Going to court

Going to Court

The first thing to say about taking your claim to court is that it is a long, complicated and technical affair which is not particularly cheap if you lose, and is not for the faint hearted and should be regarded as a last resort. But if you want your day in court it can be very satisfying when you win! 

The following advice relates to taking a claim to the Small Claims Track where the limit for claims is up to £10,000 and holidaymakers can bring the claim without the assistance of a solicitor if they so wish. For complicated claims and for claims that exceed £10,000 it is recommended that professional legal advice is sought.

The technical rules for the Small Claims Track can be found here and further guidance is available here. These are the Civil Procedure Rules and are not the easiest of documents for a lay person to navigate. For easier to read guides you might be better off going to the MoneySavingExpert site or Citizens Advice

One advantage of the Small Claims Track is that win, lose or draw you do not have to pay the legal costs of the other party unless your claim was frivolous or vexatious.

What is described below is how you take a claim to the Small Claims Track, popularly known as the Small Claims Court.

Getting to Court

• You should start by writing a letter before claim setting out precisely what you want from the travel company and setting a deadline for a reply. You can bring a claim for up to £10,000 but only £1,000 if it is for personal injury.

• You start by going to the Court Service website where you have a choice: you can make a claim online or you can download Form N1 and fill it in manually.

• Whatever you choose make sure you fill the form in diligently because it is difficult to change it later.

• Make sure that you also claim interest. This could be quite a substantial amount if there is a long delay before the case is heard.

• You will have to pay a fee on a sliding scale. This is the latest scale.

• You pay slightly more for making a paper claim than an online claim

• The court will send you an allocation questionnaire in which you will be asked whether you want to settle the matter by mediation; which court you would like the hearing to be in; whether you need an expert witness; and what dates you will not be available.

• Mediation is voluntary and will be by telephone, usually for a one hour slot. The mediator is not an expert in travel law and the mediation could be quite superficial e.g. the mediator will simply try and see if you can compromise on a figure in the middle.

• The mediation is confidential.

• If you settle the case by mediation you will not get your court fee back so take that into account when trying to settle

• The court will send you details of the date and time of your case and if the case goes to court you will also have to pay a hearing fee on a sliding scale.

• If the defendant travel company does not reply then you will win by default.

• Before you go to court you should ensure that the defendant travel company is given all the evidence that you will be relying upon – the holiday brochure, invoices, receipts, photographs etc.

• You should also prepare your Witness Statement. Basic guidance on Witness Statements is given here in the Civil Procedure Rules. Essentially you should set out as clearly and lucidly as possible what went wrong and why you want compensation. You should send the Witness Statement to the court and the defendant along with all the other evidence you are relying upon.

The Court Hearing

• Make sure you arrive in good time. You will have to go through security and check in with the court clerk.

• In order to save the court’s time, but not yours, several small claims may be allocated the same time slot. This is because many cases are settled at the last moment and it is not considered efficient to have the judge sitting around twiddling his fingers with no cases to hear. As a consequence you may find yourself sitting around waiting most of the day for a hearing and it is not unknown for cases to be adjourned to another date if there are too many cases to hear.

• The hearing itself is relatively informal and private. It will be held in the District Judge’s room. There will be no jury and you will not be asked to swear an oath.

• You may be very anxious but try and remain calm and do not get angry

• The hearing will be recorded

• If you have provided a Witness Statement you will not be required to give that evidence again although the judge may ask you to very briefly summarise it.

• You can be cross-examined on your evidence

• The judge may also ask you questions

• The judge will give his/her decision at the end of the hearing and they must give reasons for the decision.

• If you win you will be awarded the compensation the judge orders, your court fees, any interest you have claimed, your travel expenses and some loss of earnings, if any.

• If you have employed a solicitor to bring your case you will not be awarded their costs

• If you lose you will only have to pay travel and accommodation costs, if any, of the defendant unless the court decides that your case has been frivolous in which case you may be ordered to pay the defendant’s legal costs.