The Small Claims Court process made simple

legal actionHave you considered alternatives to court?
Have you considered using an alternative dispute resolution service before taking someone to the Small Claims Court? These ways may be quicker cheaper and more simple. But if you have followed all the tips on how to complain, used the book and the ADR avenues are not open to you then when all else fails and you can’t get the money you are owed you may choose to go to the Small Claims Court. There isn’t actually a Small Claims Court. It is the County Court through which a simple shorter process is available. Usually hearings last less than a day.

There are different processes in Scotland (where you can claim for up to £3,000 or up to

£5,000 depending on case) and Northern Ireland £3,000.

You must try and resolve the matter before applying to the court. The court will expect you to have done this and given the defendant warning about going to court if a satisfactory response is not received within a set time. This is called a “Letter before action” which needs to state the facts – that there is money owed, why it is owed and how much is owed. The demand, with a reasonable period (usually 14 days is sufficient for the debt to be repaid), needs to state that if acknowledgment or reply is not received within 14 days, then proceedings will be prepared and issued.

What to consider before using the Small Claims Court

  • It takes ages. From start to court hearing is usually about 6 months. The process is relatively simple but not always completely clear, and changes, so don’t be caught out if you have been through the process before and read through all the information about all the stages and possible outcomes. It takes 6 months because there is time between all the stages of different paperwork
  • If you are thinking of taking a large organisation like Tesco to court as I did, the chances of you being paid when you win are of course I really wanted to not be paid in time so I could send the bailiffs in and I didn’t get paid but it was just the usual poor internal communication. But seriously, if you take a rip off builder to court for example, consider the chances of being paid, the potential further costs of enforcing the judgement, and the builder going bankrupt.
  • Whether you can take on further stress knowing that the whole process will take 6 months and a fair bit of your time putting evidence together and undertaking the court (I did not find the court paperwork cumbersome but putting evidence together can be).
  • The likelihood of winning.

Fees
£10,000 the case can still go through the small claims process but if you as a claimant lose you may have to pay the defendant’s costs. Claims for personal injury must be under £1,000. It also needs to be less than £1,000 when a tenant is claiming against their landlord because they want repairs or other work undertaken on the property and those works are less than £1,000. In Scotland and Northern Ireland, the Small Claims Court cannot be used to claim personal injury compensation at all. If you’re filing a personal injury claim in Scotland or Northern Ireland, contact a solicitor for advice on how to begin proceedings.

You may be exempt from paying fees if you are on a low income but there is a long form to fill out to discover if you are eligible.

Using Money Claim Online (MCOL) is cheaper and I would recommend you use it. You can still ‘phone the court for advice (administrative) and when I have done so I have found them really helpful.

Process
When you apply online all the details you need are on the website, but these are the very basics. You fill out a form from your local court but ideally online. Here you fill out all the details of the claim and contact details. One you keep and one is sent to the defendant. If it is complicated seek legal advice (Citizens Advice is free). You can also claim interest at 8%. The court sends a copy to the defendant.

The defendant can accept the claim and pay you, or they can make an offer of how to pay. You can accept this offer and if the defendant doesn’t pay you can take further legal action to enforce payment. If you do not accept the offer you will need to give your reasons and a court official will decide what is reasonable and will send both of you an order for payment (‘judgment for claimant after determination’). If you are not happy with this decision you can write to the court giving your reasons.  A judge will make a final decision and if the defendant does not keep to this arrangement you can take enforcement action.

If the defendant chooses to defend the case, they must respond within 14 days. A questionnaire is then sent to both parties. The parties will at this stage indicate whether they wish to try small claims mediation. Once all Direction Questionnaires are received the file is then referred to the District Judge for allocation. If parties have indicated that they wish to try mediation the District Judge will list the case for hearing for a date in the future and refer to mediation. If mediation is successful then the hearing will be cancelled, if not then the Claimant would pay the hearing fee 14 days before the hearing and the hearing will take place.

If mediation is successful then the Claimant would not get the issue fee back as this is for the issue of the claim and allocation, The fees that have been paid by the Claimant should be taken into account when accepting a settlement sum from the   Defendant.

