I recently attended a case involving a small claim track RTA trial where my client only succeeded because he referred to a video he had taken during his cross examination. The video clearly shows how close the Defendant’s vehicle was parked next to my client’s parked car before it drove away. It was only after the Judge heard from the the Defendant (who referred to photographs that she wanted to disclose but her Solicitors advised could not be relied on so late in the proceedings) that she decided to see the footage and the photographs.
In other words, but for the Judge’s decision to accept late evidence from both sides, we would have lost.
Why was this footage not obtained? It is primarily because the client did not appreciate the need to provide it at an early stage. He is a lay invidiual, he does not have the understanding. However, his Solicitors did and should have.
This is a revisited article of something i’ve previously wrote and I think needs to be said again.
Clients do not have a ‘scooby’ about what evidence the need to provide
I represented a client at a small claims trial who, on they day in question, returned to the car park to find damage to her car. There was also a note from a bystander who says they saw the damage and wrote down the VRN of the car (which was parked next to the client’s car in the car park).
The insurer/solicitors didn’t request a copy of the note, which was left in the car before it was sold. It wasn’t until just before the trial that the solicitors shared the Defendant driver’s statement with my client, who observed that the Defendant claimed his car was unlikely to be in the car park due to his house being only a 10-minute walk to the city centre.
During the proceedings, my client informed the solicitors that she had a photograph of the defendant’s car next to hers on the day of the accident. Unfortunately, no one asked about this evidence initially. Fortunately, the Judge allowed it to be presented, and it significantly challenged the defendant’s credibility. This situation underscores the importance of asking the right questions early on. A simple phone call could have revealed this crucial evidence. Given the heavy workloads, a concise questionnaire could effectively gather important information that might strengthen a case.
It cannot always be something that can be identified early. Last week I represented a Defendant who was reversing out of her courtyard when a neighbour collided into the rear of her Range Rover. The neighbour claimed that she was going 10mph. The Defendant had Ring but could not access it and said so in her statement. However, they were eventually about to retrieve the footage. In Fast Track and beyond, that would have probably fallen within the realms of McTear & Anor v Engelhard & Ors (Rev 1) [2016] EWCA Civ 487.
If you use a Particulars of Claim template, ensure you amend it correctly
Judges quite often are annoyed with significant errors with the Particulars of Claim, with many:-
- omitting the correct accident circumstances,
- failing to explain vehicle positions,
- failing to explain what the third party did that caused the accident, and
- failing to plead any negligence allegations.
Many judges adopt a broad approach to small claims track litigation, acknowledging its imperfections and emphasising justice based on value. However, some judges view failures by professionals as the ‘authors of their client’s misfortune.’ While this may not result in strikeouts, it can affect the credibility of parties, especially if there are inconsistent statements.
Using templates and precedents is essential in volume litigation, but taking a few minutes to review them can help avoid issues. It’s evident from some defective Particulars that someone used a precedent and made changes, including the removal of parts that may not have needed alteration. This revised document was then used as a precedent for another case, which led to further modifications. Eventually, critical information was lost, and the fee earner likely did not realise it was missing, resulting in defective pleadings.
To prevent these problems, having a straightforward formula can be very helpful:-
Who, when, where, what and how?
- Who are the parties (make sure your client was the driver or, if they weren’t the drive, state who the driver was)?
- When did the accident (make sure the date coincides with the information you have bene provided)?
- Where did the accident happen (check it against google maps and information provided and make sure it is explained a clear and concise manner that another person can identify the location easily)?
- What happened (so often the explanation doesn’t actually explain what happened and says “the Claimant was proceeding when the Defendant collided into them”. How? From where?)?
- How was the Defendant at fault (it should be clear what the Claimant said the Defendant caused the accident, but quite often it is not explained, not even in the negligent particulars)?
Getting a witness on the phone for a 2-3 minute conversation can make all the difference
Volume litigation litigators cannot spend hours calling every client because they would never be able to get anything done. However someone calling the witness/party and having a 2-3 minute conversation about their witness statement will almost certainly reduce the errors that commonly arise. Advocates will always have a conference with the party/witness before trial and usually ask them to confirm the accident circumstances and more often than it should, the accident circumstances are wrong (and substantially wrong where it will impact submissions and prospects).
