Small Claims Court, what do I do when this happens ?

Tyler_Du

I've recently started a claim against a company for non payment of a mobile phone cashback claim. The claim is for the full years cashback (about £400) + the £50 courts fees. I have since recieved an email from the company saying they have made a payment (£94) by BACS into my bank account.

What do I do ? Should I let the court action continue ? I don't want to be out of pocket for the court costs. I should add that this is the first contact I've had from the company since sending them a 'Letter Of Action' almost a full month ago

The detail here is that the £94 covers the first cashback installment which they initially rejected. Under their Ts & Cs this voided the other 4 claims. Because of this I'm claiming the full years cashback through the courts.

The court action was only started a day or two before I got the email so I don't think the payment has come about because of the action.

MarkyMarkD

Well, you can't pursue the legal claim as they are no longer saying they won't pay up, presumably.

You should withdraw your legal claim as you'll lose the case anyway. And then pursue your supplier for the court costs, in writing etc.

If push comes to shove, you'd have to take them to court again for not paying up the court costs, at which point you'd have to demonstrate that you had cause to take them to court (because they'd refused to comply with the terms of your original contract).

g33za

Firstly if they were in breach of their terms and conditions for the cashback persist with the claim, you did give them 14 days (written letter sent recorded to their address) to respond with settling the first cashback claim?. And have you followed their t&c completely?

Vomityspice

I'm slightly confused as to your position. Have you made a number of cashback claims, all of which have been rejected? Or is it that they have rejected one, so you are trying to claiming for breach of contract?

Simply, your legal position is thus: as you have stated a claim already (electronic or paper application?) then just send an amendment document to the court (so as not to try and claim for monies already paid), and let the outstanding debt proceed (assuming that they actually owe you the money as opposed to potentially owing you the money).

In terms of contract law, the 'breach', as you see it does not give you a right to repudiate the contract as I suspect the company would argue that the cashback deal was what is classed as a 'warranty' (in law!), rather than a condition. As the amount is small, your not going to be arguing in High Court that it is an innominate term.

Additionally, I hope you haven't added the Court fees to your claim as they are automatically recovered if you are the winning party.

MarkyMarkD

I believe that the OP is saying that the suppliers has told them that, because they are rejecting the first cashback claim, that ends their liability under the contract. This is because the more dubious suppliers word their contracts in this way - the failure of any one claim ends the cashback deal.

So I can see why the OP took the legal route after being rejected.

I don't see where the OP is claiming that they wish to repudiate their contract. They are simply claiming for the outstanding cashback which their supplier was refusing to pay them, in breach of contract.

Quentin

Tyler_Durden_UK wrote: »

The claim is for the full years cashback (about £400) + the £50 courts fees. I have since recieved an email from the company saying they have made a payment (£94) by BACS into my bank account.

What do I do ? Should I let the court action continue ? I don't want to be out of pocket for the court costs.

Your claim should continue (you have already paid the court fee, and cannot get it refunded by the court anyway).

If they don't make a defence (paying you £94 is not a defence), then apply for judgement for the original total claim (including court fee) less the £94.

If they do enter a defence you can then decide whether to continue the case or not.

Vomityspice

Sorry for my confusion, but I was mislead by the fact that they had failed to pay any cashback (under their t&c) but had now paid the first installment (i.e. that the OP HAD (my emphasis) complied with their t&c's).

Perhaps a quick call to them might resolve the matter; if they deny your claim then process with your action, if they agree they owe you money, give them a deadline to pay and if they don't, process with your action. You can stop your action at any time but just make sure that you have the money first (including your listing fees!).

As they may already know that you have made an application to the court (they would have been served papers), it is cheaper just to pay up than to fight if they are in the wrong (you do have proof don't you? - Recorded delivery?).

Quentin

Vomityspice wrote: »

Perhaps a quick call to them might resolve the matter; if they deny your claim then process with your action, if they agree they owe you money, give them a deadline to pay and if they don't, process with your action. You can stop your action at any time but just make sure that you have the money first (including your listing fees!).

A quick call to them won't do anything other than alert them to the summons.

They have already ignored a deadline which is why the summons was issued.

Don't make any calls to them - just let the summons run its course. Ask for judgement if they ignore the summons and you have won.

Tyler_Du

Some more detail for you as I'm still confused as what I shoud do :-

I made my first (of 5) cashback claims, I checked the Terms I'd recieved and they said to send documents A and B. A little while later I got a letter from the company saying they had rejected the cashback claim because I hadn't sent document C. (which the Terms do not say to include) The Terms do state that if they reject a claim then all further claims are void. I wrote to the company giving them 10 days to respond / pay. They didn't respond within this time scale and I then started the action.
I had been advised on these fine forums that I could claim the full years cashback which I did. I did included the court fees in the claim.

The day after I started the action (and before I think it would have been sent to them) I got an email saying they had processed the 1st cashback. Now thats fine and good, but I have already paid the court costs.

If I continue with the claim is the court likely to award the full amount (including the court fees) less the £94 ?

Quentin

Your case isn't altered by them making a part payment.

They made the part payment after the expiry of the notification you gave them in the "Letter of Action".

The summons has been issued, and you are now awaiting the 14 days allowed for them to raise a defence.

If they don't then apply for judgement as soon as you can at the end of the 14 days. Ask for the full amount you claimed, less any money they have paid you.

If they do raise a defence you can then decide whether to continue the case, depending on what the defence is.

You cannot now save the court fee by withdrawing the claim - so you have nothing to lose by waiting to see what their defence (if any) is.

Tyler_Du

This now get interesting as they must of recieved the court paperwork this week, I'd actually started 2 actions on 2 contracts both for the reason givens above and lo and behold a chq arrived today for the cashback amount on the second contract. They have actually now paid the 1st cashback on both my contracts, which they had previously rejected.