Are rules made to be broken?

Depends on the rules and whose breaking them.

There’s a big emphasise on the benefits of going to small claims because you can do it or defend it yourself, and you don’t need solicitors.

But it’s not all plain sailing.

Firstly, there is no guarantee that you will go to small claims – you don’t get to choose. The Judge does. And there are things that can happen beyond your control that could affect that decision, such as the other side putting in a counterclaim that take you over the ￡10k threshold.

Secondly, even if you do get in to small claims, and even though the set up is much more casual to make it easier for people who are not legally represented, there are still tactical “tricks” that the average lay person isn’t going to know about and won’t know how to deal with it if it comes up.

For example, a timetable will be set by the court, which will say when each side have to serve their witness statements and documents. What do you do if the other side put their statement and documents in late? Do you ignore their statement or review it?

In practice it will depend on a number of factors such as how late the statement is, and how lengthy it is.

A brief statement served a few hours late might be treated differently from a lengthy statement served the day before the hearing.

It might also depend on whether their statement was drafted having seen your statement, which would understandably give them an unfair advantage.

So you could choose to ignore their statement, and argue to the court that it should not be allowed in. However, it’s at the Judge’s discretion to allow it in, and if the statement is allowed in and you’ve not read it, you might be at a disadvantage.

Alternatively, you could read it and be prepared, but if the Judge knows that, he may take the view that there is little prejudice to you in allowing the statement in, when he might otherwise have excluded their evidence.

In reality, every case is different, and every judge will approach every situation differently, so what should you do?

If the value of the claim is quite low, it’s probably better to just make a judgment call, no matter how frustrating it might be to know that this may mean the other side will get away with it.

If it’s a higher claim, then it might be worth having a chat with a solicitor to talk through the options, and agree strategy and tactics. 

Kleyman & Co Solicitors. The full service law firm. Unbreaking the rules.