A date and time is set for the hearing. Evidence is exchanged between the parties at least 14 days before the court hearing date.

Sometimes the court will not set a final hearing date at the allocation stage (when both parties are sent questionnaires). It could instead propose that the claim is dealt with without a hearing. If agreed by both parties it could be decided on papers only. The judge could hold a preliminary hearing if the claim requires special directions or where the judge feels that one party has no real prospect of succeeding and wants to sort out the claim as soon as possible to save everyone time and expense – or if the papers do not show any reasonable grounds for bringing the claim. A preliminary hearing, therefore, could become a final hearing where the matter is decided.

If the defendant doesn’t respond within the 14 days the judge can decide the case.

If the judge finds in your favour the judge will provide reasons for the decision. You will win your court costs.

If the defendant does not pay you can enforce the judgement. You have four choices:

Bailiffs for which you will pay another fee that the defendant will have to repay and fill out a “Warrant of control form”. The bailiff will attend the defendant’s property within 7 days and see if there are goods that can be sold. The defendant can make an offer to pay in instalments which you can agree or reject. If you reject you will return to court for the judge to determine repayment. You can add further costs for attending this hearing from the defendant.

Get money deducted from wages for which you will need to fill out a form to request that the defendant’s employer takes money from their wages to pay the debt – an “Attachment of earnings order”.

Freeze assets or money in an account for which you will need to fill out a“Third party debt order” so that assets in the defendant’s bank or building society are frozen and the court will decide if the money can be used to pay the   debt.

Charge the person’s land or property. You can ask the court to charge the defendant’s or company’s land or property for which you will need to fill out a “Charging order”. If the land or property is sold, the defendant must pay this charge before they get their money.

At the court and on the Government website you will find all the necessary forms and details of the process and details of the various possible outcomes and charges for different enforcements.

Tips for preparing and being in, court

  • Sue the right person, check you have the registered not just the trading name for example
  • Read everything the court sends you carefully
  • When using appendices (I had numerous in the Tesco case) number them and refer to each piece by the number in the explanation in Make it easy for the judge.
  • Clearly demonstrate how the law has been broken g. “The photo of item in appendix x shows described fault.”
  • Use good English and get someone to check it if you are
  • Check deadlines for court
  • Check and double check your paperwork and, unless you are absolutely sure it makes perfect sense, get someone to to check through for you.
  • Be objective don’t use any emotive
  • Be polite and precise
  • When at court be respectful and allow for them running
  • Don’t forget to claim for court fees, any out of pocket expenses for going to court and to provide receipts for these.

I’ve been to court three times, one of them a builder took me! I won all 3 times, one of them being against Tesco. I have also helped other people through the process when we have not succeeded through other means! Fees at point of publishing this post are here.

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The 15 top things other public transport users do that annoy us revealed

What annoys you about public transport?

Time for a rant. Not had one for ages.

The other day I had the misfortune of travelling on the tube. Used to do it for work several years ago and was very glad when I changed jobs and was able to use the car! Nobody likes the tube but sometimes I am amazed at some people’s attitudes. This particular evening the tube was, as usual packed. There was a heavily pregnant woman standing next to me and no one got up for her. It was possible that that people couldn’t see, so I shouted at “could someone please get up for this woman? No one did, I kid he not. So, I said again “I have to say it again? Will someone please get up for this woman?” A man the other end who couldn’t possibly have seen why did. The woman who was exhausted she could only smile to me sat down. Meanwhile a woman, sat next to her friend who was sitting in the “get up and give this seat to someone who needs it more seat” said “I didn’t realise we had a teacher on board” Really? Really? You want to bring attention to the fact that you were too selfish to get up? So I said to her “No, actually I am not a teacher just someone with manners. ” To which, unbelievably her friend sat in the seat from which she should have been the first to get up said “It isn’t that, it’s that people can’t see” Really? Really?

