Advice needed in issuing a small claims court

zzzLazyDaisy

If it was me, I'd try consumer direct first.

Why? Because your e-mails won't stand up as a letter before action, so you are going to have to write to them formally anyway, before you start court proceedings. So by making contact with CD you are not causing yourself any delays.

Also if Trading Standards take this up on your behalf it won't cost you anything, but may get your money back without the stress and hassle of court proceedings.

And even if the company refuses to pay up, you will have correspondence between TS and the company solicitor which will tell you what they are going to say, which might help in drafting the particulars of claim and presenting your case.

However, you will need to be on the ball and keep in touch with TS in case the company uses delaying tactics.

Your claim will be for breach of contract, so you have 6 years from the breach to lodge proceedings - although I wouldn;t recommend waiting that long as memories fade and facts can become muddled.

k1mmie

Ok guys. Just spoke to Consumer Direct. They have advised write once more and send recorded. If that fails then I will have to go to small claims court. They cannot help me.

zzzLazyDaisy

k1mmie wrote: »

Ok guys. Just spoke to Consumer Direct. They have advised write once more and send recorded. If that fails then I will have to go to small claims court. They cannot help me.

Interesting. I would have thought that trading standards would be interested in this, especially if several people complained.

Okay, do the letter and in the meantime I'll dig out a particulars of claim.

k1mmie

zzzLazyDaisy wrote: »

Interesting. I would have thought that trading standards would be interested in this, especially if several people complained.

Okay, do the letter and in the meantime I'll dig out a particulars of claim.

Thanks I appreciate any help.

The lady was very helpful and of course has to be objective, but some of the things she said were:

The judge would not be interested in any other people stories even if the are the same. I said I can understand that but does it not show company character? She said they are not interested.

I said they withdrew all my tools, I.e. Website, etc and therefore was not able to try to trade. She said what amount would you be looking to reclaim. Tricky one this as she said effectively they supplied all the tools required from their contractual obligations. Even if they withdrew them once I refused to pay the monthly fee.

I said the training and cv search facility provided was not Fit for
purpose. She said but they provided it!

So I am assuming I go down the road of breach of contract, but before that I will send a recorded letter. How long should I give to respond and should I word it that I am looking for a refund and leave the amount out?

She also advised that I get a letter from a person in the industry to confirm this type of training alone would not be sufficient to run a business. This I should be able to do as I did contact someone at the time.

She also said the time passed could be an issue and why did I not set up with another company or pay for a new website to trade once mine was withdrawn. I said I had paid all my savings into this business. I also said that I put it down to experience even though I was reluctant to lose the money, but after finding all these other people they did the same to, I am determined to try to recover some if not all of my money.

zzzLazyDaisy

k1mmie wrote: »

Thanks I appreciate any help.

The lady was very helpful and of course has to be objective, but some of the things she said were:

The judge would not be interested in any other people stories even if the are the same. .

That is absolutely right - I was referring to trading standards and the fact that if they receive a number of complaints about a company's activities they are more likely to investigate.

As to the other comments CD made, they are all valid. There is never any guarantee in litigation and at the end of it all you may find that the judge sides with the company. It really is impossible for anyone on here to form a view about that because we don't have all the facts. It is entirely up to you if you feel that you have a good case and wish to take it further.

Your local county court will have an information pack, and it is certainly worth giving them a ring and asking for a copy as it will talk you through the process step by step.

Here is a rough draft of a Particulars of Claim for you to play about with. You will need to refer to the in formation pack for the calculation of interest.

You may also choose not to ask for a full refund, but instead to ask for a smaller sum to reflect any benefit that you feel you received or alternatively you might ask for 'compensation in such amount as the court deems fit'

I hope this helps, but do bear in mind that this isn't intended to be legal advice, and you may wish to seek more detailed advice first - for example from the CAB.

One final point, if you have house insurance it is worth checking if you have legal cover, as that will give you access to legal advice and possibly also representation.

