Alternatives to court action
Alternatives to court action could help avoid the time, cost and stress of taking a case to court.
Settling a dispute out of court
Before going to court, there may be negotiations with the other party or their representative to attempt to reach a settlement. In some cases this is compulsory, because if a party has not attempted to resolve a dispute without going to court, they 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). 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.
Negotiations before court action
People 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 their 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.
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.
Negotiations could be 'without prejudice except as to costs', which means that the content of the negotiations may only be revealed to the court when the dispute in the court has been resolved and the court considers the question of costs.
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 (ADR)
Going to court is not the only way of resolving a dispute. Alternative dispute resolution (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.
Factors affecting the decision to go to court
Advisers should discuss with their clients if going to court is their best option.
Taking court action can be very time-consuming. If the client does not have a solicitor or another person representing them, they 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.
A client has to pay a fee to start court action, the size of which depends on the value of the claim. They also have to pay further fees if the case is defended. Court fees are payable whether the client represents themselves or is represented by an advice worker or solicitor. Other costs could include travel expenses and reports from expert witnesses. If the client loses, they will normally be ordered to pay all or most of the opponent's legal costs. They may be entitled to help with legal costs through legal aid but this will depend on their income and savings.
Information on legal aid is available from the Legal Aid Agency
If a client claims benefits or has a low income, they may not have to pay court fees and/or they may be allowed to pay a reduced amount. Where a person does not have to pay court fees by law, for example because they are claim 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 they 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, they may be able to arrange a conditional fee agreement, for example on a 'no win, no fee' basis.
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.
Last updated: 29 March 2021