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Original poster

Small claim. Will I really have to pay for their solicitor? (Scared!)

76 replies

LostInABlizzard · 02/04/2021 12:54

I've made a claim against a company for £10,000. They have a solicitor representing them in their defence. I can't afford a solicitor and when I started this I was following guidance which stated that for a small claim, no legal costs will be awarded to either side no matter who wins/loses the claim.

They have just made me an offer to settle (for £5000) and the offer letter states that if I refuse it I will be seen as unreasonable and the court will "in all likelihood" make me pay their legal fees.

I thought they were just trying to scare me but then I found this article dated September 2020 that states:

"Exceptions to the Small Claims Costs Rules
Where the parties consented to a claim being allocated to the small claims track, although its financial value exceeded £5000, the rules on costs are different. The judge will be able to make the same order for costs as if the claim had been dealt with on the fast track (broadly speaking this covers claims with a financial value of between £5000 and £15,000). While these costs are still limited they are substantially more than could be awarded on the small claims track."

Does this mean that I could in fact have to pay for their solicitor? They are being represented by one of the partners in the legal firm they are using. This could ruin me financially as I don't have much in savings.

I did consult a solicitor a year ago when this issue arose, and was told I have a good case, but his fees mounted up so quickly that I had to stop using him. I haven't included those fees in my claim as I wanted to keep it under £10,000 so it would be a small claim, for that very reason.

I'd be grateful for any advice or reassurance if anyone knows about this, or can point me to the relevant rules. I've looked at the Civil Procedure Rules but can't find anything to confirm what it says in the article.

OP posts:
Original poster
LostInABlizzard · 02/04/2021 12:56

The article is here by the way. It was written by a barrister so I assume they know what they are talking about:

www.aboutsmallclaims.co.uk/who-pays-costs-court-judgment.html

OP posts:
TheQueef · 02/04/2021 13:00

The costs will be capped but the truth is dependant on your case and if it is deemed their costs are reasonable.
It's a standard scare but there is truth to it.
Do you have a good case?

TheQueef · 02/04/2021 13:01

IANAL btw I've just been to small claims four times as a lay.

Original poster
LostInABlizzard · 02/04/2021 13:04

TheQueef Thank you; I do have a very good case. Straightforward breach of contract (which they have admitted but are trying to blame someone else).

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anniegun · 02/04/2021 13:06

It is very unlikely you will have to pay their solicitors costs
www.fosters-solicitors.co.uk/news/litigation/the-small-claims-track-who-pays/651

Chocolatetrifle · 02/04/2021 13:09

Former litigation solicitor here.

You need to seriously consider the prospects of your claim. Are you likely to be successful in your claim? Are you likely to beat this offer? It sounds like the defendant is taking this claim seriously to defend the claim this far , but they concede that it is likely you will be awarded something by the court. Does the offer refer to Part 36 CPR by any chance? If so, such an offer is not applicable in the small track.

If you continue to pursue a claim without reasonable prospects you could be penalised on coats.

TheQueef · 02/04/2021 13:10

The judge would have to think you were really taking the piss and the other party had really no other option but to use Legal professionals. That's how it was explained to me when TUI got some Billy Big Bollocks to defend.

Don't be scared, if you are right you are right.
Honestly it's Very straightforward.
Plus you feel like Kavanna QC when you stub them out. Wink

Original poster
LostInABlizzard · 02/04/2021 13:11

anniegun Thank you; this is the type of information I had relied upon before making the claim. However, the warning in their offer letter made me research it again and then I found the article linked above.
Because my claim is more than £5000 I wondered if this would apply.

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Chocolatetrifle · 02/04/2021 13:13

*Penalised on costs that should say.

Original poster
LostInABlizzard · 02/04/2021 13:20

Chocolatetrifle
Thank you for your reply. The offer letter only refers specifically to Civil Procedure Rule 27 14 (g), but says "or others that are applicable".
I don't believe I have been unreasonable at all and I do think my case is watertight. (I don't actually understand how their solicitor is advising them that they have a defence!)

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Original poster
LostInABlizzard · 02/04/2021 13:21

TheQueef Thank you. That would be nice! Smile

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Chocolatetrifle · 02/04/2021 13:29

Have they filed their defence as yet? Do you know what they are saying in response to your claim? This offer could be being made now to save them the cost of actually preparing the defence.

