The Small Claims Court process made simple

legal actionWhat you need to know about using the Small Claims Court

 

What you can try before using the Small Claims 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, contacted the CEO of the company (addresses can be found at ceoemail.com) used the How To Complain: The ESSENTIAL Consumer Guide to Getting REFUNDS, Redress and RESULTS! 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 higher of course. I really wanted to not be paid in time so I could send the bailiffs in and actually 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 paperwork (I did not find the court paperwork cumbersome but putting evidence together can be).
  • The likelihood of winning.

Before you start the small claim process

The Pre-Action Conduct guide, published by the Department of Justice, explains the conduct and steps courts would normally expect parties to take before commencing proceedings for particular types of civil claims.

This conduct states that litigation should be a last resort. The defendant and complainant should consider whether negotiation or ADR might enable them to settle their dispute without commencing proceedings. They should consider the possibility of reaching a settlement at all times throughout the process.

The court may decide that one or more parties (claimant or defendant) has failed to comply if s/he has unreasonably refused to use a form of ADR, or failed to respond to an invitation to do so.

If there has been a non-compliance that is not materially important then there’s no need for the court to do anything. But if there has been a non-compliance the court could pause or stop the proceedings until the party fulfils its duty under the pre-action conduct/practice direction. It is possible that if a claimant hasn’t tried ADR, the court could stop the case proceeding any further until the parties have used an ADR provider. The court could also apply sanctions.

The sanctions that could be applied (for any non-compliance with the protocol) cover the financial implications. The party at fault for non-compliance may have to pay the cost of proceedings, or part of the cost to the other party. This could be on an indemnity basis (which means that it might not be proportionate). If the claimant has been awarded money s/he may be awarded less interest than otherwise may have been the case. (If the defendant is at fault, s/he may be awarded a higher rate.

Small claims court fees

You can go through the small claims track process for amounts up to £10,000. Over this 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.

Fees can be found at  the Government website Make a court claim for money.

Small claims court 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.

How to enforce a judgement

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.

Alternatives to the small claims court

See Alternative Dispute Resolution: What it all means for full details and links to some warnings about which companies to use.

A film for CAB on options open to you when you can’t get joy through customer services:

The Complaining Cow – when things go wrong

Fewer than 45% of People in the UK Use their Consumer Rights

Well that was interesting. Thank you to everyone who responded to the survey How, When and Why Do You Complain?

Key findings

How many people complain?
According to this survey undertaken July 2014 70% of us complain when we receive poor service. This rises to 90% who complain when we purchase a faulty item. If you look to your own networks this doesn’t really ring true and I think many people put that they generally complain because they felt that they should! Or it is not every time they receive poor service. Or many of those complaints are not successful in gaining redress. This theory is backed up by answers to another question, “If you usually don’t complain is it because…” Now, 59% of respondents gave reasons and only 41% said that they always complained.  However, complaining is on the increase and the latter figures fit in with The Ombudsman’s report on complaining. 38 million customers complained in 2013. But 40 million more complaints went unaddressed as people stayed quiet. 48% and 52%.

In addition, as detailed below many more people are now using social media to complain and some people may consider writing a 140 character tweet as regularly complaining! It’s not necessarily always gaining redress and it’s very difficult to assert your legal rights in 140 characters!

46% say that when they don’t complain it is because it is too much effort or takes too much time.

Gaining redress
When considering purchasing an item/service either online or in store how easy it will be to gain redress if anything goes wrong is a factor in 74% of people’s decision making about where to buy (either sometimes or always). The same number of people shop online as do in store because they think it will be easier to return an item that way.

How well do you know your legal rights?
This is what I found the most interesting. Given that 70- 90% of people say they always complain, only 7% said they know their legal rights well and use them regularly. 5% know the basics of the Sale and Supply of Goods Act and Supply of Goods and Services Act. A further 33% will check out their rights before complaining, so assuming that they won’t always do that for various reasons, we know that fewer than 45% of people use their legal rights. So 7 + 5 + 33 = the 45% but I believe that is lower as some of the 33% won’t always check out their legal rights and complain.

Uswitch undertook a survey in May 2014 and found that almost two fifths of consumers (38%) are unsure about their rights and 36% say they do not know them well. Only 4% claim to be truly confident.

How many people do you tell about poor service?
Remember the line “Receive good service tell 1, receive poor service tell 10”? Not any more.
Less than 2% of people tell no-one.
49% tell 1 – 10 people
11% tell 10 – 20 and now
38% tell hundreds and sometimes thousands of people due to social media.
So companies be warned! It is wholly irrelevant how many complaints you actually receive! Less than 60% don’t always complain but look how many people are they telling?

Social media
68% of respondents use social media to complain.
37% of those find it effective sometimes
16% find it always effective
12% find it is never effective
Clearly social media is on the rise. There are more details on what social media works for in complaining here.

When you receive good service do you give feedback?
The majority of people think they do. I think some customer service people may disagree!

Summary
It would appear that people think they complain more than they do, certainly less know their legal rights. There is an increase in using social media to complain and whilst this may be considered complaining, it often doesn’t gain the legal redress that longer correspondence elicits. The main reasons for people not complaining are that it takes too much time and effort which might suggest that companies make it difficult to complain? Thoughts around how easy it is to gain redress when things go wrong are becoming a key factor in where people choose to buy.

People really need to complain more. If they did perhaps service would improve it would have to. And now, to help you, here’s a book! #complainlikeacow

How to Complain: The ESSENTIAL Consumer Guide to Getting Refunds, Redress and RESULTS! Take a look at the reviews too! #chuffed 🙂

Don’t forget, The Complaining Cow’s Top 20 Tips Tips here and video here:

Helen Dewdney, The Complaining Cow BBC Breakfast TV Discusses How We Complain in the UK