litigants in person. It will also mean that you will be even less likely to go to a court. You can already try this new online service although it isn’t available for all types of case yet at Make a money claim online.
Is my problem a legal problem?
'Cause of action'
You can only win a case and get compensation if you can prove that someone else has behaved negligently in breach of your legal rights, or in breach of a contract made with you, and that has caused the problem. This is called having a ‘cause of action’.
Below we give some examples of the different types of claims covered in this guide.
Breach of contract example:
Katrina wants her laptop repaired before she moves in three weeks’ time. She agrees to pay £200 upfront, but only on condition that the repair is carried out within that time, as it will be no use later. The engineer fails to carry out the repair by the agreed date, and though he returns the unrepaired laptop, he refuses to repay the £200. The engineer has broken the contract he made with Katrina by not carrying out the repair in the agreed time so Katrina has a cause of action.
Personal injury negligence examples:
1. Sam was standing on the balcony of his rented flat leaning on the railing when it gave way and he fell breaking his leg. Sam has a cause of action. He sues his landlord for personal injury because of the landlord’s breach of contract (not keeping the flat in proper repair under the terms of the tenancy agreement) and negligence (failing in his duty of care to maintain the premises safely). The court awards him compensation for his injury, and his losses and expenses.
2. Josie was standing outside her flat when the door slammed and she was locked out. She decided not to wait for her flatmate to get home, but to climb over the balcony to next door’s flat. While attempting this she fell to the ground breaking her leg. Josie has no cause of action because she has no one except herself to blame for the accident. Her rights have not been breached by someone else.
Negligence without personal injury:
Mona’s neighbour had his front garden re-concreted. The builders set up their concrete mixer close to where Mona had parked her new car. When she got home it was dark, and it wasn't till the next day that she saw that her car was spattered with concrete. By then it wouldn't wash off. It cost over £1,200 to get the car's paintwork sorted. Mona has a cause of action because the builders didn’t take a reasonable level of care to avoid damaging her car.
Quick check - is your problem a legal problem?
Was your problem caused because someone else:
- breached your legal rights by their negligence and/or,
- breached a contract they had with you; and
- you suffered injury, damage, loss or expense as a result?
If so, it is likely that you have a cause of action and that your problem is a legal problem.
Top tip! You can find out more about your legal rights through Advicenow’s top information picks - handpicked pieces of quality information, sourced from the best providers of information on law and rights at Categories
Can the law give me what I want?
It depends what you want to achieve. Take time to think, perhaps in discussion with your family or friends, what it is that you want to get out of suing.
Suing is unlikely to help if you want an apology, or an explanation for what happened to you, or a promise that it won’t happen to anyone else. For the sorts of cases covered in this guide you are more likely to get money compensation.
Court rules and previously decided cases (called ‘precedents’) govern how much compensation can actually be awarded. Unlike some other countries, the courts of England and Wales do not award ‘punitive damages’, that is compensation that punishes the wrongdoer.
Quick check - Can the law give you what you want?
Do you want compensation? If so, the law may be able to give you what you want. But if not see How to sort out your legal problem before or instead of going to court.
What will it cost?
In the past most claimants instructed a solicitor to manage their whole case for them. This can be very expensive. But legal aid was available for many people who couldn’t afford to pay for a solicitor on their own. Cuts and changes to legal aid in 2013 now mean that the majority of claimants can’t afford a solicitor. In this section we set out some of the things you may have to pay for when suing as a litigant in person, together with any help available to meet those costs.
You have to pay a court fee (called the issue fee) to start your court case, and further fees for any application to the court or for the hearing (trial). The issue fee varies depending how much your case is worth, and ranges from about £25 for a claim under £300 to many hundreds of pounds for higher value claims. You can check the exact amount in leaflet EX50 Civil and family court fees
Help with fees
You may be able to get help to pay the court fees if you are on benefits or a low income and with little in the way of savings. You can find out more here and another guide in this series Before you sue – what you need to know.
Some solicitors still offer a limited amount of free advice, perhaps half an hour or an hour. It’s always worth ringing a solicitor to see if they offer this. There are also other ways of using a lawyer which can help you manage the costs:
Unbundling - pay as you go and fixed fee
In recent years some solicitors have started working in a new way, called ‘unbundling,’ where they will do some agreed part of the work - perhaps advising you on what evidence you need, and putting it together for you - but not the whole case. You have to agree with the solicitor who is responsible for what, where their task ends and yours begins. This will be cheaper than asking a solicitor to manage the whole case. It’s a bit like building work, where you agree that the builder will quote for the plumbing and wiring, and you will do the plastering and decorating.
