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Deciding whether to go to court

This content applies to England & Wales

Factors involved in deciding whether to go to court.

Introduction

Before going to court, an adviser is likely to try to negotiate with the other party or her/his representative to attempt to reach a settlement. In some cases this is virtually compulsory, because if a party has not attempted to resolve a dispute without going to court, s/he may later be penalised by having to pay more court costs.

There are other ways of settling a dispute without going to court, such as alternative dispute resolution (ADR - see below). Advisers should always consider whether court action is likely to achieve the best outcome for their client, or whether it would be better to try another alternative. The various methods and factors to consider are discussed below.

Negotiations

Clients often approach an advice centre for help with a housing issue before any court action has begun. For example, as a response to a landlord issuing a notice to leave, an adviser might negotiate on behalf of the tenant by informing the landlord of the client's legal rights to remain in her/his home.

Negotiations are conducted during the period that an adviser deals with a client's problems until a satisfactory settlement is reached or court action is commenced. The Civil Procedure Rules allow either party to make and accept offers to settle the claim at any time before or after proceedings have been commenced.[1]

Without prejudice

Advisers who are in negotiations on behalf of clients where there is a possibility of starting court action should consider whether to conduct the negotiations without prejudice. This means that no conversations, letters or agreements that are part of the negotiations can be used as evidence in court without the agreement of both parties. The aim of this is to allow the parties to negotiate more freely. When talking to the other party's solicitor, an adviser would state clearly that the conversation is 'without prejudice' and those words would be clearly marked at the beginning of any letter intended to be 'without prejudice'.

If advisers are writing a 'without prejudice' letter, they must be sure that their client accepts the proposals it contains, because if it is agreed between the parties, it becomes binding and can be used in court to enforce the agreement.

Alternative dispute resolution

Going to court is not the only way of resolving a dispute. Alternative dispute resolution, or 'ADR', is a term used to describe the ways that parties can settle civil disputes with the help of an independent third party and without the need for a formal court hearing. There are various processes such as community mediation, commercial mediation, trade association arbitration, non-court based arbitration, and Ombudsman services and regulators, and they all have different characteristics. Some types of housing dispute, such as neighbour disputes or relationship breakdown, may be particularly suited to non-court methods.

Read more from Advice Services Alliance about Alternative Dispute Resolution.

Factors affecting the decision to go to court

Before advising a client to take her/his case to court, advisers should discuss whether the best option is for the case to be decided in court, as well as the likelihood of success. The factors affecting this decision include time, cost and stress. Each factor is examined below.

Time

Taking court action can be very time-consuming. If the client does not have a solicitor or another person representing her/him, s/he will spend time getting copies of all the relevant documents, filling in forms, possibly getting statements from witnesses and attending court hearings. There are also time limits within which a court case can be started, which may affect whether the case can be commenced.

Cost

A client has to pay a fee to start court action, the size of which depends on the value of the claim. S/he will also have to pay further fees if the case is defended. Court fees are payable whether the client represents her/himself or is represented by an advice worker or solicitor. Other costs could include travel expenses and reports from expert witnesses. If the client loses, s/he will normally be ordered to pay all or most of the opponent's legal costs. S/he may be entitled to help with legal costs through legal aid but this will depend on her/his income and savings.

More information on legal aid is available from the Legal Aid Agency.

If a client is on benefits or a low income, s/he may not have to pay court fees and/or s/he may be allowed to pay a reduced amount. Where a person does not have to pay court fees by law, for example because s/he is on certain benefits, this is called an exemption. Where a person does not have to pay fees or where they are allowed to pay a reduced amount because the court thinks that s/he would suffer financial hardship if they paid full fees, this is called remission. Clients wishing to apply for exemption or remission need to complete form EX160A, which is available from county court offices, and may need to provide evidence of their means.

Download Court Form EX16A and explanatory notes from the Ministry of Justice.

If the client has a solicitor, s/he may be able to arrange a conditional fee agreement, for example on a 'no win, no fee' basis. For more information, see the section on Costs.

Stress

Clients may be living in difficult, stressful circumstances while waiting for their case to be heard in court. The fact that taking court action does not guarantee a successful outcome can also cause further anxiety. Most people are unfamiliar with court buildings, procedures and protocol, and all these can be intimidating for clients.

[1] Civil Procedures Rules, rule 3.

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