“That’s why I shouted it out across the carriage” I said, bad enough you might think. But this woman was sat next to the glass partition thing which the pregnant woman was standing by! Talk about bringing attention to the fact that you are stupid as well as rude. I couldn’t believe it, arguing about not getting up for someone heavily pregnant. When the pregnant woman left she was able to speak (that’s how out of breath she was when she got on) she thanked me and said no one ever get up for her. Well if that’s you on the tube and you see someone frail or pregnant or disabled who needs your seat more than you do GET UP! Especially if you are in that designated seat! Or enlighten me, why don’t you get up for someone who clearly needs the seat more than you. (If you yourself are in more need of the seat then fair enough but if you aren’t I’d love to hear your reasoning!)

So here’s a list of what people find annoying please free to add yours! The biggest gripe was without doubt number one!

  1. People shouting into their mobile phones
  2. People putting their bags on the empty seat next to them
  3. People who don’t give up their seat for someone pregnant or less able to stand
  4. Eating smelly stuff
  5. Being able to hear noise from people’s headphones
  6. People who need to use some deodorant!
  7. Noise in the quiet coach
  8. Blocking the feet f the person opposite
  9. Bags under tables on trains
  10. People who let their children run amok
  11. People putting feet up on another seat
  12. Eating loudly
  13. Litterers
  14. people doing make up
  15. Trimming nails

Incidentally, if you have any complaints about delays on trains and buses see here and here.

What other horrendous stories of rudeness and things you hate about other passengers on the tube do you have?

 

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Why you should write not ‘phone to complain effectively

phoneWriting v ‘phoning complaints
As many of you who follow this blog know, I always advocate putting your complaints in writing as one my Top Tips for effective complaining. You have evidence that you contacted the company, you can take your time to think about what you want to say, you can bullet point your issues, you can take out emotion, you can go back to it and rewrite until you are happy to send it and you have evidence of what they have or have not said to you (and that makes it hard for a retailer/service provider to deny and certainly going to an ADR scheme or Small Claims Court is made a lot easier with proof!) I had many appendices when I took Tesco to court! Writing means you aren’t left on the ‘phone waiting to get through to people at call centres where a lot of other issues come into play too! Many people who ask me for help with complaints have struggled because they have been phoning and not writing and don’t have a trail.

Recording calls & the Law
I often hear people saying that  they can record calls and that they will take this to an ADR scheme or Small Claims Court. Be careful here of what you can do! The interception, recording and monitoring of telephone calls is governed by a number of different pieces of UK legislation. It all points to it may be it may not! The guidance you get may be after you have made the call when it is too late.

  • The ICO (Information Commissioner’s Office) has no guidance on its website but when I emailed them to ask for guidance I was told:
    “Admittance of any type of evidence in a court case is decided based on the rules of the court. So whether any call recordings (either recorded for personal use or by a company when they have informed you they are recording calls) can be used in court is entirely up to the judge on a case by case basis. If you are going to court then it would be advisable to speak to your solicitor about it or if you are representing yourself then the court clerk may be able to advise you.”
  • The Justice department, (Your rights and the law)  said it could not provide legal advice.
  • Ofcom give this guidance on recording calls. This says that you can record calls for your own use and if you want to use to share with a third party (such as ADR or SCC) you must ask the person you are calling for their consent. This could be refused in which case you will not be able to use. However, when emailed to give more guidance on whether ‘phone calls can be used in court Ofcom said “I’m afraid we’re not able to give guidance on his matter.”

Therefore, think carefully before ringing as you may not have the evidence you need should you need to take the matter further. I also think that the difficulties of proving what was said in phone calls is a reason that many companies make it so difficult to email! Don’t be beaten because you can always email the CEO – find the address of any CEO here.

Tips for if you have to ‘phone
However, sometimes you need to ‘phone as it is urgent. What do you need to bear in mind?

  • Write down exactly what you want to say before you pick up the ‘phone, which will mean that you are prepared.
  • Take a note of the date and time you started and finished the call
  • Be polite, if you aren’t you risk the customer services representative refusing to speak to you
  • Ensure you get the name of the person to whom you are talking, first and second name
  • Quote relevant Acts where necessary. If you are not receiving services undertaken with reasonable skill and care and that includes over the ‘phone, then say that they are in breach of the Consumer Rights Act 2015.
  • Ask the person to whom you are talking to put what has been agreed in writing preferably by email and whilst you are on the ‘phone.