'No win no fee' - Conditional Fee Agreement
You may want to consider a conditional fee agreement (CFA) - commonly called ‘no win no fee’. There are pros and cons to conditional fee agreements – discuss the details with your lawyer before you commit. In particular, you are likely only to be able to get a CFA for a claim which is not a small claim – that is, one worth over £10,000, or a personal injury claim where the personal injury element is worth over £1,000. This is because CFA providers make their money from getting back the legal costs from the other side if you win, or sometimes from your damages. In a small claim, they don’t get legal costs. For more information see 'No win, no fee'.
After the event
There is also a form of insurance called ‘after the event’ insurance, known as ATE insurance. We usually buy insurance before things go wrong but with this kind of insurance you buy it after the event (your accident or other problem) happened, generally near the beginning of starting a claim. It is available for the sorts of cases which are more valuable than small claims, that is worth over £10,000 or personal injury cases where the personal injury element is worth over £1,000, and where the claimant has a good chance of success, so that the ATE provider gets back their legal costs from the other side.
Legal expenses insurance
If you have house insurance (building or contents) or car insurance, your policy may include legal cover which could help to cover the cost of your claim. It is always worth checking your insurance if you have it just to make sure.
Legal aid is a government scheme – a means tested benefit to help you to pay for legal advice and help and representation. Sometimes it can also pay for things like an expert’s opinion or court fees.
The rules about who can get legal aid and what for changed in 2013. But some people can still get legal aid. For example, if you are bringing a claim for a person who is incapable of managing their affairs (perhaps because of dementia) or is under 18 (perhaps your 10-year-old has been injured), you may be able to get legal aid. Before you decide to take action alone, find out if you can get legal aid to pay for a lawyer to help you.
If you are a member of a trade union, you may be able to get help for some types of claim, particularly if it is work-related, such as an accident at work.
Some charities offer free legal advice or can signpost you to another organisation who can provide this.
'McKenzie friend' is the name for someone who can encourage and help you in court if you don't have a lawyer. Many do this for free, for example, a family member or a volunteer from a charity, but others charge for their services. See Legal Choices for more information about the pros and cons of using a McKenzie friend.
Legal costs include things like court fees, the cost of expert reports, and if the other side is using a lawyer, what they charge for their work. For some types of claim you risk having to pay the other side’s costs if you lose.
How much you risk having to pay will depend on whether your case is treated as a ‘small claim’ or a ‘fast track’ claim. Costs will be very limited if it is a small claim, but could be many thousands of pounds if it is a non-personal injury fast track claim. See Legal costs and who pays them for more information.
Quick check - what will it cost?
Do you understand how much you may have to pay for:
- legal advice, and
- legal costs?
Can you afford it? If not, it is worth checking out How to sort out your legal problem before or instead of going to court.
If your case is worth compensation of up to £10,000, or is a personal injury claim where the total value is worth up to £10,000 and the injury part of your claim is worth less than £1,000, it is likely to be a ‘small claim’.
If your case is worth compensation of between £10,000 and £25,000, or is a personal injury case where the total value of your claim is below £25,000 and the injury part of your claim is worth over £1,000 it is likely to be a ‘fast track claim’.
Am I in time?
Personal injury example: Sam’s story
Sam was standing on the balcony of his rented flat leaning on the railing when it gave way and he fell breaking his leg. He wrote to his landlord claiming compensation, and had some correspondence with the landlord’s insurers, but then didn’t follow it up while he went travelling. He took up the case again just over three years later when he got back, but discovered there was no legal remedy anymore because he was outside the time limit.
As Sam found out, there are rules about how long you can wait before starting a claim. There are time limits which the law calls ‘limitation periods’. There are only two limitation periods for the type of cases in this guide, and they are both quite long – three years for personal injury and six years for everything else, but there are some exceptions which give extra time if you are in a particular situation. For more detailed information see Time limits for suing someone.
Quick check - am I in time?
Did the breach of contract, or act of negligence not involving personal injury happen less than six years ago?
|Yes||You are in time.|
Did it happen more than six years ago?
You are out of time. Youmay want to get legal advice to see if you come within the exceptions to this rule.
