Fortunately, for childcare provisions the possibility of being sued is slight; however, better to be prepared and Val Moore looks at what may happen and what providers should consider.
Being involved in a lawsuit is stressful, time-consuming and usually expensive and is best settled quickly. It should be remembered that unless the provision is clearly at fault, or does not follow court procedures properly, a positive outcome is in the provision’s favour. However, to have safeguards in place is a good idea for all.
Seek legal advice
On receiving a claim, legal advice should be sought: Should one admit liability and make a reasonable offer to settle the matter? Where the provision is a limited company, are the directors and officers named separately? They may be personally liable and need separate representation.
It may go “against the grain” to settle where it is believed that the other side has a weak case, but there is a good chance that such an offer will be accepted; this saves both sides time and money in formal court proceedings.
It is important to follow procedure and respond to any High Court or county court claim within 14 days. Failure to do so will mean that the claimant can obtain judgment in default against you.
In the wrong?
It is usually best to admit liability: however, do seek legal advice and consult other interested parties such as the provision’s insurers.
Admitting liability within 14 days for a specified amount and the court costs will be minimal. It may be possible to pay by instalments.
Just a bit in the wrong?
While the claim against the provision may, for instance, be for non-payment of an invoice, there may be mitigating circumstances in that the goods were defective and the provision makes a counterclaim for losses incurred by those defective goods.
Believe that right is on your side?
A defence must be filed within 14 days of receipt of the claim form (or 28 days if an “acknowledgement of service” is filed).
Give full details of why the claim is disputed (it is for the claimant to prove their case).
Respond only to those allegations made in the claim.
Give your version of events (this could include documents, witness statements or experts’ opinions).
The initial court process
Broadly speaking, the following will happen (although individual cases may differ).
Both sides try to resolve the dispute by exchanging information explaining their individual positions.
The claimant lodges a claim form at the court and the court ends the claim form and a response pack to the provision.
The provision sends an “acknowledgement of service” to the court.
The provision sends in its defence using the relevant court form along with other information required by the court.
The court will allocate one of three “tracks”. Usually, small claims track for amounts up to £10,000: fast track for amounts between £10,001 and £25,000 or multi-track for amounts of more than £25,000.
Small claims and fast track use a simplified procedure and thus less costly: multi-track allows the court flexibility dependent upon how complex the case is and costs are usually much higher.
In small claims, hearing attendance is not compulsory provided written evidence has been submitted and the provision has stated that the court can deal with the matter in its absence.
The case is usually heard in the claimant’s local court, although they are exceptions. Where the claim is for a fixed amount and the defendant an individual (sole trader) then it is transferred to the defendant’s court. It is also possible to make an application to have the case heard locally.
There is possibility of an appeal, however, this is difficult in a small claim; the main areas for appeal are that the hearing was improperly conducted or there was an error in law.
The claim will be on the Register of County Court Judgements (CCJs). Pay within one month and the entry will be deleted, otherwise it will remain on the record for six years (or until payment is made in full and it is possible to pay a court fee to have the entry removed). A CCJ will affect credit ratings.
The third way
Disputes can be resolved without invoking court proceedings through Alternative Dispute Resolution (ADR). This is usually quicker and cheaper. It usually has the added advantage of being more flexible and future relations are likely to be better.
Arbitration or mediation?
Mediation can be used for claims of any size; is less formal, time limited and cheaper. The mediator assists the parties reach their own decisions. A feature on mediation recently appeared on these pages.
Arbitration is usually reserved for claims above £20,000 due to the costs involved.
Whichever method is used, because it is a commercial dispute, the procedures are legally binding on both sides.
Minimise the risks
While nothing is risk free, providers should ensure that they minimise the risks to try and avoid the necessity of problems being referred to the courts.
Have written contracts
Contracts of Employment are a legal requirement and additional information can be added over and about what is required in law. Further information can be found in the topics Contracts of Employment and Staff Handbooks.
Ensure working conditions and procedures are safe: that staff use protective clothing as appropriate; that equipment, etc is safe and that the provision has adequate insurance, including that against accident claims.
Suppliers, contractors and parents
Terms and Conditions of Trade are essential, these detail how the provision conducts its business.
With suppliers and contractors there may also be additional written contracts. See the topic Buying Products, Services and Maintenance Contracts.
With parents/carers there are provision’s policies and procedures.
Ensure that the provision’s risk assessments are regularly reviewed.
Ensure that the provision has sufficient insurances in place.
This article leans towards English law, is not a definite guide and legal advice should always be sought. Information can also be found on the Ministry of Justice website.
Finally, advice from Israelmore Ayivor
“Be quick to resolve conflicts before they mature to become wars. The energetic crocodile was once a delicate egg!”
Last reviewed 7 July 2016