Have rules changed for Small Claims?

goodValue

Is the complainant now liable for the defendant's legal costs for the Small Claims Track?
Was this changed because of a large number of badly planned complaints?

I also thought that the six year limit began from the last time the parties were in communication.
I've seen posts that suggests it is from the time the problem first occurred.

A_Geordie

1. Yes you are liable if your conduct is considered to be unreasonable. There is a high bar to reach this threshold. 

2. The rule has been around for decades and is not new. 

3. The 6 year limit has nothing to do with the small claims track. A legal action has a limitation period depending on the type of claim. For breach of contract, it’s 6 years from th date of the breach in question, unless the contract (or the relevant legislation) says otherwise. It has never been the case that the limitation period (that I’m aware of) begins from the last time you were in communication. Using that logic, you could keep communicating and restarting the clock each time which would be absurd.

p00hsticks

A_Geordie said:

 It has never been the case that the limitation period (that I’m aware of) begins from the last time you were in communication. Using that logic, you could keep communicating and restarting the clock each time which would be absurd.

This sounds more like the situation when a debt is owed .where my (limited) understanding is that if the debtor makes a communication acknowledging a debt then the  six year clock for it to be statute barred is reset. 

DullGreyGuy

goodValue said:

Is the complainant now liable for the defendant's legal costs for the Small Claims Track?
Was this changed because of a large number of badly planned complaints?

I also thought that the six year limit began from the last time the parties were in communication.
I've seen posts that suggests it is from the time the problem first occurred.

Generally legal costs are excluded from a Small Track Claim however judges have significant discretion and can make awards against parties that have acted unreasonably and not inline with the CPR. This hasn't changed

The Law of Limitations covers a wide range of subjects with different limits depending on the nature of claim, eg for the tort of negligence resulting in bodily injury the limit is 3 years from the date of knowing. For an adult that would be on the day the injury was incurred for something like a car accident whereas for a minor the date of knowing is their 18th birthday. For something like asbestosis the date of knowing could be decades later than from when the exposure to asbestos fibres were. 

In simple contracts its 6 years from the date of the breach of contract, so if you bought something and it broke after 3 years because it was substandard quality then the breach of contract happened at the point of sale because it was always substandard quality and so you'd have 3 years left to issue

I'm not an expert on those trying to wriggle out of debts on technicalities but yes many here say it's 6 years from when the debt was last acknowledged. In the Consumer Rights section we more typically deal with faulty goods hence its 6 years from date of purchase or bad service in which case its 6 years from when the bad service occured

A_Geordie

p00hsticks said:

This sounds more like the situation when a debt is owed .where my (limited) understanding is that if the debtor makes a communication acknowledging a debt then the  six year clock for it to be statute barred is reset. 

That's correct. Acknowledgment of the debt or incremental monthly payments will restart the clock each time. 

Nothing in the OP's post suggested this is a debt issue which is why I responded the way I did. If it is indeed a debt issue, then your understanding would be right but only in the limited circumstance of the debtor acknowledging the debt.

Any less than "Yes I am liable" or something that implies an acknowledgement such as "Can I set up a payment plan" will not generally be regarded as an acknowledgment. Simply responding to an alleged debt without acknowledging liability will not restart the clock. 

goodValue

Thanks to everyone for giving me further information.
The issue is about a pension company miscalculating my pension when it went into payment.
I don't know if that would be construed as a debt, but I am certain that they owe my money.

It is further complicated by the events after the first occurrence.  I first contacted the financial ombudsman about 7 years ago, but I only got a decision this year.
In the last couple of years, all correspondence has gone through the ombudsman.
So how do I find out what correspondence might have reset the limitation period.
Or is this type of claim subject to a period different to the often quoted 6 years?

eskbanker

FOS would generally be considered to be more sympathetic to consumers than the courts, so if your complaint wasn't upheld by FOS, your prospects at court wouldn't seem particularly promising, but if the issue arose over seven years ago then I fear you may be out of time, despite all the stuff above about resetting clocks in a different situation.

DullGreyGuy

goodValue said:

Thanks to everyone for giving me further information.
The issue is about a pension company miscalculating my pension when it went into payment.
I don't know if that would be construed as a debt, but I am certain that they owe my money.

It is further complicated by the events after the first occurrence.  I first contacted the financial ombudsman about 7 years ago, but I only got a decision this year.
In the last couple of years, all correspondence has gone through the ombudsman.
So how do I find out what correspondence might have reset the limitation period.
Or is this type of claim subject to a period different to the often quoted 6 years?