Did your personal injury happen less than three years ago?
|Yes||You are in time.|
Did it happen more than three years ago?
|Yes||You are out of time. Youmay want to get legal advice to see if you come within the exceptions to this rule.|
What do I have to prove?
If you bring a claim, you have to prove that the other person is legally at fault. You need to have a set of facts which are enough to justify a right to sue for money or to enforce a right. This is called ‘having a cause of action’. You will also have to prove how much your case is worth.
There are two parts to what you have to prove in a civil claim:
‘Liability’ means proving that the problem is legally the defendant’s fault (they breached your legal rights or broke a contract with you).
It is irrelevant how badly injured you may be, or how much money you may have lost, if you can’t prove that the defendant is liable. For example, if another driver pulls out in front of you causing you to crash, and you break your leg, you have a claim against that driver. If you fall downstairs at work because you were running and tripped on your own shoelace and broke your leg, you have no claim.
‘Quantum’ is the legal word for how much your claim is worth. You have to prove your claim is worth the amount you say it is.
If the defendant is liable, the value of damages (quantum) has to be assessed. If you have lost nothing and are just annoyed, there is probably no point in suing.
Quantum is assessed differently in different sorts of claims. We explain what you can claim for in Claimants – how to start a civil claim.
Quick check – What do I have to prove?
- Can you prove that it was the defendant’s fault that your legal rights were breached or that a contract with you was broken?
- Can you prove how much your case is worth?
If so, you might be able to prove the key components of your claim. If not, or even if you believe you can, have a look at How to sort out your legal problem before or instead of going to court before you decide to start a civil claim.
What evidence will I need?
Contract example - Joe’s story
Joe is a self-employed carpet-fitter. He fitted a customer’s entire house, and she said she was happy with the work, so he sent her his invoice. She didn’t pay, so he chased it up by email and then phone. When he finally spoke to her she said that he had damaged the paintwork. He knew he hadn’t, he had pictures of the installation on his phone. She wanted him to accept £400 less for the job. He refused, and said he expected the full amount. She then didn’t pay anything, not even the reduced amount she’d offered, so he decided to sue for the whole amount of his invoice.
When you sue, it is your job to prove your claim, so you have to produce all the evidence to support it.
You will need evidence about liability, that is proving that the problem is the defendant’s fault, and also evidence about quantum – the value of your claim.
If your claim is for breach of contract, you will also need to have evidence to show how the contract came about, what it was for, and how it was broken (breached) and how much the claim is worth.
In Joe’s case the evidence he needs might include his estimate for the work, something to show that the customer accepted the estimate, the photographs he took showing the fitted carpet with no damage to the paintwork, a copy of his invoice and his email chasing the payment.
Keep your evidence in a safe place. If the case does go to trial a judge will only decide the case on the evidence available.
If you have evidence (photos and texts, for example) on your phone, make sure you have them electronically saved elsewhere. You don’t want your case to fail because someone stole your mobile.
You can find out more about evidence and the type of evidence you will need to prove liability and quantum in Evidence – what you need to sue someone.
How much is my case worth?
Contract example: Maria’s story
Maria took her wedding dress and the bridesmaids’ dresses to be dry-cleaned. She had intended to keep the wedding dress for sentimental reasons, but to sell the three bridesmaids’ dresses as they had been really expensive. They all came back with the fabric damaged. Maria complained, and went through the shop’s dispute resolution service. They offered her nothing for her wedding dress as they said it had served its purpose and she wasn’t intending to sell it anyway, and almost nothing for the other things. So, Maria decided to sue. She got a wedding dress shop to value the dresses as if they had been undamaged. They assessed their value at £800. She then started a claim in the county court for £800. She had some negotiations with the drycleaner’s insurers, but they only offered £300, so it went to trial. The judge awarded £600 for the value, as the Judge said they still had some value left and Maria still had the dresses, and £100 for the upset of having her wedding dress spoiled.
Personal injury example: Jane’s story
Jane was leaving the office, when she tripped over a cable and fell breaking her leg and injuring her wrist. The cleaner had left a vacuum cleaner cable plugged in a waist high socket, trailing across the corridor and Jane hadn’t seen it. She was off work for a long time. As well as the pain, she couldn’t play with her children, clean the house, go to the gym, and worst of all she had to cancel a family holiday. On top of that, she lost three months wages, and had to pay for extra childcare, cab fares, and new clothes to go over the plaster. She was in pain, miserable and seriously out of pocket.
Jane needs to check the publication ‘Guidelines for the Assessment of General Damages in Personal Injury Claims’ which will help her value the injury element of her claim.
