Win in the small claims court!

Rosalind Kent shows you how to be successful in the small claims court.

If you have ever been involved in an unpleasant disagreement with a rogue builder, trader or even a family member, you may have heard the words ‘So sue me’ before.  It can be a daunting prospect to take someone to court, and not everyone is in a hurry to take legal action (we’re not Americans, after all!)

But, if you have exhausted all other routes, such as negotiation, mediation or alternative dispute resolution, then it might be the only option left.

The County Court can hear a wide range of non-criminal cases, but in this article, I’m only going to examine the process for going to court to retrieve money lost in consumer cases (i.e. debt recovery, damage to property, bad workmanship or problems with goods or services).

What will it cost?

You start the process by filling in a claim form, which can now be done via the government Money Claim OnLine website. This is not only more convenient but also cheaper as you get a discount on fees. The Court will allocate it to a specific track: small claims, fast track or multi track.

For cases that are not too complex, and are under £5,000, the small claims track is likely. The process is designed to be quick and cheap, you should not need a solicitor and if it is a simple, undefended case you should not have to attend court.

If the other side does offer a defence, some cases can still be handled without a court appearance, but you may have to prepare for yourself for the possibility of going to trial.

The fees involved in making a claim for money on the small claims track are:

If the defendant is defending the case, and the claim is for over £1,500, you will have to pay another fee of £35 when you return your allocation questionnaire, so that the Court can decide which track to put your case on. If the Court decides to allocate it to the fast or multi-track not only are the fees for issuing a claim higher, the allocation fees are £200. If you win, the other side will be ordered to pay your costs, and you should get the fees back - but more about ‘winning’ later.

If your claim is for just over £5,000, request that it be allocated to the small claims track anyway, to keep fees down. The Court does not have to do this, but if they think it is appropriate they just might.

Who are you suing?

Not as stupid a question as you might think! There are some unscrupulous traders, who do not give their correct details. Find out all you can about who you are dealing with. Are they a limited company or a sole trader? If you have bought something from a website, do they have a trading address in the UK? If they only have an address abroad this will make any legal action you take much more complicated.

You can check the details of a limited company using the Companies House free WebCHeck service. This shows, amongst other things, the registered address and whether it has had any insolvency action taken against it.

If the company is insolvent, it shouldn’t be trading in the first place, but you won’t be able to start legal action against it without the permission of the Court. You can check if a company or individual is insolvent by searching the Individual Insolvency Register).

With a sole trader you can either sue the business, or the individual who owns it. Where possible, go for the owner, as they are personally liable for all debts. You will need to know the person’s home address if you want to sue them.

A sole trader business must display their business name and address on their stationary, invoices and at their premises, but an individual’s home address does not have to be supplied. If you can find it, using legitimate methods (or the phonebook!) then you can serve your claim form with greater effect.

A cautionary tale

So, you’ve taken action, you have a judgement in your favour, and you can now sit back and wait for the other side to pay up.

Or, maybe not. Sadly, the Court can’t just wave a magic wand and spirit the money back into your pocket. Particularly with repeat offenders, who have nothing to give and little to lose, a Court order is just another piece of paper to put in the bin.

An illustration of this involved a trader who had been taking money from customers and then simply refusing to provide them with the services bought. He had a large number of customers pursuing him through the Courts, but he clearly had no intention of paying.

Even when the Court sent bailiffs round they were unable to find anything of value. One customer applied to make the trader bankrupt (at his own cost), but he was so far down the list of creditors he was never going to see a penny. The old saying about throwing good money after bad should be heeded!

Evidence later started to come to light that the trader had moved premises, changed his name, and started all over again. Sigh...

This was an extreme case, but it raises an important point. Court action can be time consuming, and expensive. Even if the Court orders the other side to pay, you might not see a penny. You could try to enforce the order (sending the bailiffs round), incurring more expense (another £35) and that could still yield nothing.

In these circumstances, it might be best to chalk the incident up to experience and walk away an older and wiser person!

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