Daisy

---

Specimen particulars of claim

[FONT=&quot]IN THE [………..] COUNTY COURT [/FONT]

[FONT=&quot] Case No. [/FONT]

[FONT=&quot]BETWEEN [/FONT]
[FONT=&quot] JOSEPH BLOGGS Claimant[/FONT]

[FONT=&quot]and [/FONT]

[FONT=&quot]A B C ELECTRICAL SUPPLIES LTD Defendant [/FONT]

[FONT=&quot]PARTICULARS OF CLAIM[/FONT][FONT=&quot] [/FONT]

1. [FONT=&quot]On the 1st September 2002, I, the Claimant, entered into a contract for the supply of [insert brief summary] and paid the sum of [insert amount][/FONT]
2. [FONT=&quot]The defendant failed to provide the services under the contract properly or at all; in particularly: [/FONT]

[FONT=&quot]

. [/FONT]

1. [FONT=&quot]I expressed my concern to the defendant by [telephone/e-mail] on [date][/FONT]
2. [FONT=&quot]Insert what the response was [/FONT]
3. [FONT=&quot]I subsequently telephoned the Defendant several times on
   but received no reply I attach copies of these e-mails marked ‘Appendix 1’[/FONT]
   • [FONT=&quot]On [date] I wrote a letter before action advising the Defendant of my intention to issue proceedings in respect of its breach of the Supply of Goods and Services Act 1982 as amended. I attach a copy of my letter marked ‘Appendix 2’. [/FONT]
   • [FONT=&quot]I seek a full refund of the price paid for the services in the sum of [insert amount]. I attach a copy of my receipt marked ‘Appendix 3’. [/FONT]
   • [FONT=&quot]I also claim interest on the above amount pursuant to the County Court rules.[/FONT]
   [FONT=&quot]I, the Claimant, believe that the facts stated in these Particulars of Claim are true. [/FONT]
   [FONT=&quot]Signed ………………………………………………….. PRINT NAME [/FONT]
   [FONT=&quot]Dated……………………………………………………. [/FONT]

k1mmie

Thanks Daisy, I will get the letter sent giving them 14 days to respond and I know they won't so in the new year I can commence small claims. Thanks for these particulars.

Crazy_Jamie

Whilst I'm sure that that draft Particulars would work for a litigant in person in a small claim, and therefore is suitable for the OP's purposes, I would do it differently. I certainly mean no offence to Daisy by this (and I am sure she will not take any), but I would suggest the following framework:

<Header is fine as per Daisy's precedent>

1. At all material times the Defendant was a company in the business of offering < specify services>, whilst the Claimant was a customer of the Defendant's.

2. < If any representations were made to you prior to entering into the contract regarding the services that you were to receive, put details of them here>

3. On the < enter date> the Claimant entered into a written contract with the Defendant, a copy of which is attached as Appendix 1.

4. The following were express terms of the contract: < specify the terms the relevant terms within the contract, i.e. the price you paid and the services to be offered

5. It was an implied term of the contract that the Defendant would exercise reasonable skill and care in the performance of the contract.

6. In purported performance of the contract, < insert facts establishing breach>

7. The Defendant, its servants or agents, were in breach of contract and/or negligent

PARTICULARS OF BREACH OF CONTRACT AND/OR NEGLIGENCE

a) <Breach of contract 1> e.g. Failed to provide training facilities tailored to the knowledge level of the Claimant
b) <Breach of contract 2> e.g. Failed to exercise reasonable care and skill in performing the contract
c) <Example of negligence>

8. As a result of the Defendant's breach of contract and/or negligence, the Claimant has sustained loss and damage <specify any loss as a result of the breach of contract; if none them combine paras 8&9>

9. For the avoidance of doubt, the Claimant seeks a full refund of all monies paid under the contract in the amount of <specify>

10. The Claimant further claims interest on the amount claimed pursuant to s.69 of the County Courts Act 1984 at a rate of 8%, or such rate as the Court awards <technically should put an interest calculation in here, but can probably leave it>