She will be able to claim for her net loss of earnings, reasonable costs for additional childcare, and employing a temporary cleaner, holiday cancellation cost, reasonable cab fares and a limited amount for clothes to go over her plaster. She will need to produce receipts for everything. She is likely to lose a percentage of the value of her claim, perhaps 25 per cent or one third, or up to a half depending on the circumstances, as the accident was partly her fault for not looking where she was going.
You may think you should get a large amount of compensation for what has happened to you. But this may be unrealistic. Like Maria, any possible award may be considerably lower than what you were hoping for and may involve you paying unexpected legal costs. Or you may not have sued for enough!
As the court’s main remedy is money compensation, it is essential that you do your best to calculate what your claim is worth carefully, both for negotiating early on, and for court proceedings.
The value of a claim (quantum) is assessed differently for different sorts of claims.
For a breach of contract claim, the aim of any compensation is to put you in the financial position you would have been in if the breach hadn’t happened. You will not get compensation for distress or upset unless the contract is one aimed at pleasure – so if a dry cleaner loses your curtains, you will only get the value of the curtains. If a photographer loses your wedding photos, you will get some compensation for the distress.
For a personal injury claim, you will get compensation for the injury itself, and also for the financial losses and expenses which you have had as a result of the accident.
Sometimes claimants lose a percentage of compensation because of their own behaviour. For example, if you are injured in a car accident which was totally the other driver’s fault, you will lose a percentage of the compensation if you weren’t wearing a seatbelt.
There is more information about how to value your claim in another guide in this series Claimants – how to start a civil claim.
Quick check – How much is my case worth?
- How much compensation might I get if I win my case?
- Might I lose a percentage because it was partly my fault?
- Is it worth the time, effort and money of going to court?
If so, keep reading, but if not, see How to sort out your legal problem before or instead of going to court.
What is my opponent’s attitude to solving the problem?
Negotiating and offering to settle
Before you issue a claim, the courts expect you to have tried to settle your case. Claimants often expect the defendant to be the one to make the offers, and that is often how things happen in practice. There is nothing to stop you making an offer to the defendant, saying what you would accept to settle your claim, and that can be a very good way of speeding thing up. There is more information on this in How to settle a claim.
You need to take account of your opponent’s attitude to solving the problem because if they are not willing to negotiate or go to mediation then you cannot make them. But the law now says you have to make every effort to exchange information and communicate and negotiate before issuing proceedings or the court may apply sanctions.
There are court rules to encourage this, called ‘pre-action conduct’ and ‘pre-action protocols’. For more information about these rules see another guide in this series Before you sue – things you need to know. So, it is important to keep a full record of attempts you make to resolve your case without suing. The court sanctions include incentives for the defendant to co-operate in trying to settle too.
Many defendants will take their lead from how you organise and run your case. If you write and chase up in a business-like way if they don’t reply promptly, they will often become more responsive. If you write, but don’t chase for three months when they don’t reply, they will often continue to employ delaying tactics. The more efficiently you manage your own case, the more likely it is that your opponent (especially that is, if they are a reasonably managed organisation, rather than a disorganised individual) will be willing to negotiate.
Quick check - What is my opponent's attitude to solving the problem?
Is my opponent willing to negotiate or go to mediation?
No? - Alternative dispute resolution (ADR) is probably not going to work. Make sure you keep a note of all the ways you try to solve the problem before suing.
What are the risks?
1. You can’t prove liability
There’s a big risk that you might lose if you cannot convince the judge that the problem is legally the defendant’s fault.
2. You end up paying the other side’s legal costs as well as your own
If you lose the case, there is a risk in some types of cases that you will be ordered to pay the other side’s legal costs. What you can be ordered to pay will be very limited if it is a small claim, but could be many thousands of pounds if it is a non-personal injury fast track claim. You can find more information about legal costs in another guide in this series Legal costs and who pays them.
3. You don’t get the compensation you are awarded
Contract example - Manny’s story
The fence between Manny’s house and the neighbours wasn’t a good one, but it was fine till new people moved in with a dog which kept escaping into his garden. Neither of them knew who the fence belonged to, but Manny offered to replace it if the neighbour paid half. She said yes, and Manny got estimates. It came to £660. He went round and she said that was fine and signed a note agreeing that she would pay half. After the work was done, Manny asked his neighbour to pay her half, and she said she thought it was Manny’s fence after all and refused to pay anything. He kept calling, then he wrote, and in the end, he decided to issue a small claim. She didn’t respond to any of the court paperwork, so Manny got judgment in default.