For loads of advice, tips, information, guidance, examples of complaining effectively and templates see How to complain: The Essential Consumer Guide to Getting Refunds, Redress and Results!

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Make sure your holiday in the sun doesn’t burn a hole in your pocket

Blue Monday is over and people are thinking about holidays, but with the multitude of ways in ways in which people can book we need to be much more careful of how we book with whom and be aware of consumer rights.

Press release

Starts:

Make sure your holiday in the sun doesn’t burn a hole in your pocket

With the weather so cold and adverts for holidays upon us, our thoughts turn to booking holidays in warmer places in the busiest time for travel agents. But as they all compete and more choice is available on how to book, including through sites not based in the EU, what do we need to look out for?

Booking through companies not based in UK

Helen Dewdney, The Complaining Cow, blogger and author of How to Complain: The Essential Guide to Getting Refunds, Redress and Results! has come across many people who have fallen foul of travel agents or companies making themselves looking like one which are not based in the UK. For example,  Susan booked accommodation with Booking.com at the cost of £357.50. The company cancelled less than 24 hours before the trip because the hotel was ‘overbooked’. Susan only discovered that the alternative accommodation didn’t exist when she arrived in London. She had to pay a further £900 to stay in inconvenient accommodation, resulting in numerous taxi and bus fares.  The company told Susan to email them and attach invoices and receipts, but she did not get a response, refund or even an apology. She was also £982.50 out of pocket. She eventually got her money back including out of pocket costs and a goodwill gesture of £250 by quoting relevant laws.

Robert’s mother had been charged a £30 fee after the booking process on a website that searches for flights then charges an administration fee on top, which she was not told about. The company’s hidden terms and conditions said that a charge could be made but did not provide the amount! Writing to the CEO and quoting relevant EU laws meant he got his money back.

So what are your rights?

Your rights booking through a UK or EU-based website

  • ATOL (Air Travel Organisers’ Licence) is a government-run financial protection scheme operated by the Civil Aviation Authority (CAA). All monies you pay for package holidays involving flights and holidays including a flight plus accommodation and/or car hire, must be protected under an ATOL licence
  • ABTA(Association of British Travel Agents) follow a code of conduct, so if they break that you can report them to ABTA.
  • EU Directive 2005/29/EC (for the UK Consumer Protection from Unfair Trading Regulations 2008) when a shopper makes a purchasing decision s/he would have made had s/he been given accurate information or not put under unfair pressure to do so.
  • Section 75A of the Consumer Credit Act 1974, you have a right to be refunded if you make a claim within 6 years (5 in Scotland) for purchases over £100 and less than £30,000. You are covered if you pay as little as 1p but the item costs more than £100. But remember you may be charged a percentage of the cost for a transaction fee, but you can try to pay a small amount on the card and the whole cost will be covered.
  • Purchases bought on debit cards may be covered by this voluntary scheme, the rules set by card issuers such as Mastercard and Visa, check if your bank is covered.

Your rights for holidays booked through UK tour operators

  • Package Travel, Package Holidays and Package Tour Regulations 1992 The organiser (tour operator) is liable for the failures of hoteliers, suppliers and services within the contract. If the holiday is cancelled, the consumer is entitled to a substitute package of equivalent or superior quality (if the other party to the contract is able to offer such a substitute) or to take a substitute package of lower quality and recover the difference in the price or to have a full refund.
  • The organiser must not provide mis-leading information and provide details about changes as soon as possible. The consumer is entitled to redress for a variety of things dependent on what regulation has been broken and when.

Your rights for holidays taken in the UK

The Consumer Rights Act 2015 entitles you to services that are carried out with reasonable skill and care and with information given verbally or in writing to the consumer, which is binding where the consumer relies on it.

Dewdney says you should be careful when you book but that you can nearly always get redress, so long as you know your legal rights. “Armed with your rights you can feel more confident that you won’t lose money either in the booking process or if anything goes wrong once on holiday.”

