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tdlawyer
tdlawyer, Lawyer
Category: Law
Satisfied Customers: 1096
Experience:  11 years experience of general practice.
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Im a defendant in a small claims court case and the claimant

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I'm a defendant in a small claims court case and the claimant has sent me the particulars of claim, a signed contract, upon which they base their claim and the defence form.

I wish to defend the claim but my defence is complicated and relies upon additional facts not disclosed by the claimant and a potentially 'complicated' application of various common law.

So at this stage I am wondering as to what level of detail I must state my defence with, do I simply deny each point of the claim and give a brief reason or do I explain my argument in detail?

For example, of these two, which is more appropriate for an initial defence form:

1. Denied. The contract is void by mistake or frustration. [or]

2. Denied. The parties entered into the contract on a common misassumption, that the defendant was a member of X. This was in fact an innocent misrepresentation, that meant the defendant was unable to perform the contract as had been intended, frustrating the contract notwithstanding the contract being void for mistake.

Also at what stage would I need to 'justify' my argument, that is to introduce any case law that I intend to rely on and apply it to the facts of my case in detail (I assume this is more for the skeleton argument and the oral argument in court)?.

Finally, I fear that as a layman (though an educated one), arguing over points of law, possibly against the claimants solicitor, the judge is likely to give more credibility to the solicitors argument, on the basis that they have received formal training, regardless of whether my argument is more valid. I cannot afford representation and can't get legal aid for this, is there anything I can do in that case to make the playing field more fair?

Thanks very much in advance for any guidance, and apologies for a rather disjointed question.
Submitted: 2 years ago.
Category: Law
Expert:  tdlawyer replied 2 years ago.

tdlawyer :

Hello, welcome to the website. My name is***** can assist you with this.

Customer:

Hello Tony, sorry for my late reply

tdlawyer :

It's okay ...

tdlawyer :

In answer to your points, you do not need to cite cases of legislation in your defence.

tdlawyer :

You only need to set out what the position is, i.e. admitted, not-admitted or denied. If you deny an allegation, you need to say why.

tdlawyer :

To joy of this being a small claim, is that you don't need to worry too much about the formalities or everything, and nobody will be expecting you to plead the case as a lawyer with 20 years experience would.

tdlawyer :

Admittedly, if this was fast-track or multi-track (i.e. not small claims) then you would need to get it right, which is why it's always sensible to use lawyers, but in the small claims system, everything is much more relaxed.

tdlawyer :

Do make an effort to do it as best you can though, but don't get hung up on it, I suppose is the message I'm trying to send.

Customer:

The problem is, the case is relating to debt owed under a contract and the only way for me to defend it is to argue that the contract is not valid (by mistake or frustration) and to argue that certain terms in the contract are unfair, otherwise I don't have a valid defence

tdlawyer :

.

tdlawyer :

Okay, so why is that a problem for you to plead?

tdlawyer :

Because of the technicality of it?

tdlawyer :

If so, you don't have to refer to law as such, you would simply say something like: I deny paragraph 1 of the Particulars of Claim because there is no contract in force between the parties, owing to consent being vitiated due a common mistake of both parties.

tdlawyer :

Or whatever it might be ...

Customer:

Well I'm confused as to what level of detail I should put, whether or not I need to justify any plea at this stage with legislation to back it up

tdlawyer :

No, you don't need to cite authority for your arguments. The purpose of the pleading, it to set the goalposts for the litigation.

tdlawyer :

Not justify why the goalposts are there.

tdlawyer :

Your witness evidence backs up your version with the facts, and then submissions to the court on the day are your chance to argue the law.

Customer:

Ah, thank you, ***** ***** now. If I can just ask one final question

tdlawyer :

Of course you can.

Customer:

Do you think if I do need to make submissions to the court, would it be a problem that I may be taken less seriously than say a qualified lawyer, or would that depend on the strength and accuracy of the submissions themselves? Considering the other party will be represented and I will be in person

tdlawyer :

I would just add, with misrepresentation, you do need to say you're rescinding the agreement (if indeed, there is an agreement) if that's what you want to do (i.e. argue that it puts you back in to the pre-contract position).

tdlawyer :

Different views about that point ...

tdlawyer :

Some would say that a judge is naturally more likely to listen to lawyers, but then, it depends on your judge.

Customer:

Would it be a valid ground for appeal if the judge did not look at what I was a valid legal point, or didn't give it as much weight as they should?

tdlawyer :

In my experience, lawyers get a harder time that litigants in person most of the time, because the expectations of them are higher. Equally, I've also seen a Judge tell lawyers that their understanding of the law is completely wrong and that the litigant in person is right.

tdlawyer :

It depends on your facts, your case and to be honest, the more you prepare for yourself, the more the judge is likely to be able to help you. My approach is assume the judge knows no law, and prepare to educate him. Of course, he does, but when you get there, if you're telling him the bits he does know, then a few he doesn't, he will feel more comfortable to go with the bits he didn't know beforehand because you're on the same hymn sheet with the bits he did. If that makes sense?

tdlawyer :

He either gets the law right or wrong - thats what an appeal court looks at.

Customer:

That makes complete sense, just one last minor point if I can clarify, the witness evidence, to prove my version of the facts, when would I normally submit that?

tdlawyer :

Not giving a certain legal point enough consideration in some contexts can be en error of law, but you're getting into advanced territory there.

Customer:

I'm assuming it's after a pre-trial hearing, that you are instructed to exchange all documents, that you would submit your evidence?

tdlawyer :

No, you're given a timing by the court, once the defence is filed, it'll send you directions then.

tdlawyer :

Or it will call you to a hearing, to give you directions instead (less likely these days).

Customer:

Understood, thank you for clearing all of that up, I feel much more comfortable now

tdlawyer :

Great! Thank you. ***** just check you're happy with the service today please

Customer:

Very happy, you answered all of my questions, was patient, explained everything as I needed and all in a quick time, I will rate you as excellent service

Customer:

And perhaps most important of all I feel much more at ease and confident with what I need to do now, which was the point of my question

tdlawyer :

That's great feedback, thank you very much! :-)

Customer:

It's been a pleasure to speak with you and I hope you enjoy the rest of your afternoon :)

tdlawyer, Lawyer
Category: Law
Satisfied Customers: 1096
Experience: 11 years experience of general practice.
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