Manny was pleased, but then discovered his neighbour had moved away, and he couldn’t find out where she’d gone to.
Although Manny won his case, his neighbour may not pay, either because she won’t or she can’t. Manny would have to spend more money to take ‘enforcement action’. Enforcement action is what the law calls the legal steps you may need to take to get the money the court awards you. Enforcement action doesn’t always work. For example, the person you have sued may simply not have the money, or they may move away and you are unable to track them down.
Before you begin the process of suing, it’s important to check whether your opponent has money or assets that they can use to pay you with. You can find more information about how to do this in another guide in this series How to find out if the defendant is worth suing?
What are my chances of success?
When weighing up your chances of success ask yourself the following questions:
- Do I have a legal cause of action which is in time?
- Can I prove someone else is at fault or mostly at fault?
- Can I prove how much my claim is worth?
- Is it possible that the court will decide that what happened was partly my fault?
- Does any potential deduction from the value of my claim make it less worth pursuing?
- Is the defendant likely to be able to pay any compensation the court awards me?
- If the defendant doesn’t pay me voluntarily, how likely is it that any enforcement action I take will be successful?
- Can I afford the cost of bringing a claim?
- If I lose, can I afford to pay all or part of the defendant’s costs (which will include the costs of any lawyers they use)?
- Given that my case is likely to take between six and twelve months from start to the final hearing, is this something I can live with?
If you decide that you want to go ahead and sue, consider getting legal advice, if you possibly can to see if a lawyer agrees that you have a legal cause of action, that you have your chances of success are reasonable , that you have valued your claim correctly and that your opponent will be able to pay you if you win. You can find more information about where to get legal advice in the section on What will it cost?
What are the alternatives?
It is always worth considering Alternative Dispute Resolution (ADR), if it is available for your case, before deciding to sue. Most forms of alternative dispute resolution do not stop you from suing afterwards if you are unhappy with the outcome. For more detailed information about alternative dispute resolution see How to sort out your legal problem before or instead of going to court.
It is almost always worth negotiating to see if you can reach a settlement, although you have to make sure you bear in mind the time limit for issuing your claim. Modern court procedures treat the court as a last resort and expect you to make attempts to negotiate and settle under ‘pre-action conduct’ rules or ‘pre-action protocols’ before you issue a claim. For more information about these rules see another guide in this series Before you sue – things you need to know.
Afzal bought a new washing machine, and the shop plumbed it in for him. About three months after he bought it, he went shopping and left it running. When he got back there was smoke and water coming out of the machine. The clothes were ruined by the smoke, and the kitchen flooring had lifted and needed replacing. The washing machine was still under guarantee so the shop sent out an engineer to look at it. He said that the drum was off-centre, and that it needed to be sent back for repair.
It took so long, over two months because of trouble getting a part, that Afzal demanded a replacement. He also asked for compensation for the ruined clothes and flooring but they refused. They said he’d overloaded the machine, which wasn’t true. Eventually he threatened to sue.
It was at that point the shop manager told Afzal they were a member of a traders’ alternative dispute resolution (ADR) scheme, which he agreed to use. He got a new machine, and some compensation for the clothes and flooring – not as much as he’d have liked, but it did save him the hassle and risk and cost of going to court, so overall, he was glad he did it.
Although Afzal’s claim is important to him it isn’t worth a lot of money even though he had a lot of annoyance and disruption to put up with. He could have sued, but the cost and risks of claiming make this type of case ideal for alternative dispute resolution (ADR).
There are a number of different ways of resolving a dispute without going to court:
- As in Afzal’s case, some traders belong to alternative dispute resolution (ADR) schemes.
- Depending on the type of claim, if you have insurance it may be quicker and easier to claim on that.
- If it is a problem with goods or services, and you paid by credit card, you may be able to make a claim for a refund under s75 Consumer Credit Act.
- If it is a problem with goods or services, and you paid by debit card, you may be able to make a ‘chargeback’ claim under the Consumer Credit Act.
- There may be an ombudsman who can help sort out your problem.
For more detailed information on alternative ways to resolve a dispute see How to sort out your legal problem before or instead of going to court.
Quick check – What are the alternatives?
Is there another way of sorting out your dispute which might be:
- Less stressful
- Better for ongoing relationships?
