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

benten69

steampowered said:

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.

Think that last bit is the main thing, finding out what those correct hoops are. However the court response simply says "At Incident Details please state why xxxxx Sheriff Court has jurisdiction in this matter".

So looks like they only want the reasons noted in the application. I would have assumed (I know they say never assume) that they would have said "fill out form XYZ to accompany this application due to jurisdiction" or similar if there were separate forms required.

Even when she phoned the court yesterday they just said to make it clear it was an online transaction with a retailer and that the court has jurisdiction over that, no mention of additional forms, so I am guessing there are no additional forms in Scotland?

Think they mentioned that the main issue is we put down the retailers address (in England) as to the location of where it happened so they are asking why should they deal with it here. Just need to make it clear it was a consumer contract relating to a sale in Scotland as you have said.

DoaM

Check the seller's T&Cs ... do they state which legal system governs the transaction?

benten69

DoaM said:

Check the seller's T&Cs ... do they state which legal system governs the transaction?

The website says "These terms are governed by English Law and you can bring legal proceedings in respect of the products in English courts".

However the same terms also say the following...."WE DISCLAIM ANY AND ALL WARRANTIES OF ANY NATURE, TYPE AND/OR EXTENT WHATSOEVER, INCLUDING BUT NOT LIMITED TO FITNESS FOR A PARTICULAR PURPOSE"

So they even say that their products dont need to be "fit for purpose" even though statutory law says otherwise. Going off the previous comments it seems that for this type of issue (an online retailer selling goods not fit for purpose to an end consumer) a Scottish court does have jurisdiction throughout the UK and vice versa for English courts and Scottish retailers, etc, regardless of what any Terms on a website say.

The website terms even go onto state they are not responsible for any injuries that arise out of their own due negligence which I'm sure like the piece above about fitness for purpose is something that you cannot just sign your rights away to as a consumer. Their terms seem to violate statutory law and as a consumer you cannot sign away your statutory rights.

They are so confident in their Terms they even go on to say "If a court finds part of this contract illegal......"

That kind of says it all, no business adds that in their terms if they are positive all their terms are above board.

davidmcn

I'm pretty sure that (at least as far as consumer contracts are concerned) businesses can't say "you'll need to come to our local court if you want to sue us".

I don't think there are any great jurisdictional problems with raising cross-border small claims, enforcing the judgements can involved a bit more admin as you need to re-register the judgement in the local jurisdiction before you can send round local bailiffs / Sheriff Officers / whatever.

brianposter

The Scottish Small Claims Court has been "got at" by lawyers so that in practice you almost need a lawyer to discover the correct procedure.

The only solution seems to be to keep going back to the court (or preferably, another court ) to find out how it works. You must not be afraid of being a complete PITA as far as the court is concerned.

Nostrus

There are two procedures for civil debt recovery in Scotland; Ordinary Procedure (debts over £5,000 and more "complicated" cases such as those involving family law) and Simple Procedure (debts under £5,000 and straightforward cases, including car repossession without a monetary sum sued for).

There, fixed all that "getting at" by solicitors, as lawyers aren't a thing in Scottish law.

And yes, as the quasi-delict (damage) has been done to you, you are perfectly within your rights to haul them up to your local Sheriff Court.

brianposter

Nostrus said:

There are two procedures for civil debt recovery in Scotland; Ordinary Procedure (debts over £5,000 and more "complicated" cases such as those involving family law) and Simple Procedure (debts under £5,000 and straightforward cases, including car repossession without a monetary sum sued for).

There, fixed all that "getting at" by solicitors, as lawyers aren't a thing in Scottish law.

And yes, as the quasi-delict (damage) has been done to you, you are perfectly within your rights to haul them up to your local Sheriff Court.

You may note that I used a small "p" for procedure, but if you could enlighten us with respect to the next two steps in the Simple Procedure, that would be very helpful.

benten69

Right, so things seem to have changed...hoping someone can advise. Today I just randomly decided to look up the company on companies house and now “Instasmile Limited” is in Liquidation! However the website is still up and running under “Smile Lab Solutions Limited”.

The Simple Procedure timetable gives them until 7th April to respond to the court which obviously won’t happen, even the address has changed on companies house (presumably to that of the receiver).

What can we do (if anything) when the 7th comes and they have not responded? Sure we can ask the court to side in our favour but with a company in liquidation and a “new” company taking over it just feels it’s all about to go pear shaped.

Any thoughts, ideas or suggestions on this please?

EDIT: According to docs on companies house they owe over £825,000 and only have assets worth £154,000....HSBC alone are owed £310,000

Some how I don’t think my friend is getting her money back now...unless anyone has some ideas??

benten69

Anyone able to help??

davidmcn

If you're an ordinary creditor it's rarely worthwhile hoping to get anything out of a liquidation.