A bundle of fun

Posted: 9th April 2014

Buy the seaIt’s not a phrase that many people would think to use about a trip to court but that is exactly how it turned out for Ilminster businessman, Brett Dalton, when he went to Yeovil County Court to fight off a claim by an internet marketing company.

Brett, who owns and runs web-based firm Buy the Sea was looking to boost sales in late 2011 when he came across Rocketfish, an online marketing company specializing in search engine optimization (“SEO”). He paid Rocketfish a set-up fee and agreed to a scheme of charges based on the increase in traffic to his website that Rocketfish told him would happen as a result of the work they planned to do. 

He was told, “You will then pay nothing more until we have at least doubled the traffic you have going in to your website from this base line number….you will then pay 25 pence per visitor per month (one quarter of what Google would charge on average via “pay per click”) starting from the base line figure.  This payment will be kept at £350 plus VAT per month .......”

Sadly, the traffic did not double and this was only too apparent to Mr Dalton who subsequently refused to pay bills rendered on the basis of an assumption that the maximum capped fee had been earned.  Eventually, Rocketfish sued.

This was one of many cases which present that dilemma of conflict between principle on the one hand and cost on the other.  The claim was for more than £3,000 but that is well within the limit of what the Ministry of Justice currently regards as the definition of a small claim

Contrary to popular belief, there is no separate “small claims court” but within the county courts up and down the country, there is a process of allocation to different tracks.  These are generally defined by value and intended to help judges and court users to manage cases appropriately by best allocation of resources.

The small claims track, normally the destination for any commercial claims with a value of £10,000 or less, keeps the process of preparation for trial as simple as possible.  A lot of the more complex rules that apply to higher value cases do not operate on the SCT. A key aim of this process is that people should be able to handle these claims without the services of lawyers.  To promote that, the rules do not allow for winning parties to recover any of their solicitor’s costs from the user – as can be expected in the context of more valuable claims.

That is all very fine but takes things to the other extreme.  The SCT process may be more relaxed but it is still a big challenge for most people who are not familiar with courts and the law.

This is why many of us (lawyers) say that it is so important that the value of the small claims track for personal injury claims (where the limit is much lower at £1,000) must not be raised with the effect of forcing ordinary people in troubled circumstances to fight alone against experienced claims handlers employed by insurance companies.

In commercial claims, there is often a balance to be struck and this is where the concept of unbundling comes in.  Very often we find that a client involved in a dispute – they may be claimant or defendant – is able and willing to do quite a lot of the work assisted by some technical, and of course moral, support from us. 

This is a departure from the traditional all or nothing approach where you either instruct a lawyer or don’t.   Unbundling enables our clients to have the best of both worlds.  We do the tricky bits, which are easy for us because we do them every day, and our clients do as much as they feel competent to deal with, sometimes double checked by us.

Michael Williamson says, “With continuing financial pressures recently, we have seen quite a lot of law firms promoting the concept of unbundling but it is something that we have been doing for years.  It makes sense to let our clients handle aspects of the case that they can safely undertake.

One of the great things about this approach is the sense of collaboration – it's a team effort.  These things just require a little bit of imagination. In Brett Dalton’s case, we helped with the technical analysis of the claim and the drafting of a defence that defined the specific issues on which the case would be fought.  We shaped the arguments and picked out the important evidence that Brett would need to ensure the judge understood when it got to a hearing.

We also dealt with the process of allocation to make sure that our client was not caught out by any of the procedural tripwires that seem to increase in number every month.  After that it was a case of packing Dalton QC off to the county court to fight his case!!

It was hugely satisfying for both of us when he returned from court with the report that the claim had been dismissed.  It still cost him some money but not as much as it would have done to pay up, swallow his principles and miss out on the joy of proving his point.”

We are well used to doing this and are happy to discuss individual cases.  We can tailor to individual needs and will apply a modular approach, starting with fixed time, fixed fee discussion of the merits of a claim or defence and the options available.

Contact us now if you think that we can help.  Email or telephone 01460 200450.