Going to court
Make a Familiarisation Visit
If you feel at all nervous about taking your case to court then why not spend a couple of hours at your local county court to see what goes on.
It is very rare that members of the public attend these hearings but you are allowed to do so if you wish.
Speak to the court usher in one of the court rooms and say that you want to sit in quietly on two or three court proceedings. Make it clear to the Usher that you are interested in sitting in on a case or two in the judge's office - not in open court. This will surprise them further still as most people really want to see a robed and wigged judge sitting below the Royal Coat of Arms. However, you want to see what it is like in the Small Claims procedure and this is almost always conducted in an office.
It is your right to do so but as the usher will be surprised at the request, he/she will ask the judge who might just say yes or as he will be surprised as well, might ask you why you want to.
Just tell them that you are suing someone soon and you are nervous and you want to see what happens. I am sure that they will help you. In fact if they don't then come back here because we will have an issue to discuss with the court.
As long as you sit quietly and listen - don't take notes - it will be fine. You might even find that the judge may chat with you between cases and give you some tips! (I once ended up chatting with a judge about our old sports cars as we discovered that we both owned the same model. Although mine was much faster than his :twisted: )
Do not attempt to discuss your forthcoming case with him - unless he brings it up himself. We have had one user who was asked about his case by th judge. The judge expressed great interest and gave tips about the way the case should be handled.
You will very likely be the only other person in the room apart from the judge and the two litigating parties. You should go on your own - not with a friend or else your accumulated presence may dominate the court too much.
While you are listening to the proceedings, listen to how people speak - rather than to what they say. Do they speak quickly, slowly, clearly? Does the judge help them? What is the judge doing? How do they deal with documents? How do they ask or reply to questions? Everything that you notice is good practice for your own BIG DAY.
Making a Deal
If there is a deal to be had, the other side will offer it. You don't need to offer one or ask if they want to do one.
The benefit of a deal to the bank is that they can settle with you without having a judgment made against them. However, this doesn't mean that the court can't get involved.
Once you are in the court building you should only make a deal on the condition that the bank will consent to it being agreed by the judge. Don't agree to drop the case for any reason. Do not agree to an adjournment to give time to make a deal. the bank have had their time. Make the deal then and there or else go into court.
There is a post about the Nationwide reneging on its promise to remove a default. If the deal had gone to the judge for his agreement there would have been no going back on it.
If a deal is struck then indicate to the usher that you think that you have an agreement and that you want to see the judge. If you are called in for the hearing while you are making the deal, then ask the usher if you can have some more time because something is being worked out. When the deal is sorted out - and you have taken a note of what is agreed and compared it with your opponent's note, go to see the judge.
Tell the judge that you have an agreement.
The judge will be pleased about this. He will take a note of the agreement and write it out as an order "That within 14 days the Defendant do pay to the claimant £xxxxx pounds plus interest up to today at 8% plus undertakes to remove the default against claimant on the credit register - in default of which judgment for the claimant and payment forthwith." or whatever you have agreed. Once you have got this, you have won - although not on the merits and the defendant has no judgment against him. You will receive the sealed order though the post in the next week or so.
If the judge for some technicality will not order removal of your name from the credit register then you should not accept the deal but go ahead and try to argue your case and secure your judgment. Explain this to your opponents while you are making the deal so that there is no ambiguity about your position. The credit register is at least as important to you as the money.
It is very likely that a deal may be contained in a Tomlin Order. There are certain things which the judge has no power to order - a confidentiality agreement, say. There may even be difficulties about ordering the removal of your name from the credit register. In this case, a Tomlin order may be the way forward. This is a written agreement drawn up between the two parties whereby they agree to pay or to accept money, confidentiality, removal of name from register or whatever you have agreed - including the suspension of all legal action. The written agreement is put before the judge who will record it and give it the approval of the court. It is a kind of court approved contract between the parties. If one of the parties doesn't carry out their side of the bargain - then, Hi ho, Hi ho - It's off to court we go!
Notice that if a Tomlin Order is not adhered to, then there is no judgment in default, it is just that the case is no longer suspended and you can go back and carry on pursuing your claim.
Negotiating the deal
Have in mind what you want. Say it to the other side. Don't try to justify yourself. Explain to them once and then be quiet. If they want it then fair enough. If they don't then too bad. They can try their luck in court.
Don't forget that the money means nothing to them. They are happy to pay you the money. It means nothing to them that you settle for a couple of hundred less than you wanted or that you stuck out for the full amount. They will be far more concerned about not removing your name from the register. They really do care about that. To remove your name is tantamount to admitting that they are wrong. For the banks, removing your name from the register is almost as bad as having a judgment against them. It also is a possible first step in a case for defamation.