 

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Does Sports Direct treat customers as badly as staff?

sdWhat do you think of Sport’s Direct reputation? Sports Direct shares continue to tumble largely due to The Guardian’s investigation into the treatment of staff by the retailer. It uncovered that the company effectively paid thousands of temporary workers below the national minimum wage of £6.70 an hour and subjects warehouse staff to a regime of searches and surveillance.

It doesn’t treat its customers any better. Its returns policy on their website is very poor and misleading. It says that you have to “pay for postage but this does not affect your statutory rights”, and of course we know most people don’t know what their statutory rights are and even fewer use them! If you click on the “Faulty goods” link they also suggest that you pay for postage and registered post at that. They say they will refund or exchange. However under the Consumer Rights Act 2015 if the item does not match the description, is not of satisfactory quality or does not last a reasonable length of time then it is in breach of these regulations. Therefore one does not have to pay return postage or this should be refunded. Sports Direct does not make the customer rights clear, it sounds like they might give you an exchange even if you want a refund. Many people would not know that they could insist on a refund.

When buying online you have 14 days from the date that you received the item in which you can change your mind. This is under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. If there is no CRA breach then you would have to pay return postage.

Returns policies should be transparent. I do not believe that Sports Direct policy is do you? It is misleading for anyone that that does not know their legal consumer rights. When customers find out that actually they shouldn’t have paid the postage or that they could have insisted on a refund then they feel cheated and are unlikely to shop in the store again. It reflects badly on the business. So this kind of policy is counterproductive. Perhaps the CEO believes that so few people know about their legal rights that the company can make more money. However, times are a changing and people are seeking out information to be better informed about the legal rights. Clear policies which fully explain the customers’ legal rights ensure that consumers can shop with confidence and are more likely to be return visitors. Any company which treats staff that badly is going to have management problems elsewhere. And now it’s beginning to show. Good.

When I asked about Sports Direct and what people thought about their returns policy on Facebook some people (who clearly didn’t know their legal rights) actually thought that they only did exchanges. An example of a breach of the law came from Naomi who said that she had bought a rucksack. Within 1 week and no major weight in it, the strap ripped away from the bag. She was offered an exchange for a like for like bag or a credit note on a gift card to the value of the bag. She was of course entitled to a refund, even under the Sale and Supply of Goods Act 1994 as the purchase was made before 1st October.

People who have taken things back to stores as faulty still have problems getting any redress at all. Frequently told that the store will send the item back for testing giving ridiculous reasons for not providing a refund or replacement, such as you shouldn’t put trainers in a washing machine. Unless the care instructions specifically say that you cannot put the footwear in a washing machine then there is enough evidence out there to say that you can! Independent reports you can take to court! Do not be fobbed off by companies that behave in this way! See the book for help with not being fobbed off, advice, tips and guidance on how to complain effectively.

If you have had trouble with Sports Direct specifically why not email the CEO? (The UK’s 22nd richest man you know), I think we can all guess now as to how he made his money and it appears it wasn’t by treating his staff and customers with respect!

Sports Direct CEO email address here.

Sports Direct Customer Service email cs@sportsdirect.com

Your return rights

  • If you change your mind then a retailer does not have to refund or replace the item, although many bigger stores do
  • Consumer Rights Act 2015 you are entitled to a refund (up to 30 days from purchase) for any item that is not as described, not of satisfactory quality , not fit for purpose or hasn’t lasted a reasonable length of time.
  • After this 30 days you will be entitled to a refund, replacement or repair but the retailer can insist on not giving a refund.
  • If the item you have bought online is in breach of the CRA though you are still covered by the 30 day rule and indeed up to 6 years for online and in store purchases.
  • If breach of CRA you do not pay postage
  • If no breach of CRA it will be down to the retailer’s terms and conditions
  • Sale items are bound by the same laws as mentioned above. The only thing that would be different is if a fault was pointed out at point of purchase and therefore reason for reduction.
  • For the first 6 months the onus is on the retailer to prove that the fault was not there at point of purchase and after 6 months the onus is on the customer.

See Your rights, mail order, online and deliveries for more information and Tips for How to Complain to get that complaint right!

 

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