You hear this all the time: ”We’ll let a judge decide.”
But this is not how courts wish to decide things, and that kind of attitude invariably rubs the judge up the wrong way and makes them more likely to find against the claimant.
Thankfully, it is not our clients who get into this sort of shenanigans, it is usually the customer. However, it is always useful to know that you are not just asking for more information because that helps to resolve the matter, but also because the court expects you to.
The Pre-Action Protocol states:
Objectives of pre-action conduct and protocols
3. Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to—
(a) understand each other’s position
(b) make decisions about how to proceed
(c) try to settle the issues without proceedings
(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement
(e) support the efficient management of those proceedings
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(f) reduce the costs of resolving the dispute
Steps before issuing a claim at court
6. Where there is a relevant pre-action protocol, the parties should comply with that protocol before commencing proceedings. Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in paragraph 3, bearing in mind that compliance should be proportionate. The steps will usually include—
(a) the claimant writing to the defendant with concise details of the claim. The letter should include the basis on which the claim is made, a summary of the facts, what the claimant wants from the defendant, and if money, how the amount is calculated
(b) the defendant responding within a reasonable time – 14 days in a straightforward case and no more than 3 months in a very complex one. The reply should include confirmation as to whether the claim is accepted and, if it is not accepted, the reasons why, together with an explanation as to which facts and parts of the claim are disputed and whether the defendant is making a counterclaim as well as providing details of any counterclaim
(c) the parties disclosing key documents relevant to the issues in dispute
So, ensure your dealings are professional and always keep and disclose the paperwork that helps your case as the judge will expect it, and it may just sway their decision in your favour.
As for the customer, if they are refusing to hand over the alleged evidence that proves their claim beyond any doubt, as they say they have, then do they really have it? Often not, so it will be us advising you and drafting documents all the way to court.
See you there, mate.