Do not accept a gentleman's agreement or even a written agreement which has not been put before the court. Make sure that either your agreement is recorded by the judge with judgment in default - or at least that you have a Tomlin Order.
Bringing Your Case To Court
What are the issues?
Of course it depends on what the bank says in their defence.
The banks two possible arguments are either that
A• The charges levied are just enough to recover their losses in your actual case
B• That they are providing you with a service which is contemplated by the contract and that they are merely charging you for this service and making a profit from it as would any other business.
They are likely to plead both of these arguments in the alternative.
Because you are the person making the challenge in the court, it is your responsibility to prove your case. You have the burden of proof.
The standard of proof is not the criminal standard of beyond reasonable doubt It is the civil standard of proof. The civil standard of proof is the balance of probabilities.
This means, in theory, 51%. This means that the judge must merely be persuaded that you are probably right. Then the burden shifts to the bank to move the balance of probabilities back against you.
However, it is likely that a judge would want more certainty than that and it is likely that he would want your case proved so that he is fairly confident of the merits of your case. You might say that this is 65% sure at least. (These are just figures which I am using to convey a flavour of the ideas.)
There are two steps to proving your case.
You have to convince the court as to the facts and then you have to convince the court that when the Law is applied to those facts that it all adds up to an unenforceable charge being levied by the bank.
This is the most important part of your case. The law is not really in doubt.
The problem is that you have no access to the banks accounting information which will let you actually demonstrate to the court exactly what it does cost the bank to respond to your transgressions
This means that you can only offer circumstantial evidence and then encourage the court to draw its reasonable inferences.
You must show the court that:
If the charges are to pay for the cost of transgressions that they exceed that and are disproportionate contrary to common law and consumer legislation
If the charges are the price of a contractual service then the price exceeds what is reasonable as required by S.15, Supply of Goods and Services Act 1982
What can you offer the court?
On the issue of whether or not the charges are proportionate:-
That the process is an automated process.
That the process operates many thousands of times each day and millions each year so that the cost of it is spread over a huge number of transactions and shared equally between them.
That the bank has been invited to provide a proper breakdown of its costs and that it will not do so.
That a senior and highly respected member of the banking industry Peter McNamara, said on BBC Radio in 2004 that the charges were used to fund free banking for all personal customers. (This argument is especially useful for claims against Lloyds as he was head of personal banking at Lloyds). You should produce a CD of the interview along with a CD player. Give the bank an advance copy about 21 days before the hearing(recorded delivery)and warn them that you will be producing it in court. Warn the court as well.
You can call in other documents such as minutes of select committees or letters to you or to others where the banks either expressly or impliedly admitted that the charges are more than is needed to cover their losses .
On the issue of that the charges are merely a profitable service:-
You are arguing that under s.15 Supply of Goods Act the cost of the service is required to be reasonable. S.15 says that where no price is agreed at the time the contract is made, that a reasonable price will be implied.
The cost of blocking a DD and sending letter is most probably less than 50p (or whatever you think that you can argue). The bank is a High Street business. Normal mark-ups on the High Street are 100%. It would not be reasonable for the bank to mark up significantly higher than this without a full and detailed explanation.
The actual cost cannot be very high because the service is highly automated and operates millions of times per year so that the cost is spread and shared widely.
The bank has been invited to provide a detailed breakdown of it costs and it will not do so. You can bring in useful documents as well where for example the bank has argued that the charges do only allow then to recover their losses. If the bank argues this then it effectively destroys their case that the charges are he reasonable price of a service.
Read through this guidance. Practice the logic. You will find that it will suddenly click with you and at that point you will be able to talk about it fluently and also develop upon it if you are called to do so in court.
The Court Hearing
- Check the time and the date.
- Be there and don't be late.
- Wear smart clothing.
- Take a notepad and a couple of pens.
- Have your papers well organised in a ring binder with separators and/or marked post-its.
- Have a second ring binder (different colour) containing two copies of each of the papers which you have in your main ring binder. These are in case you need to give any papers to the judge or to the other side.
- If the judge asks to see any paper from you then give him what he wants and offer a copy to the other side.
If you want the judge to see a document then also give a copy to the other side as well. The judge is addressed as "Sir" or "Madam" The proceedings on the small claims track are usually in a largish office with a T shaped desk. The judge will sit at the same level as you at the top of the T. You and your opponent will sit on either side of the "leg" of the T.
