Paid childminder fee during lockdown but childminder now closed business. Help please!

LouMitt

jamielutz1987 said:

LouMitt said:

macman said:

Was this a sole trader or a limited company? She doesn't appear to actually be insolvent, she has simply made the decision to cease trading. If so, and assuming a small trader, which makes her personally liable, there is no reason why she cannot refund you, and your remedy is therefore an LBA, followed by a small claims action if necessary. Her action seem to be a clear breach of contract.

Yes that’s correct she has made the decision to cease trading in favour of her second business venture.

Sorry for my ignorance, what is an LBA? 

Thanks. 

LBA = Letter Before Action or Letter Before Claim

Explained here https://www.citizensadvice.org.uk/law-and-courts/legal-system/small-claims/making-a-small-claim/

You will need to do this even if you've already complained. If the letter before claim doesn't resolve the problem, you can start your small claim online.

An LBA usually includes -

• your name and address
• a summary of what’s happened
• what you want the person or business to do about it
• how much money you want - like the cost of repair or a replacement - and how you’ve calculated that amount
• a deadline for reply - usually 14 days
• that you’ll start court proceedings if you don’t get a reply

An LBA is often enough to trigger a negotiation or settlement

Thank you to everyone for being so helpful thus far. 

We have sent a LBA and are currently in the 14day period awaiting a response. Please could anyone advise what I should expect next/how we should proceed? 

I’m presuming a reply should be sent to us in letter form? 

If the reply we receive is not in favour of coming to an agreement, how do we access an alternative dispute resolution service? Is there a cost for this? 

We are trying to avoid taking it to a small claims court if possible and will only do this as a last resort. 

Any help gratefully received! (As you can tell we have never been in this situation before!)

Thanks 😊

macman

What you should follow through with is exactly what you have said you will do 14 days after sending the LBA. Which is presumably to start an action via the small claims online process. This is by far the most efficient and economic way of pursuing your claim, so I don't understand why you now see it a 'only a last resort'. However, you may find that the LBA itself is sufficient to produce a refund.
The reply can be by whatever means the defendant chooses-or they might not reply at all. It doesn't matter. If no response within the 14 days, start the claim-do not enter into any discussion about it, or you will show a lack of resolve.

silvercar

macman said:

What you should follow through with is exactly what you have said you will do 14 days after sending the LBA. Which is presumably to start an action via the small claims online process. This is by far the most efficient and economic way of pursuing your claim, so I don't understand why you now see it a 'only a last resort'. However, you may find that the LBA itself is sufficient to produce a refund.
The reply can be by whatever means the defendant chooses-or they might not reply at all. It doesn't matter. If no response within the 14 days, start the claim-do not enter into any discussion about it, or you will show a lack of resolve.

I agree. The only slightly softer approach would be to complete the forms and print them out, send them to the childminder saying you will submit if you don't hear back within 3 days and remind them that you will also be pursuing them for court costs, so the amount will increase. Emphasise that this is one last attempt to resolve things before taking court action.

GDB2222

macman said:

What you should follow through with is exactly what you have said you will do 14 days after sending the LBA. Which is presumably to start an action via the small claims online process. This is by far the most efficient and economic way of pursuing your claim, so I don't understand why you now see it a 'only a last resort'. However, you may find that the LBA itself is sufficient to produce a refund.
The reply can be by whatever means the defendant chooses-or they might not reply at all. It doesn't matter. If no response within the 14 days, start the claim-do not enter into any discussion about it, or you will show a lack of resolve.

I agree with the above, except:
1. Wait 2 to 3 extra days before commencing action, using MCOL.  I would inform the defendant before pressing the go button. 
2. Do be prepared to negotiate and consider any offer made.
3. If the defendant has no money, as is distinctly likely, you may win your case in court but receive no payments. About half of County Court judgements go unsatisfied. It will cost you money in court fees to apply to court, so you could end up even worse off. I agree that court action is the last resort.

LouMitt

macman said:

What you should follow through with is exactly what you have said you will do 14 days after sending the LBA. Which is presumably to start an action via the small claims online process. This is by far the most efficient and economic way of pursuing your claim, so I don't understand why you now see it a 'only a last resort'. However, you may find that the LBA itself is sufficient to produce a refund.
The reply can be by whatever means the defendant chooses-or they might not reply at all. It doesn't matter. If no response within the 14 days, start the claim-do not enter into any discussion about it, or you will show a lack of resolve.

Thank you for your replies. 

I was confused as to where/how I access a mediation service, I now understand it will be offered/available once I complete the small claims court process after reading online. Sorry for the confusion. The best outcome would be for the letter to provide a refund without us needed to pursue to further. 

If we receive a response from the defendant for anything other than the full amount (I.e. a partial refund) should we enter into discussions regarding this? I don’t want to get the process ‘wrong’ so to speak. 

Apologises for my lack of understand on the matter. I have found varying information online. 

Thrugelmir

LouMitt said:

macman said:

What you should follow through with is exactly what you have said you will do 14 days after sending the LBA. Which is presumably to start an action via the small claims online process. This is by far the most efficient and economic way of pursuing your claim, so I don't understand why you now see it a 'only a last resort'. However, you may find that the LBA itself is sufficient to produce a refund.
The reply can be by whatever means the defendant chooses-or they might not reply at all. It doesn't matter. If no response within the 14 days, start the claim-do not enter into any discussion about it, or you will show a lack of resolve.

If we receive a response from the defendant for anything other than the full amount (I.e. a partial refund) should we enter into discussions regarding this? I don’t want to get the process ‘wrong’ so to speak. 

The defendent may well respond with a defence to the claim. You'll then have to decide how to proceed further. 

jimkelly

It would appear you have as close to a water tight case as is possible - to the layman at least.

If they don't reply to the the LBA, they are just digging themselves a bigger hole.

GDB2222

"If we receive a response from the defendant for anything other than the full amount (I.e. a partial refund) should we enter into discussions regarding this? I don’t want to get the process ‘wrong’ so to speak. "

Yes, you should definitely discuss any offers you receive. You won't harm your case, and the courts expect you to try to settle.  You can make any such discussions 'without prejudice', so any compromises you indicate you might accept cannot be mentioned in court. 

My experience, having been in court rather a lot (mainly as an expert witness), is that nobody enjoys it. It's quite a learning curve for the layman and quite anxiety-inducing. So, if you get offered something reasonable, take it.

silvercar

jimkelly said:

It would appear you have as close to a water tight case as is possible - to the layman at least.

If they don't reply to the the LBA, they are just digging themselves a bigger hole.

I agree with this. A court is not going to look favourably on someone who doesn't make an effort to respond.

Thrugelmir

silvercar said:

jimkelly said:

It would appear you have as close to a water tight case as is possible - to the layman at least.

If they don't reply to the the LBA, they are just digging themselves a bigger hole.

I agree with this. A court is not going to look favourably on someone who doesn't make an effort to respond.

Why the assumption that a defence isn't going to be made. This will then require a counter claim.