Monday, 11 April 2011

Reverse court action?

Anyone can take someone to the county court if they have a claim from them. You each get to have their say, and a judge decides who is right. This is a good system and surprisingly cheap.

I sometimes think we are however missing something though.

You cannot take court action as a defendant. You cannot force someone in to court as the claimant.

Why would you want to do this? Well, to decide an undecided matter and to remove uncertainty and risk. If someone could take you to court and does not then you have that hanging over you, possibly for 6 years, and it causes stress and uncertainty. If someone is chasing a debt you think you don't owe then getting it settled once and for all is good.

In such cases it would be really good if you could take someone to court as a defendant. To pay the court fees to get them to make their case, or to forfeit any future right to take the case against you. To force their hand. To get a decision now, win or lose, and to know where you stand.

The other thing that is missing is a way to pay for a court decision - sort of like suing yourself - you pay for the courts time to decide something that could happen. i.e. you have a business plan that involves something you are unsure of - pay for the courts time to be devils advocate and decide a case. County courts do not decide legal president as such but would be a good reference for a real case later. It would allow you to understand how the court would consider something and act accordingly.

Just an idea.


  1. Pay me to take the legal action against you and then when I lose you have the precedent that you were after.

    *IF* I win I will demand 1p in damages.


  2. I owe my landlord some money, but we disagree about how much. I say £390, they say £630. I recently sent them £400 as "full and final settlement". If they accept that and don't complain then it's over and done with. If they cash the cheque but reject the offer I intend to sue them for the £10 difference. If they don't cash the cheque then I shall have to rant at them further.

  3. Take them to court for breaching your human rights and not giving you the chance to defend yourself.

  4. Psimoney: if the cheque is given under the condition of full and final settlement and they cash it then isn't that counted as acceptance of the offer?

    If the want to argue the case further then they can give you your cheque back and suggest a different agreement.

    PS: AIM OpenID seems to have stopped getting the screennames.

  5. Is there anything to be gained from "suing yourself" to set a precedent? An actual case with two real sides will be argued on the particulars of that case and you're unlikely to cover all possible avenues in a single sided case fought once.

    Paying off a potential litigator with a "full and final settlement" seems like a sensible approach: if they accept then it's settled and if they don't then they have to move otherwise it's also pretty much settled. You have evidence of acting in good faith and having made a reasonable offer so a judge (especially in a county court) is likely to look upon you favorably.

  6. Mr 36f30bfc: I believe that if I'm the debtor, and I make an offer of full and final settlement on a disputed debt, and they cash the cheque but promptly tell me that they don't accept it as full and final settlement then the debt isn't necessarily discharged. That's going on the advice at If a third party was offering on my behalf, or if the creditor didn't reject the offer until a long time after they cashed the cheque then the situation would be different.

  7. I have found myself in a similar predicament in the past with a previous landlord on dilapidations. They withheld the deposit but then demanded more but did nothing more about it. I therefore forced the matter by finding fault with them and used that as the reason to take them to court. In their defending statement they then brought up the issue of the deposit so that was decided on by the court there and then, but as they were on the back foot I didn’t do too badly out of it and reached a fair compromise.

  8. Some jurisdictions have the concept of "declarative judgement"; you can pay to go to court, present as much of the case as you are aware of, and have the judge tell you what the ruling would be in the absence of a material change of facts from those you presented. This ruling isn't binding, but it allows you to get a feel for how a judge will see something before you actually do it - and, in a later dispute, you can reference the judge's thinking in this case as part of your case.

    Others take it further; if you can show that you're in a dispute with someone already, you can effectively force them to start legal action - you sue as the defendant, paying the court fees, and the plaintiff is forced to accept the resulting judgement. Unlike a normal court case, though, the defendant normally pays the court costs and their own fees if they go this route, unless there are special circumstances where the judge believes that the plaintiff had no intention of bringing suit, and was instead expecting to harass you with the threat of legal action that would never actually happen.

  9. The current regime (and indeed its immediate predecessor) have been trying to discourage use of the courts in general. Instead engouraging Alternative Dispute Resolution (ADR) which are delegated bodies or existing specialits in a field. There decisions can be binding. Many are commercial or social enterprises. This is as much an admission of a shortage of experienced skills in the bench and stipendary magistrates as it is in costs of running the judiciary. Many magistrates courts are being axed as the quasi judicial sytem is ramped up. This does potentially offer more avenues for this kind of pre-emptive ADR if not a pre-emptive judicial decision.

  10. I would far rather a good court service and no using ADRs.