When you arrive at the court you will see some notice boards with the court lists on them. Find your name and note which court number you will be in and at what time. Go to that court.
Find the usher who will be a person in a gown with a clipboard. Introduce yourself to the Usher and tell him/her that you are there "in person" (acting for yourself). Also ask if your opponents have arrived yet. The Usher will mark you down as arrived and then you wait you turn to be called. If you know who the opponents are, go to them and introduce yourself. Ask their names and make a note.
Be polite but don't try to discuss the case unless they want to. Don't make any deals at this stage, BUT see below.
Go and find a place to sit and try and relax.
When you are called, follow the usher through to the Judge's room. When you enter you will be shown to your place.
Bid the judge "Good morning Sir / Madam."
Conducting the case
Normally as the claimant, you would introduce yourself as the claimant and introduce your opponent giving his name and who he is acting for.
You remain sitting throughout the proceedings.
As the judge is aware that you are in person, he may well just start and take the initiative.
You will not be sworn in but the judge may swear you or your opponent in later if he feels that he needs to or he is asked to for some reason.
As the claimant you will have to explain you case first. Speak clearly and slowly. It is very easy to go too fast. The judge may be taking notes so don't go too fast for the judge. Stop frequently so that the judge has time to catch up.
Tell your story.
Show your statements (or better still a schedule of the charges which you have paid)
Explain why you object to the charges.
Explain to the judge what are the cases and the statutes which you are relying on (you will have warned the court and the other side as to what cases and statutes you will relying upon in your claim. You should have copies of these for the judge to see) highlighted at the relevant passages. He may not want to see them.
Explain to the judge what evidence you have which makes you believe that he should decide for you. Just saying that it is obvious that bouncing a DD can't cost £35 is not good enough.
Explain to the judge what particular hardships you have suffered as a result of the charges - defaults, loss of home, illness etc.
When you think that you have made out your case, tell the judge that you have finished. The judge may ask the other side if they have any questions to ask you.
The judge will then invite the other side to reply.
They will explain the arguments which they have laid out in their defence and will go on to explain why you have not made out your case.
You should pay attention. Make brief notes of any point which you want to refer back to. When they have finished you may then ask them questions.
You should at least ask them questions which confirm your story.
- Are the charges really the cost of bouncing a cheque / a failed direct debit etc?
- How do you know?
- Do you set the charges?
- Who does?
- If you don't know who does then how do you know that these are the correct charges?
- Where is the person who sets them - why isn't he here today?
- You don't actually have any direct knowledge of the charging process, do you?
- Is the bouncing process automated?
- How many times a year is a direct debit bounced?
- What was the cost of setting up the system?
- When was it set up?
- This means that it has been used against 20 million people since it was introduced? (Do rough maths)
- This means that it has cost the bank about 50 pence per person? (You have to do some rough maths here)
- Is there any manual intervention in the bouncing process?
- If yes, then how is it done?
- In every case?
- How is the manual intervention recorded?
- Show us some evidence of it.
"But I asked for a data Protection disclosure of evidence of manual intervention in my account and you told me that there wasn't any." (Produce letter to court and one for opponent).
(If I got an answer like that then I would probably stop and ask the judge to swear the opponent and then ask him if he had direct knowledge of the answers he had given and if he wanted to reconsider any of them.)
Alternatively if you have a letter to someone else which shows no manual intervention then show that to the judge and ask him to swear the opponent. Then put the question to the opponent again but under oath.
The rules about asking questions is that you only ask questions to which you already know the answer.
You are not asking questions in order to find out information in order to build your case. You should have done that before you got into court.
You are asking questions in order to draw out the story in a way which you believe will bring the judge round to your way of thinking.
If your question produces a good answer then leave it. The point is made. Move on to your next point. Because you are acting in person the judge will probably assist you to make your points. And also he may ask his own questions.
Don't forget that the purpose of your questioning is not suddenly to produce some earth-shattering truth. It is merely to shake the defendant's evidence up so that the judge is unsure of it.
At the end of the defendant's case, the judge may ask you if you have anything else you want to say. You can give a little summary if you want but better not to waste time. Try and correct anything which you think the defendant said which was incorrect or unfair.
The judge will give a little summary of what he has heard and what he has decided.
If you have won, ask for costs of travel. You can also say that you have spend, say, 30 hours preparing the case. He may give you an allowance towards it. When you leave the court. Be polite to the other party and go home.
If you have lost than leave the court when the judge indicates. Be polite to the other side and go home and kick the cat.
This scenario and these questions are not a script. You must be thinking and responding for yourself. . . © Reclaim the Right Ltd.