Scottish "Simple Procedure" (Small Claims) against English Online Trader

benten69

Hi all,
Long story short, I'm helping a friend with a small claims case, we are in Scotland, the trader is an online retailer in England. The trader is Instasmile UK, the goods are poor quality, not fit for purpose, etc. She notified them that she was unhappy and basically wanted a refund under the Consumer Rights Act the same day she received them as they are absolutely terrible in all aspects. They refused to work with her and refused to work with an ADR, she also paid by debit card so no protection (I know, not a wise idea!) so Citizens Advise & Trading Standards have both pointed her to Small Claims court (Simple Procedure in Scotland).

Now here is the odd thing, we got the forms filled out at the weekend and today she has received notification that the court has rejected her case and the Rejection Reason says "At Incident Details please state why xxxxx Sheriff Court has jurisdiction in this matter" (xxxxx indicates location). Now I'm far from an expert, but why do we need to tell the court why they have jurisdiction?!

She called the court earlier today and they said normally you bring small claims up against people / traders in their local court, so taking someone in Glasgow to court when you live in Inverness would mean taking them to a Glasgow court. She explained to the court this was an online retailer and they said, in which case it is fine and they should be able to deal with it, she just needs to explain that in the forms.....however we have already done that!

In section D2 (where did this take place) we put down the sellers address, but in the "Details" box below we put "Online purchase from Instasmile UK website (https://uk.instasmile.com/)."

So I have recommended she call them back tomorrow and ask what is going on, but in the mean time I was wondering if anyone on here had any insight? Surely they can't honestly say that if she purchased an item and had them delivered to her home in Scotland she needs to raise a court case with the sellers local court in England, then pay travel expenses, hotels, time off work, etc, etc, especially for an online order.

Or am I totally wrong here and they will basically tell us to go file a case down south??

EDIT: Even found this on the Scots Courts website, so not a clue why it was rejected and they are asking us to explain where they have jurisdiction? Surely all online purchases count as "Consumer Contracts"

https://www.scotcourts.gov.uk/taking-action/simple-procedure/simple-procedure---making-a-claim

Under the section "Which court do I go to?"

"There are some cases where special rules apply, for example, a special rule applies, in most circumstances, to what are known as ‘consumer contracts’. An example of a consumer contract would be where you have reached an agreement with a shop to purchase goods and pay for them by instalments. If you, as the consumer, (the person purchasing the goods), wished to take court proceedings for any reason against the shop, you could choose to raise the proceedings either in the court within whose area you live or in the one within whose area the shop premises are situated. However, if the shop wished to take proceedings against you, it could only do so in the court within whose area you live.It is possible, in certain circumstances, to raise a claim in cases even where the defender does not live in Scotland, or when you do not know where he or she is. Deciding which court is appropriate is, in most cases, quite straightforward. If in doubt, you might wish to seek advice from one of the organisations listed above."

davidmcn

You always need to explain to the court why they have jurisdiction, so even if you think it's obvious you do need to actually state e.g. "the pursuer resides at [address], this court accordingly has jurisdiction".

I presume you've already checked that it is the correct Sheriff Court for her address, as the areas don't necessarily match postal or council areas e.g. people who live in East Renfrewshire need to go to Paisley, not Glasgow.

benten69

Thanks, very helpful! One question about your last point, how do we know for sure we have the right sheriff court for her address? I am pretty confident we have it right, but just want to confirm if possible.

davidmcn

benten69 said:

Thanks, very helpful! One question about your last point, how do we know for sure we have the right sheriff court for her address? I am pretty confident we have it right, but just want to confirm if possible.

There's a gazetteer here, though if in doubt probably best to phone the clerk's office and ask.

benten69

Thanks! That does confirm we have gone to the correct sheriff court. So a simple statement in the details that says "the pursuer resides at [address], this court accordingly has jurisdiction" is enough?

Any need to mention this is a consumer contract or anything like that?

DoaM

Doesn't she need to file Particulars of Claim with the SP claim? I assume these will mention the CRA 2015 being used as the basis of the claim.

davidmcn

benten69 said:

Thanks! That does confirm we have gone to the correct sheriff court. So a simple statement in the details that says "the pursuer resides at [address], this court accordingly has jurisdiction" is enough?

Any need to mention this is a consumer contract or anything like that?

Yes, that should be enough for jurisdiction.
You will need to explain the legal basis for the claim, haven't you already done that? In general you need to explain everything to the court, you can't just expect them to fill in the blanks.

benten69

DoaM said:

Doesn't she need to file Particulars of Claim with the SP claim? I assume these will mention the CRA 2015 being used as the basis of the claim.

In the claim we did explain that she requested a refund from the retailer under the Consumer Rights 2015, but they refused to co-operate and went on from there to explain how it has progressed (lack of willingness to work with an ADR, etc).

Is that sufficient, or do we also need to explain we are bringing this action to court because we believe the retailer has not adhered to the laws under the Consumer Rights Act 2015?

davidmcn said:

benten69 said:

Thanks! That does confirm we have gone to the correct sheriff court. So a simple statement in the details that says "the pursuer resides at [address], this court accordingly has jurisdiction" is enough?

Any need to mention this is a consumer contract or anything like that?

Yes, that should be enough for jurisdiction.
You will need to explain the legal basis for the claim, haven't you already done that? In general you need to explain everything to the court, you can't just expect them to fill in the blanks.

Thats good to know, hoping to sit down with her this weekend and sort it then re-submit, so will be sure to add that to the claim.

As for explaining the legal basis, as above really. We mentioned she requested a refund under the Consumer Rights Act and the retailer has refused to co-operate. Do we need to go into more detail?

Just want to be sure it doesn't get bounced back again for something trivial as the only thing they have mentioned so far is the jurisdiction item.

davidmcn

benten69 said:

As for explaining the legal basis, as above really. We mentioned she requested a refund under the Consumer Rights Act and the retailer has refused to co-operate. Do we need to go into more detail?

Yes, you should be explaining why that's the relevant law and why the retailer is obliged to refund. Merely saying that she's requested a refund under the Act doesn't actually go far enough (at least if it were a "proper" case, I appreciate the court is likely to give a bit more leeway for unrepresented parties making small claims).
This page has an example of a completely different type of civil case, but it gives you an idea of how these things are usually set out, narrating the facts and then explaining how the law applies and what you're seeking.

benten69

Ok, will be sure to clarify the point about the CRA 2015 and why we think the seller is obliged to refund. Much appreciated!

steampowered

The Scottish court system and English court system are separate. In legal speak this means you are serving outside of the jurisdiction.; just as if you were trying to use the English courts to sue someone in France.

I don't know about the Scottish courts, but certainly in the English courts there are additional procedural hoops you have to jump through to sue someone in Scotland - including using a slightly different process to start the case (you can't use the usual moneyclaimonline form), explaining the basis on which the court has jurisdiction over the defendant and completing notice of service outside the jurisdiction.

I don't know what the procedure is for serving proceedings outside of the jurisdiction in Scotland but you need to find out. All of the stuff people describe above about the Consumer Rights Act and particulars of claim is irrelevant to be honest. The courts won't even begin to look at the substance of the case unless you've jumped through the hoops on jurisdiction; whether or not the court has jurisdiction over the defendant is the first thing that gets looked at.

As this was a consumer contract relating to a sale into Scotland the Scottish courts do have jurisdiction over this case; you just need to jump through the correct hoops.