Whilst blame cannot be removed from a witness signing a statement to say it is factually correct when it is not, I often get told by witnesses that they were only contacted at the last minute and are pestered to sign a statement quickly because the deadline is later that day etc. We know that this is because nobody wants to incur the time of preparing a statement unless absolutely necessary. This is likely why witnesses panic and do not spend time reading the statement.Nevertheless, I have worked with firms and worked in employed litigation where a paralegal assistant would call the witness and summarise the accident circumstance, etc, in a very brief summary. So for example:-
“I undestand you were driving the blue fiesta and you were proceeding along Westbury Road. You were in the left hand lane and you intended to go ahead at the roundabout toward Blobby Avenue. When you were almost at the roundabout the Defendant overtook you in the middle lane, the attempted to pull in front of you but they misjudged the distance and the back passenger door collided into the front drive side corner of your vehicle as the pulled over from their lane to yours. That’s what happened broadly speaking?“
The person isn’t going through the statement line by line, but the process allows the witness to be able to easily identify any errors that can then be remedied if need be. Then they are told they are going to be sent the statement, the must read it carefully and it is vital they let someone know urgently if there are any errors. These will usually be very tiny errors, rather than something substantial which the above process will identify. I have had many tell me “yes but client like to chat and can be difficulty”. That’s normal for some individuals and realistically, those in litigation who talk to clients must have the skill to control a conversation. You don’t have to be rude but you can assertive:-
“Sorry, I do need to stop you. We have very little time and for the purpose of this call in Order to ensure you provide your statement in time I need you only to answer the questions I ask. You can of course email any additional questions to [inset name] who has conduct of your case”
I know from experience that initially, you feel very awful cutting up a client or witness when they may want to express their feelings or frustrations but they do not know what you know (that you are going to be very busy and have more things to do in the day that you have time). Control the conversation, you will cut down the time and the paralegal assistant can get through a substantial number of calls and revert to the fee earner to let them know that the circumstances appear to be correct, subject to the witness’ approval or whether there is a substantial issue which the fee earner needs to consider. This approach culls a large number of significant errors.
It’s not infallible because witnesses can still skim read, not notice errors, and then raise the trial when it’s too late. That cannot be helped, but it is then not your fault. You may not be able to get the witness on the phone. It can happen due to the witness’ working hours. In some cases, you have no choice but to send the statement and hope they identify any major errors. Many will say that the 2-3 minute phone call is duplication. It is intended to identify significant errors early so the fee earner can decide how to approach the issue. If the accident circumstances are so different from what was pleaded, it gives the fee earner an opportunity to decide whether the statement is amended or whether authority is needed to consider settling/compromising.
Exhibit every document you intend to rely on
Whilst it should be the standard approach to disclosure within RTA SCT, quite often, documents get overlooked or, more importantly, do not get filed/served. Whereas when witness statements are exhibited with each document tend not to have any omissions.Have a list of party’s documents you can tick off as you exhibit them in the statement reduces the risk of something being overlooked. A further point is that if it’s referred to in the witness statement, but omitted from the exhibits in error, there is a stronger argument for relief because the other party would have been aware/on notice of the document. It may even prompt them to ask for it.
When referring to an exhibit, including a line in the statement indicating the purpose of the document and why it is being relied upon is beneficial. This will help the Court, the other party, and the advocates understand its significance. In many small claims trials, advocates are asked by the Judge to clarify the purpose of a document because it’s not always clear on the face of it. Such reference should be identified in the trial brief to avoid confusion. More importantly, it may highlight that to the other side and may lead to a compromise.
Are these tips too burdensome for the benefits they may provide?
I understand that there have been concerns about the effectiveness of my suggestions and the potential for duplication of work. I want to clarify that my recommendations are aimed at streamlining administrative tasks by involving paralegal assistants in the process, which ultimately allows the fee earner to focus on more critical tasks without getting bogged down in administrative elements.I’ve used this system before during my time in full-time litigation. I know of others who have successfully reduced the number of errors significantly by following these steps.
Although this is just a guide and not a blueprint for the actual system, introducing these steps can improve litigation with minimal expenditure of time and resources, but will make a difference.Some people may argue that these suggestions might not solve the problem because lay clients and witnesses might not read statements, or they might not understand or be able to express the issues accurately. This could be true, and it may result in their claim being dismissed because they are not effective witnesses, and their evidence is not accepted.
It’s not a one-size-fits-all solution. However, the minimal extra effort required is small in the grand scheme of things and could significantly reduce errors. Since many cases now rely on deductions from damages, a case’s success is even more crucial. These tips aim to help improve small claim RTA claims with very little additional effort.
More importantly, you don’t want to go to trial in an SCT matter because the advocacy costs are not recoverable. Any steps that can help to do this ought to be considered.
Information
AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.
From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.