Article by Nicola Solomon published in The Author of Autumn 1999. Leading literary lawyer Nicola Solomon, a Deputy District Judge and Partner of Finers Stephens Innocent (179 Great Portland Street, London W1W 5LS, tel. 020-7344-7652) has kindly given AKME permission to reproduce this article. She can be e-mailed at nsolomon@fsilaw.co.uk.
The article is reproduced without any comment or editing by AKME.
Have you ever been owed royalties? Has a magazine refused to pay for an article it commissioned, or a publisher failed to return your illustrations? Has Someone infringed your copyright? Have you thought that there is no point in taking court proceedings because they would be too expensive or complicated? Now may be the right time to sue.
You are probably aware of the recent shake-up of our justice system. Although a great deal of publicity has been given to new terminology, the reforms run much deeper. The aims are to ensure that the management of litigation is in the interests of justice, and to reduce procedural complications. In particular, the courts will now try to see that procedural steps are proportionate to the size and importance of the claim.
This new focus should nlake it easier for litigants in persorl to make claims. Large and difficult claims (now called multitrack) may still be procedurally complex and you will almost certainly need the help of a solicitor. However, if your claim is under £15,000, the courts are likely to impose a simpler procedure.
Claims between £5,000 and £15,000, where the trial is likely to last less than a day, will be put in the 'fast track'. Such claims should not be hijacked by an unscrupulous defendant raising a large number of procedural points. The courts must now take into account the relative size and financial power of the parties, as well as the magnitude and importance of the claim. They may, for example, order that a defendant company, represented by solicitors, must prepare court documents on behalf of both parties. If expert evidence is needed, the court is likely to order the parties to instruct one expert, rather than each have their own. Trials will be heard within 30 weeks of the claim being lodged. Costs will be limited, so that, even if you lose, you will not be at risk of paying disproportionate costs that a defendant has run up to exert financial pressure on you. The actual costs of trial will be limited to a fixed amount. The net result of the changes is that claims should become simpler and the amount of costs you have to pay if you lose may be reduced. You should probably obtain the advice of a solicitor on the merits and likely costs before embarking on a fast-track claim.
Claims for under £5,000 will be put in the 'small claims track'. This is a less formal procedure, similar to the old small claims court or arbitration procedure. Subject to very limited exceptions, each party bears its own costs and the winner cannot claim any costs from the loser except for some out-of-pocket expenses. If you have a claim for an amount under £5,000, or which you are prepared to limit to £5,000, you should have no difficulty handling it yourself, possibly with help from the Society's staff. We have updated the Quick Guide to Bringing a Small Claim in fhe County Court. It is available from the Society (free of charge to members). The courts have also produced a series of helpful guides to the small claims track.They are available from any county court.
If you decide to embark on a claim, I highly recommend that you read the publications. What follows is not a step by step guide to taking a claim. Instead I give my top ten tips to winning your claim from my perspective as a solicitor in private practice and a Deputy District Judge who often hears small claims in the County Court.
1. Be professional in all your dealings. If you are commissioned to write an article, confirm the main details in writing. If you write a book, make sure you have a signed contract. If you buy consumer goods, keep the receipt and any contract or guarantee.
2. Keep all documents. Although it may be a counsel of perfection, try to keep all relevant papers and keep them free of notes. We all tend to make jottings on letters, but the court will want to see unannotated copies.
3. Put it in writing, raise any problem as soon as it arises, both by telephone and with confirmation in writing. Before you take a claim, write a letter indicating that the matter must be dealt with within a specified time (usually 21 days) after which legal action will be taken. The letter, like all legal correspondence, should be clear and concise. Too much detail is as unhelpful as too little. State when and how the debt or loss was incurred, summarise what steps you've already taken, and the action or amount now required. Try to be objective and dispassionate. Quote invoice numbers if any. Keep copies of all correspondence.
4. Check credit-worthiness. Before taking legal action, you must consider whether you would simply be throwing good money after bad. If the proposed defendant has no money, there is no point claiming. If a person has been made bankrupt or a company is in liquidation, don't start legal action; make a claim to the receiver or liquidator.
5. Find the right suspect. It is extremely important that you sue the right person or company. Publishers often have many imprints, some of which are held in separate limited companies. Unscrupulous traders may own a multiplicity of companies; when a claim is made against one of them, they conveniently put it into liquidation. If you claim against the wrong company, your claim will be struck out and you will have to pay costs to the innocent defendant. The company name must be completely correct. A claim may be struck out, for example, if you use 'and' instead of '&'. As well as checking the contract and any notepaper, make a search at Companies House to find the proper name and registered office of the company. You can do this free on the Internet by searching www.companies-house.gov.uk
6. Check the legalities. Ensure your claim is good in law and that the legal basis on which you are claiming is properly set out in the Particulars of Claim. Claims must normally be made within six years of the date the claim arose. There are some specimen particulars of claim in the Quick Guide.
7. Observe the formalities. Send in the correct documents with the correct number of copies and pay all court fees. If you don't, the claim will be struck out.
8. Watch your language. One of the main changes to the rules has been new terminology.The person taking a claim is no longer the 'plaintiff' but the 'claimant'. Writs and summonses have disappeared and claim forms have taken their place. Many other simplifications have been made. Using the new wording looks professional and shows you know what you are doing. The courts will not be impressed by quasi-legal verbiage; they will expect you to be concise and clear. These days, most of the claim is put in writing and read by the District Judge before you get to court.
9. Claim interest. You are entitled to claim interest, even if this is not stated in the original contract. It can add a substantial amount to your claim.
10. Prepare your case. The hearing will be informal, but you still have to prove your claim. If it is evenly balanced you will lose. It is therefore important that you do everything possible to impress the Judge. One very good way to do so is to prepare a bundle of all documents you are relying on and to number them. Give one copy to the Judge and one to the other side, so that everyone can follow your evidence easily. It is also useful to prepare a written statement of your evidence and do the same for all your witnesses. You will then usually be able to rely on those statements rather than give oral evidence at the hearing. This can be extremely helpful if you are more comfortable with writing than with speech. Remain clear, concise and unemotional. Don't lose your temper; it almost always loses the case. Carefully answer any questions the Judge or other party asks; do not answer any questions you are not asked. The Judge may well limit the time you have to speak, so make every word count. Do not talk too quickly, as the Judge has to take notes and, if there is no tape recorder, must take a full transcript of the evidence. Call a male District Judge Sir or a female one Ma'am (though most accept Madam). Finally, if you are successful, do not forget to ask for witness expenses for yourself and other witnesses. You may claim out-of-pocket expenses and actual loss of earnings of up to £5O per day.
If you follow these tips, are clear and honest, and your claim Is good, you should have no difficulty in being awarded damages in the County Court. Good luck!
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