Deciding to do nothing is different from not doing anything because you cannot decide what to do. If you look at the situation you are in and decide to take no action at all, as long as nothing bad is likely to happen as a result, this may be the best outcome for you. It’s a definite decision that may also be a great relief. However, get advice, if you can before deciding to do nothing if your problem is urgent or has to do with threats to your home, livelihood, health or safety.
Now that you have asked yourself the key questions you should have a better idea about whether or not to sue. If you want to begin the process please read the rest of the guides in this series - a good place to start is Who to sue?.
If you want to try a different approach see How to sort out your legal problem before or instead of going to court.
If you have decided to do nothing, hopefully you are happy that your decision is an informed one.
What does it mean?
Alternative dispute resolution (ADR) – a range of options for resolving disputes, often without going to court.
Assets – money and savings and other valuable items which could be sold to pay debts, for example, a house, flat, jewellery or car.
Cause of action – having a legal case you can start a claim about.
Civil court – a court, usually a county court, where you can bring a claim for damages (financial compensation) against someone who has wrongly caused you loss, damage or injury.
Civil claim – a non-criminal legal case against an individual or a company for compensation and/or to assert a particular legal right.
Claimant – person or organisation who starts the case.
CFA (Conditional Fee Agreement) – these used to be known as ‘no win no fee’ agreements. You only pay the lawyer’s fees and expenses in certain circumstances – usually if you win, out of your compensation.
Damage – this is when you have suffered some sort of loss or harm – it is very confusing that this word is so similar to ‘damages’ which is used to mean money compensation.
Damages – the name for money compensation awarded by the court (and see Damage above).
Defendant - person or organisation the case is brought against.
Duty of care – when someone has a legal responsibility to take a reasonable level of care to protect you from foreseeable harm.
Fast track – the processes and procedures the court applies for cases worth between £10,000 and £25,000. Cases involving personal injury where you are claiming over £1,000 for the personal injury part of your claim but the overall amount is under £25,000 also follow the fast track, as do housing disrepair claims where the cost of repairs is over £1,000, but the overall amount is under £25,000.
Issue of proceedings – the formal start to the court proceedings.
Judgment in default – when the defendant has failed to file a defence in time, the claimant can ask the court to enter judgment (you have to fill in a form and send it to the court).
Liability – proving fault.
Litigant in person – a person bringing or defending a claim without a solicitor or barrister.
Litigation – the process of going to court.
McKenzie friend – the name for someone who can support and help you in court, for example, by taking notes or quietly giving you advice, but cannot speak for you.
Mediation – a way of helping you and your opponent try to find your own way of solving the problem.
Negligence – negligence is when someone or an organisation owes you a duty of care, they have broken the duty of care, and you have suffered foreseeable injury or damage as a result.
Other side – an everyday phrase used to talk about the defendant and their legal representatives if you’re the claimant, and the claimant if you’re the defendant.
Parties – the names for all the claimants and defendants in a case.
Personal injury – when you have suffered the sort of harm which leaves you with a physical or mental injury.
Pre-action – before court proceedings start.
Pre-action conduct – official rules setting out how you should behave before you issue a claim.
Pre-action protocol – an official procedure explaining what you have to do before court proceedings start in some sorts of cases.
Precedents – decisions in past cases which are used by courts to help them make decisions now, for example, on liability, and also quantum.
Quantum – the amount of compensation your claim is worth.
Settle – this means finishing your case without a trial, usually by reaching an agreement with the other side.
Small claims – A small claim is one where the claim is worth under £10,000. (This is except for a personal injury claim where the overall value is under £10,000 and the personal injury element is worth under £1,000, or a housing disrepair claim where the overall amount is under £10,000 and the cost of the repairs is under £1,000.) In a small claim the court processes and procedures are more informal, and if you win or lose the costs you get back or have to pay are very limited. (New rules probably coming into force in August 2020 mean that the small claim limit for personal injury and road traffic accidents is likely to change in the future.)
Trial – the final hearing which takes place in front of a judge who decides who wins and who loses the case.
About this guide
The information in this guide applies to England and Wales only. The law may be different if you live in Scotland or Northern Ireland. The law is complicated. We have simplified things in this guide. Please don’t rely on this guide as a complete statement of the law. We recommend you try and get advice from the sources we have suggested.
The cases we refer to are not always real but show a typical situation. We have included them to help you think about how to deal with your own situation.
This guide was produced by Law for Life's Advicenow project.