This wouldn't be comparable to a debt and almost certainly would be considered a simple contract so 6 years from the date of the alleged breach. 

Why has it taken the ombudsman 7 years? Or is this actually a series of different complaints and your counting the 7 as from the first complaint to when you received the ombudsman's decision on the latest one?

Presumably the ombudsman hasn't upheld your complaint hence the questions on the law of limitations? 

7 years is a long time to argue over something thats going to be worth less than £10,000 over the lifetime of the pension... feels more likely that it isn't a Small Track matter if it went to the courts... whilst value is a guideline if something is Small, Fast or Multi Track its really a proxy for the duration of the courts time (less than half a day, less than 2 days or more than 2 days). On the basis your saying its taken 7 years for an ombudsman to come to a decision it doesn't feel something that will be done within a couple of hours at court. Once you get into the higher tracks then the loser does start having to pay for the winners legal bill so more is on the line. 

As others have said, the Ombudsman is guided by the law but bound to find fair outcomes as a consequence they are more consumer leaning than the courts which are bound by the law alone. Very few lose with the ombudsman and then successfully sue.

A_Geordie

Not that I'm a pension expert but I'm curious why the FOS decided to handle a pension matter when the Pensions Ombudsman should be the correct route. I presume the FOS had jurisdiction if it related to a personal pension or a SIPP rather than a workplace pension. 

Personally, I have found the FOS to be rather poor in their decision making but that might be due to the categories of complaints I have put through them. I certainly wouldn't view them as consumer friendly.

Anyway, what I am about to say next is a little complicated and may be beyond the remit of some here with less of a legal experience. Ordinarily, a claim for a breach of contract or debt would be time barred if legal proceedings have not commenced before the 6 year period started. However, there is an exception to this rule when you initiated a non-binding alternative dispute resolution (ADR) process i.e. the FOS and the limitation period expired before the final resolution of that ADR process. In other words, when you have reached the end of the road with the FOS process.

In those circumstances, Section 33B of the Limitation Act 1980 extends the time limits to an addition 8 weeks after the end date of the ADR process. so if the OP has received a final decision by the Ombudsman and there is no further recourse, the 8 week period starts after the date of that final decision being made.

Also I should clarify my earlier position so there is no confusion around acknowledgment. The clock can restart if there is an acknowledgment not just a debt but around liability for any kind of liquidated sum of money for breach of contract, which I believe would also cover the OP's the incorrect sum of money supposedly to be paid into a pension. There are strict formalities so if the OP is looking for any correspondence or communication from the pension company acknowledging liability then it has to be signed and in writing - note the "signed" part is not limited to a physical signature, so a digital signature such as an email signature or a letter with a printed name or digital signature on it should be sufficient to meet that threshold. Only then would the OP be able to argue that the clock has restarted. 

However, given what I have said about Section 33B of the Limitation Act, the OP doesn't need to rely on the clock restarting assuming there still is time to issue a claim (and sending a letter before action first), but they might need to get a move on. 

goodValue

eskbanker said:

FOS would generally be considered to be more sympathetic to consumers than the courts, so if your complaint wasn't upheld by FOS, your prospects at court wouldn't seem particularly promising, but if the issue arose over seven years ago then I fear you may be out of time, despite all the stuff above about resetting clocks in a different situation.

I have found FOS a very unsympathetic organisation.

eskbanker

goodValue said:

eskbanker said:

FOS would generally be considered to be more sympathetic to consumers than the courts, so if your complaint wasn't upheld by FOS, your prospects at court wouldn't seem particularly promising, but if the issue arose over seven years ago then I fear you may be out of time, despite all the stuff above about resetting clocks in a different situation.

I have found FOS a very unsympathetic organisation.

....in which case just imagine what sort of reception you'd get in court!

I'm not saying they're particularly consumer-friendly or responsive, but just that they're not only driven by the letter of the law and take into account what might be considered 'fair' as well, so in general it's easier to 'win' there than in a court of law:

We take into account the law, codes and good practice that applied at the time of the event. We also follow the rules in the Financial Conduct Authority's (FCA) handbookFCA handbook, although we’re operationally independent of the regulator.

We make decisions on the facts and evidence available in each case. Either side can tell us what they remember saying or being told. Written evidence or paperwork from the time is often very helpful. But if it isn’t available, it doesn’t mean we’ll automatically uphold or reject a complaint. The right outcome in one case may not be the right outcome in another as individual circumstances can vary so much. And, the decision we come to on what is fair and reasonable in all the circumstances of the case may be different to what a court would decide applying legal rules. 

https://www.financial-ombudsman.org.uk/who-we-are/make-decisions