AND The Claimant claims:
(1) Damages
(2) Interest pursuant to statute

<Statement of truth as Daisy has put is fine>

As I said, the Particulars that Daisy put out are probably more than adequate, but for the sake of putting in my thoughts on the matter I would suggest (with no disrespect to Daisy) that mine are more professional. You'll note that I left out some of the history of correspondence between the parties; in my opinion this should be included in a witness statement that can be annexed to the Particulars of Claim, but I would suggest (in line with Daisy's point in the next post) keeping hold of the Witness Statement until the Court directs that you should file and serve it. The layout in terms of the header and statement of truth is the same as the Particulars (obviously with 'Witness Statement' in place of 'Particulars of Claim', but it includes full facts and relevant history between the parties, including such things as correspondence. The Particulars of Claim is a more streamlined legal document.

Obviously I would encourage you to ask any questions that you have about this. As I said, my Particulars is probably in excess of what you actually need because Judges are far more lenient with litigants in person compared to solicitors/barristers, but nevertheless I thought I should add my contribution.

zzzLazyDaisy

Hi, I have absolutely no problem with another viewpoint, and I certainly don't take offence

I tend towards the view that in the small claims court where the claimant is representing themselves it is probably best to keep things simple and at least at a level where the claimant understands what they have written and why (no offence OP!).

But that is the beauty of the forums, and the reason why I choose not to respond to requests for assistance by pm/email.

I'd differ re the witness statement though - I agree that this is where the bones of the particulars of claim will be fleshed out with more detail, but I wouldn't append it to the Claim, I'd wait for the allocation questionnaire and get discovery out of the way first. But that's just my view.

Thanks for taking the time to contribute Jamie

Crazy_Jamie

zzzLazyDaisy wrote: »

Hi, I have absolutely no problem with another viewpoint, and I certainly don't take offence

I tend towards the view that in the small claims court where the claimant is representing themselves it is probably best to keep things simple and at least at a level where the claimant understands what they have written and why (no offence OP!).

But that is the beauty of the forums, and the reason why I choose not to respond to requests for assistance by pm/email.

Thanks for taking the time to contribute Jamie

I chose to tread carefully because people have a habit of taking constructive alternative viewpoints to their own in the wrong way. I had no doubt that you would take it in the right way, though

For what it's worth, I do agree with you in terms of keeping things simple. I would seek to stress that that framework is what I would work from if I was drafting these Particulars, but the OP is starting from an entirely different point in terms of legal knowledge. In the circumstances I wouldn't want the OP to feel that they have to include legal terminology and references that they do not fully understand, and to that effect I will reiterate that Daisy's framework will likely be more than adequate for a litigant in person bringing a small claim.

I'd differ re the witness statement though - I agree that this is where the bones of the particulars of claim will be fleshed out with more detail, but I wouldn't append it to the Claim, I'd wait for the allocation questionnaire and get discovery out of the way first. But that's just my view.

Don't get me wrong; I agree with this as well. I just thought that it might benefit the OP to bundle them all in together and not worry about court deadlines further down the line. Of course the correct move both tactically and procedurally is to exchange witness statements on or shortly before the date specified by the Court following allocation. Ironically on this point (especially in light of my Particulars) I chose to offer advice tailored to the OP's position rather than what is technically correct. Perhaps the best move would be to draft the witness statement with the Particulars (to keep all the work together) but wait until the relevant Court direction to file and serve it.

In fact, I'm going to edit my original post to point that out. You're right in that there is no real benefit to serving it with the Particulars.

k1mmie

Thanks to both Daisy and Crazy Jamie. Appreciate all your support. I have to admit Jamie, you lost me on the first paragraph.(sorry). However, I would very much like to put something together with both your help if this is okay with you. I am going to send this letter recorded delivery, to give this company one last chance first. Would either of you have an example of a template letter that maybe I should put together. As you both sound more technical and professional than myself, any help greatly received. Thanks.