Elieza · 02/04/2021 13:31

I know nothing about legal matters but I’m thinking:

if you settle for £5k that’s it. But why are they offering it? If they thought you’d lose them they’d say to you see you in court loser! So they must think you’ve a good chance of winning. Or they’d offer nowt. So they are using scare tactics to try and get a better deal for their client.

If you take them to court and you are SURE about the claim being likely to succeed for the full £10k, or even £8k or £5k if you have no legal costs if your own, then that’s significantly better or just the same. There’s nothing to lose.

If they thought you would win in court they’d want to settle out of court to get a good deal. So that leads me to believe that they DO think you will win and are clutching at straws to try and save their client having to give you £10k.

I’d see if you could speak with another lawyer (not the original one) and see what he says. Is the first meeting free or is that just in other types of legal advice?

If you think you will win more than £5k I’d continue with court action.

Legal minds on here, does that make sense? Or am I havering?

Original poster
LostInABlizzard · 02/04/2021 14:05

Chocolatetrifle Yes they have filed a defence—it's based on factual errors. I think if I write to their solicitor and point this out that they might make a better offer?
On the other hand they might already know this and perhaps that's why they've made the offer in the first place.

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Original poster
LostInABlizzard · 02/04/2021 14:08

So they must think you’ve a good chance of winning. Or they’d offer nowt.

Elieza That's what I'm thinking also! If they think they are right then why offer anything? Unless they are thinking the solicitor fees for representing them in court will cost that much anyway. But then again they are saying that I will have to pay those. It's very confusing.

I have tried the "free legal advice" route from several sources (home insurance etc.) and it always ends up with them saying it looks like I have a case and I should hire a solicitor.

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Original poster
LostInABlizzard · 02/04/2021 14:10

… Or perhaps this is usual in mediation: do they always make a low offer in the expectation that the other side will ask for more and it will be settled somewhere in the middle?

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Margaritatime · 02/04/2021 14:26

This is their first offer, it is then up to you to counter.

Is the £10k the actual loss you suffered or does it include original solicitors fees etc?

I would write back clearly setting out the factual errors and provide supporting evidence and reiterating that you are seeking £10k. I would point out that you have not included your legal fees nor any claim for distress (only if you could justify that)etc.

wingsnthat · 02/04/2021 14:29

It’s hard to give advice without knowing the specifics

£10k is a high figure, you really can’t hire a solicitor?

Margaritatime · 02/04/2021 14:30

To add, a good lawyer would suggest a letter and offer to settle as a cheap way to resolve a case. I think if you keep dialog open and remain firm they may settle because they wont want to go to court.

Original poster
LostInABlizzard · 02/04/2021 14:30

Margaritatime Thanks. They have said this is their "first and final offer" but that may be scare tactics also. (?)

£10k is the loss plus 8% simple interest (it goes back a few years). I haven't claimed for distress or my solicitors' fees as I wanted to keep it in small claims court.

As I have agreed to mediation do I have to agree to less than the £10k so as not to seem unreasonable?

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wingsnthat · 02/04/2021 14:30

It won’t work against you to refuse their offer if it doesn’t cover your costs. You just need to write back with a full breakdown of what you’re claiming for and that you will only accept £X amount

Original poster
LostInABlizzard · 02/04/2021 14:32

Margaritatime I also made a complaint through the Ombudsman and said if they paid without going to court I would not add any interest to the claim, but they denied responsibility.
The Ombudsman said they were in the wrong but couldn't order them to pay me that amount as it was out of their jurisdiction.

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Original poster
LostInABlizzard · 02/04/2021 14:34

It won’t work against you to refuse their offer if it doesn’t cover your costs

wingsnthat I wondered if it would be seen to be unreasonable to have added 8% interest to the claim. This is the amount that was suggested in the small claims court guidance so I followed that.

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HollowTalk · 02/04/2021 14:36

If the Ombudsman said they were in the wrong then I wouldn't settle for anything less than the full amount. Is it a business to business matter or business-client/customer matter? If you are an individual against a company I'd hold tight and go for the full amount - that £10K to you is worth much more than it is to them.

Original poster
LostInABlizzard · 02/04/2021 14:38

wingsnthat I really can't afford it. The other solicitor charged me close to £3000 just to review the case and write one letter to them demanding payment. They sent a breakdown of their costs when I queried the bill and it was all correct—just that they charge a very high fee per hour.
I am confident that I'm right but nothing is guaranteed so I can't afford to gamble on getting another solicitor; I'd have to borrow money for that.

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