The Directions Questionnaire
After filing a defence, the court will send questionnaires to all parties to help determine the next steps for the claim. This form is labelled N180. The parties should think about whether the claim can be settled without a trial, where the trial will be held, how many witnesses they plan to call, whether they need expert evidence, and whether they are open to resolving the claim through mediation.
Parties provide the completed directions questionnaire to the court and the other party.
Allocation to small claims track/directions
Once the court has received directions questionnaires from the parties, it will allocate the claim. If the court determines that the small claims track is the appropriate track, it will send a notice to the party to confirm this. The notice will include directions for the court to schedule, having reviewed the directions questionnaires. This will include details about the filing of witness statements, expert reports (if requested), the hearing date, and the duration of the hearing.
The substance of your claim or defence will be the evidence you submit to the court and provide to the other party. Evidence is only useful to the court if it relates to the necessary claims, which are what is stated in the claim form and defence. The court will not allow evidence that does not help resolve the issues in dispute. This includes evidence that is meant to embarrass the other party but is not relevant to the claim itself.
Factual evidence includes witness statements that outline your witnesses’ version of events, contracts, terms and conditions, or invoices, and documents that demonstrate what was happening at the time, such as emails containing important information or omissions, photographs illustrating the condition of things, and telephone records indicating whether calls were made or not.
Expert Evidence
Expert evidence is utilised by the court to assist in reaching a judgement on matters outside of its expertise. For instance, when determining the value of a company, expert valuers can offer a valuation of the company’s share price on specific dates. In the small claims track, there are limited circumstances in which obtaining expert evidence would be worthwhile.
The court rules say “Expert evidence must be restricted to what is needed to resolve the dispute. Experts must assist the court on matters within their expertise. This duty overrides their duty to the party instructing them or paying them. The court can also order that one expert is instructed for both parties.”
Settlement
The parties have the option to resolve the claim by making a without prejudice offer at any point, specifying a particular amount. This offer is intended to fully and finally settle the claim, and the payment offered is all that is required to bring the matter to a close. When making settlement offers, it’s important to consider the other party’s costs and any interest they may seek, as this could be a condition for reaching a settlement. If the parties do reach a settlement, they must notify the court so that the claim and any scheduled hearings can be removed from the court’s list.
Mediation
In the Small Claims track, there is a specific Small Claims mediation service available to help resolve disputes without the need to go through the formal claims process, which can be time-consuming and costly. This mediation typically lasts for an hour and is conducted over the telephone. During the mediation, the parties involved do not directly communicate with each other. Instead, a mediator speaks to each party individually and aims to facilitate a settlement or narrow down the issues in dispute. Importantly, discussions during the mediation are considered “without prejudice,” meaning that anything said during the process cannot be used against any party in open correspondence or in court.
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