Small claims court

Confussed12

I had a driveway recently laid to a very poor standard and I am considering taking this individual to court.
My questions are: 1. he is not registered with companies house so I believe that makes him a sole trader, he has threatened to fold his company, if he does this and I do go to.court a win is no longer liable ie will instill get any money awarded.
2. I believe each individual is liable for their own costs, if he does instruct a solicitor and I did lose would  I be liable for his cost and the cost of his solicitor.
Basically what I am considering before I decide to go to court is, will I ever get any money back if he decides to play games and fold his company etc.
3. I believe that during the process the court will instruct each party to produce an expert report, if I win can I add this to my claim and if I lose do I have to pay for his report.
Thanks in advance 

pelirocco

Only  directors of limited companies have  protection from company debts ( their are some exceptions )
 A sole trader is responsible for debts , if he has any money to pay is another thing

davidmcn

If he doesn't have a company then how can he "fold his company"? He could declare himself bankrupt (if he actually is), though that's a rather extreme step to take. In any event, a judgement is only useful if the debtor actually has assets, the money isn't going to be magicked up out of nowhere.

You don't (generally) get awarded legal costs in the small claims court, and if he is genuinely broke he's hardly likely to be instructing a solicitor anyway.

tacpot12

You really need to see if he has any assets. You also need to know his home address to sue him, so find out his home address first, and then find out if he owns it via a search of the Land Registry.

Sandtree

You need to be confident of who you are contracted with etc...

As a sole trader then there is only him... there is no business, they can have a trading style (aka name) but legally its always them. You would sue him personally for the damages. He can cease trading if he wants but suicide is the only way to fold the business.

If he is incorporated then the company is a legal entity in its own right and he is a director and most likely a shareholder. Assuming you contracted with the business you'd have to sue the company and cannot sue him personally unless he gave any form of personal guarantee in the contract.  In this case he could go into voluntary liquidation but there are mechanism at your disposal to stop it due to the outstanding action and possibly end up going down an involuntary route and then the administrator will consider things like if he's attempted to deprive the company of assets etc.

Solicitors costs depend on which track of the court process the claim is assigned to... small track, normally claims under £10,000 and generally stops everything but very most token costs. In principle the courts are guided to push things into the lower tracks but some other complexity can push claims into higher tracks where more fees can be added. Similarly the judge does have discretion to award costs in fairly exceptional circumstances so there are rare cases where people just haven't followed due process, the case is vexatious etc then they can award (and sometimes against the winner)

The English court system is based on common law, the judge is there to judge based on the evidence presented to him. Under Roman law, which is the other most common legal system, the judge's role is to investigate the claim. As such, here the judge will not instruct you to provide an expert report... if you want to provide one, and it certainly can be sensible in certain cases, then you add it to your costs. Whats allowable is dependent on the court track, small track is limited but less so than with legal fees. The loser will be required what the judge believes is reasonable for the case - remembering again he can go above the limits in exceptional cases.

Confussed12

The guy in question has a trading name and I've found his contact details on two other companies but I'm not sure if they are live or not, it was just from an internet search I found his name associated with these other companies, he isnt on companies house. when I paid him it went in to an account in his personal name. During our email exchanges he said he was going to fold his company but I think that was just to try and put me off?. Things have got to a stail mate point. I've sent him a before court action letter which he just replied that nothing is wrong in his mind. I know I've got to.decided if I want go to the small claims court but I hear all over these sites of winning and never getting any money, this guy makes money as he told me hes been busy since last yr but the million dollar is where is it, as I said my money when in to his named account, ref his address it is a local building with about 40 other companies registered there ie it must be a PO Box. I think he has money but I definitely know hell never pay but I dont know how he will react with a court order.
Thanks for the replies, i haven't got a clue about how people fold companies and then hid money. How can it be right to win a case then get nothing as a result of someone's unwillingness to follow a court order. One final question. If the court serves his papers to this PO Box / local building, if he dosent check this place does it mean he hasnt been served or do I have to tell him as I do have his email address or should I just let the system do its thing. I've been told that in my case if it goes to court the judge will order an expert report which I believe we both have to agree on a split the cost which again I know he wont pay.
What a mine field 

Sandtree

The first question is always who you contracted with... did you have a contract or invoice? If not how did you originally find them?

macman

A 'trading name' is not necessarily a company. I can trade as 'Derek Trotter Trading' even though my name is Joe Bloggs. If he is a limited company trading under another name then his letterhead must say what that limited company name is. If he is a sole trader then service must be to his known address. iI he is a limited company then it merely has  to be to his registered company address, as shown on Companies House. 
if no CH listings found then it sounds like her is using 'company' in the sense of 'firm', i.e. not a limited company?
Small claims process will either result in your getting a CCJ in your favour or not: that does not mean he will pay. To enforce payment you may need to use bailiffs to recover assets, if he has any. Easier to recover assets from a sole trader than a limited company, because a sole trader is personally liable.
if you have already issued an LBA then you should follow it through to the letter, as it should have stated that action will commence in x days if your demands are not met.

Confussed12

Once again thanks for all the replies, without going in to too much details. He is trading as a paving contractor with a company name, and definitely not registered with companies house, his registered address is just a local building and not his home address, when I searched this address it had numerous other companies registered at this address I have seen this before so it looks like he has separated himself from his home address i believe you can pay a fee to register at places like this. He provided me with a written quote and a 5 yr guarantee but this is worthless, I'm pretty happy with the small claims process but the only thing stopping me going through with it is am i throwing good money after bad as I believe it will be approx £400 for papers, another £300 to attend court and I've had several quotes for experts surveys ranging between £700 to £1100. So approx £1400 or more just to get through the process, I know I get award my fees back if I win but not the survey costs. Basically from my dealings so far I dont think he's the type to pay, he is definitely not willing to even visit my home to discuss my issues, I know he makes money. Also he isnt the most savoury type but I have paid him nearly £10k for a poor job. I worry I take him to court an win and get nothing but I suppose you hear this all the time on here. It's a dilemma I suppose I'll have to make a decision on. 

Ectophile

You need to very clear who you are suing in court.  Get it wrong, and you will have wasted a lot of time and money.

Look carefully at any paperwork you have from him.  There may be a trading name, but that's only a name.  What you are looking for is any company registration number.  If there is no number, you sue him personally.  He cannot "fold" himself and get out of liability that way.  If there is a number, look that up on the Companies House web site.

It makes no difference if there are other companies at the address you've been given.  You can't sue other random companies, just because they share an address.

tacpot12

Your quotes for expert reports seem quite expensive. I would have expected the cost to be around £500. You might need to shop around to find the right expert. 

You can save money by representing yourself in court, but if you have home insurance, you should check whether you have legal expenses cover. If you have this cover, then your insurer should be able to offer a lot of advice and support and may even represent you in court.