The trial

The trial usually brings an end to proceedings (although there can be an appeal in some cases). It is important to be well prepared for the trial and make a good impression with the judge; success in court is dependent on making the right impression and looking like a credible witness.

courtroom

The format of the trial will depend on whether it’s a small claims case or one of higher value allocated to the fast-track. The small claims track is intended for use by litigants in person (without legal representation), although if you are being sued by a creditor for a consumer credit debt, they will be legally represented. Small claims are meant to be dealt with more quickly and less formally.

Although the trial is commonly referred to as “the hearing”, there can be hearings for many purposes other than the actual trial.
Legal representation

If you are lucky enough to have legal representation, then you can leave your solicitor to do most of the work for you, however, bear in mind they can only work with the evidence and facts you provide. Solicitors have to abide by the SRA Code of Conduct which states that a solicitor must never mislead or deceive the court. This means they can’t do any of the following:

  • submit inaccurate information or allow a witness (including yourself as their client) to do so;
  • agreeing with information put forward if he knows it to be untrue;
  • using evidence from a witness if he knows it’s untrue, that includes yourself as their client too.
If a client tells their solicitor that they are lying or misleading with regards to any of the facts of the case, the solicitor must not act further for that client unless the client agrees to disclose the truth to the court. If a client refuses, the solicitor should no longer act for that client.
In order to preserve client confidentiality, the solicitor should not inform either the court nor the other side of the reasons for not representing that client.
If a solicitor knows anything or anybody that could assist the other side, they are under no duty to inform either the court or the other side.
A solicitor cannot suggest that anyone is guilty of fraud or any other offence unless such allegations are relevant to the case and are supported by evidence.
Litigants in person

Many defendants will be representing themselves, particularly in small claims where, without costs being awarded against the losing part, most wouldn’t be able to secure legal representation.

As a litigant in person, you should prepare for the trial beforehand.

  • think about the salient points of your defence and how you will explain them
  • list all questions you’ll have to ask
  • have everything you’ll need ready and well organised in your own bundle, using an index and dividers if necessary to avoid flicking through piles of documents to find the one you require;
  • get copies of the most important documents so you can hand them over to the judge and the other party.
Getting to the court

drivingYou need to plan how you are going to get to court. If you will be driving, find the best way to get there, bearing in mind a lot of hearings will take place in the morning and you may have to contend with rush hour traffic. Use the internet to get directions and information about where you can park.

If you will be relying on public transport, get timetables and allow enough time to buy your tickets. Bear in mind trains sometimes get cancelled and buses get delayed, don’t run or get stuck in traffic. Allow extra time to get there, it’s always best to be an hour early than to arrive late and be all flustered.

It’s not unusual to end up settling at the court doors.
At the hearing

You have to show that, on the balance of probabilities, your statements are more credible than the claimant’s. That means you need to persuade the judge to believe you at least 51%. Try to present your case carefully, calmly and clearly without raising your voice or getting emotional, angry or upset. If you are asked a question, go straight to the point without giving a lengthy account of events, which could have the effect of diluting your key arguments.

Credibility is key. You need to convince the judge not only that what you are saying is more likely to be true than the claimant’s case but also give an overall impression of honesty and accuracy in your recollection.

If you want to win your case you need to make your point and explain it. Examples of consumer credit cases that have been won by the defendant include:

  • A defendant was able to recall clearly how they’d applied for a credit card whilst being at the airport and being asked by a nice lady whether they’d want a card. They were not asked to sign a document containing all the prescribed terms and, as this took place before 2007, the account was thus unenforceable.
  • A defendant had sent a request pursuant to s.77 of the Consumer Credit Act for a copy of their loan agreement, the claimant responded with what appeared to be a proper agreement containing all the required terms, however, on closer inspection, he found that the amounts he had been charged on his statements for certain things did not match the figures quoted on the loan agreement, the figures just didn’t add up. He explained to the judge that he had a background in financial services and was very well acquainted with loans and credit and he wouldn’t have signed such an agreement if it had been presented to him. Despite this account being post-2007 the judge dismissed the claimant’s claim because the defendant seemed to know what he was talking about.
  • A defendant explained how they had popped in to do some transactions into a Barclays branch back in 2001 and the defendant’s partner had left the car parked on double yellow lines while the defendant went into the branch. The defendant was approached by an employee who asked whether she’d like a credit card. She indicated that their car was improperly parked so the employee said all she had to do is provide her name and address and they’d forward her the card with all the required terms. As this was before 2007 and she didn’t sign an agreement with all the prescribed terms, the claim was dismissed as unenforceable.

There are also cases where a defendant has lost because they didn’t appear very credible. An example was Arrow Global v Frost, where the defendant denied having signed any agreement, however, the court thought the defendant unreliable and assumed that he had signed an agreement that was compliant with the Consumer Credit Act.

I have also read three statements from Mrs Frost, and three statements from Mr Frost, both of whom also gave oral evidence and were cross-examined. I was not impressed by Mrs Frost as a witness. It was a common theme of Mrs Frost’s evidence that since the signed form could not be produced, she did not have to pay; and she accepted that she had run up the credit card bill, but stated in cross-examination that she and her husband were not the type of people who didn’t pay their debts. Mrs Frost was unable to recall many of the letters which were received or sent, and asserted that she had left her husband to deal with the dispute, simply signing letters he had drafted without reading them. She asserted that she had not received any of the relevant documents, in particular the Default Notice, and the contractual termination letter. I did not find these assertions credible, in particular her assertion that she could recall that there was no space on the application form for her to sign and that she did not sign the form. If Mr Frost had been dealing with any of these matters, I would have expected him to have mentioned it in evidence, but there was nothing of any substance in Mr Frost’s statement save in relation to the telephone calls made by or on behalf of MBNA. Furthermore, it became apparent to me when listening to Mrs Frost’s evidence that whilst she asserted that she had not signed an application form, or received certain letters, in fact the truth is that she could not remember whether she had done so or not, but was relying on the fact that the Claimant could not produce a signed document or that her husband had been dealing with the letters. I was similarly unimpressed by Mr Frost as a witness. He accepted that he wrote letters for his wife to sign, that he had gone to a claims management company regarding the dispute, and he also referred in his statement to the allegations of telephone harassment. Apart from that, his evidence did not deal with any relevant issues. He was asked if he agreed with his wife’s evidence, and in response he said that he couldn’t say that he was listening to it (despite the fact that he had been in court) and was not prepared to say that he in fact agreed with her evidence, a response which I found surprising. As a consequence, in my view I should treat with some caution Mrs Frost’s assertions as to fact unless these are supported by any contemporaneous documents.

Presentation

You should dress smartly for court. Although wearing a suit is not essential, if you own one, wear it. It won’t hurt. However, if you haven’t got a suit, there’s no need to buy one just for the occasion, just try to dress as smartly as you can without looking like you are going to a party.

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Guide to representing yourself in court