Len Dastard, consumer law wrestler vs the Small Claims Court Part 1
Buenos días to you, my sacos vacíos de la felicidad. I am Len Dastard - a litigation executive writing for Bitterwallet, in the guise of a Mexican wrestling legend.
Today I will take your hand and guide you through the process of the Small Claims Court. Remember my Saltillo Stand-off in '78, where I fought for my life against the fearsome Che Sangre, the Devil of Death? It is similar in many ways.
What claims can I bring and do I have to pay?
The Small Claims track is intended to provide a proportionate procedure for most straightforward claims worth less than £5,000 to be decided, without the need for substantial preparation and without incurring large legal costs (claims for personal injury and some other types are limited to £1,000).
It is very much designed for the general public to conduct their own claims. Examples of common claims include:
• Compensation for faulty services provided - by builders, dry cleaners, garages and so on
• Compensation for faulty goods - televisions or washing machines which go wrong
• Disputes between landlords and tenants - rent arrears or compensation for not doing repairs
• Wages owed or money in lieu of notice
Before you go as far as court, however, you should try to find agreement using an alternative way - for example:
• Negotiating an agreement
• Involving an Ombudsman (where available)
• Using a mediator
• Involving an arbitrator (those who can make a binding decision)
• Contacting a regulator
It's important to consider these options as the court might decide you won't get your costs back, even if you win the case. Also, it is vitally important that you are able to prove your claim in court. No case is ever certain but prospect of success need to be considered.
Taking legal advice before entering the court system may also save you time and money - most solicitors will offer a free 30 minute interview. If they don't, shop around until you find one that does.
There is a fee for issuing a claim in the Small Claims Court and this is based on the sums involved. You do not have to pay a fee if:
• You receive Income Support
• You receive Pension Guarantee Credit
• You receive income-based Jobseeker’s Allowance
• You receive Working Tax Credit (provided you are not receiving Child Tax Credit; or
• Your gross annual income does not exceed a specified limit
Issuing your claim
Before you issue proceedings, it is important you write to the debtor and advise them what you are claiming at the earliest opportunity, and to give them an opportunity to settle the claim. This initial work is known as, and part of, the "Pre-Action Protocol". An example of a “Letter before Action” for debt recovery following an unpaid invoice can be found here - it will obviously need to be tailored to suit your case. This letter must set out:
1. Who you are.
2. Who they are.
3. Amount in dispute and what this relates to.
4. Where money can be sent.
5. How long they have to reply.
It is advisable to allow 14 days for the other party to reply.
If you do not get a satisfactory reply and all settlement attempts have been exhausted, the next step is to issue your claim.
The claim will need to be issued in your local County Court or the Northampton County Court Bulk Centre if you are issuing your claim online using the Money Claim Online service.
Here's a tip - interest can be charged on sums owing, under Section 69 County Courts Act 1984 (there is a different Act for late payment of commercial debts along with a nominal compensation figure) and the current rate of interest is 8% per annum. It is imperative that you “plead” interest, as you will not be able to claim it otherwise. The same goes with “costs” - you need to ensure that you claim costs in order for the Judge to consider this request.
The first page of the claim form (commonly known as N1) is relatively straightforward - addresses of all parties, what the debt refers to and what you think you will recover. With all small claims you should not be recovering more than £5,000 so you need to make that clear.
On the second page of the claim form you will find the “Particulars of Claim”. This is where you tell "the story” of how the balance has come to be owed to you. It is as straightforward as that. It is good practice to set this out as follows:
1. This is who is involved.
2. This is what happened.
3. As a result…
4. This is what I want.
Attach everything that you intend to rely on - in particular all invoices, correspondence, contracts, terms and conditions etc.
You will then need to attach a cheque for the court fee or make this payment in accordance with the relevant courts facilities. If you attach three copies of this claim form, the court will “serve” the defendant. This just means the court will send this to the defendant and giving them 14 days in which to reply, using their current or last known address. It is important that you make all relevant enquiries of the debtor’s whereabouts, as if you are unsure it could be costly. Some tracing agents can assist and they usually charge less than £100. You just need to consider proportionality - it is worth it in your particular case?
This then issues your claim in the Small Claims Court and puts the ball in the court of the defendant to either file an admission or a defence. If they file an “acknowledgment of service” they will have a further 14 days to file a defence.
Litigation will then ensue and unless you cannot settle the matter it will proceed to a trial not lasting longer than one day. If you are representing yourself, it is advisable to keep a file or all correspondence and everything that you intend to rely on.
That is all for now, my pretty flowers of Pachuca. Remember, if you have a consumer law issue that needs wrestling into submission by me, Len Dastard, email me at hello[@]bitterwallet.com.