|
I have received Court documents including
a Claim Form & Particulars of Claim telling me I am being
sued in the County Court, what should I do?
You must think and act quickly. There are many people who
simply ignore the papers hoping that the matter will go away
or leave things to the last minute. If you do this you risk
a judgement being entered against you, paying costs to your
opponent and incurring greater costs yourself in sorting the
matter out.
Amongst the documents you will receive notes and the forms
for Reply, called an "Acknowledgment of Service"
form giving you the option to deny the claim, or admit some
or all of it. You only have 14 days to send this form to the
Court. If you intend to defend some or all of the claim you
should return the Acknowledgment of Service to the Court within
the 14 days and you will then be allowed 28 days from the
date the papers were served on you to file a Defence. A solicitor
may need this time to property prepare your Defence so do
not delay in seeking advice. Some people will try to deal
with the matter themselves until they get a notice of a court
hearing and then seek legal advice. This is fine if your case
is small or straightforward however bear in mind that getting
specialist advice after you have filed your own defence may
create difficulties later on.
Before you see a solicitor assemble all your relevant documents
in an orderly fashion and if possible prepare a detailed statement
about the case.
I am owed money and I want to recover
it from the debtor. What can I do?
The first step is to instruct us to write a letter of claim
to the debtor giving a time limit for payment after which
legal steps may follow. Sometimes this is sufficient to get
the debtor to pay. After an initial letter before action a
Claim Form is issued at the County Court with Particulars
of Claim that set out the grounds of your claim. A court fee
is payable depending on the value of your claim ranging from
£30 to £120 for Claims up to £5,000 and
£250 to £800 from claims over £5,000. Further
court fees are also payable during the case.
In some contractual disputes between businesses the parties
may have committed themselves to arbitration in which case
a court claim cannot be issued.
Will the letter before action result in
payment?
Sometimes. Some individuals or companies do not take solicitor
letters seriously in the knowledge that people often threaten
legal action but do not take it. However, the fact that you
have taken the trouble to consult a solicitor does suggest
to your debtor that you are serious about pursuing them. Quite
often credit control departments of many companies send several
chasing letter threatening to instruct solicitor or threatening
legal proceedings is no payment is made and then simply do
nothing or continue with further letters. If you have sent
a final demand it should be final. Giving further chances
to the debtor, if the debtor has not bothered to request time,
is only suggesting that you or your company is a soft touch
and it is not surprising that some debtors take advantage
of the situation.
Can I claim back my legal fees from my
opponent if I win my case ?
The usual rule is that the looser pays the winner's costs,
however
a) if the claim is for less than £5,000 then the matter
will be heard on the Small Claims Track and costs are not
usually awarded. Therefore unless your opponent has behaved
unreasonable, you can only recover the Court fees and fixed
solicitor's costs (which are minimum amounts of less than
£100).
b) the Court has a discretion so costs orders are not automatic
in all cases. In practice it is rare for the winner to recover
all of their costs from the looser.
How much will it cost me to go to Court
to claim monies owed?
A number of factors will influence the level of costs you
incur many of which are uncertain at the start of a case and
therefore impossible to quote a fixed fee.
The complexity of the case, value of the claim, the number
of witnesses, amount of documentation involved and the extent
to which you wish a solicitor to act for you.
In claims for less than £5,000 we do not recommend you
instruct a solicitor for the whole case as you will not recover
your legal costs. It is however sensible in all but the simplest
of debt claims to use a solicitor to prepare your initial
documents for the claim and advise you once your opponent
has filed a Defence or perhaps instruct a solicitor/barrister
to represent you at the final trial hearing.
In claim over £5,000 most people will usually instruct
a solicitor as the costs are recoverable if you win.
Are any cases not worth fighting ?
You may have to take a commercial view of your case. If you
are suing for a small sum of £100 and have to take time
off work to attend a hearing or arrange child care it may
not be worth your while even if you are likely to win. In
the small claims court litigants are encouraged to claim or
defend without the assistance of legal representation and
it is often a personal decision as to whether the case is
worth fighting.
What happens if I win and the opponent
does not pay me ?
The Court will often allow the losing party to pay the claim
within a certain timescale. If the opponent does not pay at
all then we can take steps to enforce the Court judgment eg
instruct bailiffs to seize their property and sell it to recover
what is owing or a court order for payment out of their wages.
Sometimes it is possible to recover what is owed by applying
for an order for sale of the opponent's home. These remedies
are not always successful and it is not worthwhile to take
enforcement action and incur further fees in doing so if the
opponent is unemployed and has no assets of value. It is important
to consider the opponents financial status before you incur
costs in suing a party.
How long will it take for there to be a
final trial ?
It can take several months or up to a year for a final hearing.
In complex cases it can take even longer. It also depends
in which court the case is issued as some courts are busier
than others.
In cases where the opponent has not bothered to file a Defence
then Judgement can be entered against him/her without a court
hearing. It is also possible to dispose of cases earlier by
making applications eg if the opponent has not filed a proper
defence and has not shown any reasonable and arguable defence
then it may be possible to strike out the defence and enter
summary judgement (ie judgement without trial).
How long do I have to sue a party?
If your claim is based on breach of contract you have six
years from the date of the breach to commence legal proceedings.
You have 3 years from the date of an accident to bring an
injury claim.
Does a contract need to be in writing
to be enforceable?
Contrary to popular belief, no. The existence of a written
contract merely proves the existence of the contract whereas
a contract by word of mouth will be difficult to prove if
it is disputed.
Once I sign a contract can I get out
of it?
The general rule is no a person is bound once they sign.
Agreements which are regulated under the Consumer Credit Act
1974 however can be cancelled within a specified period of
time (cooling off period). In very rare situations a party
can escape being bound by a contract is there is a fundamental
mistake as to the nature of the agreement.
If I have relied on a statement made
by the other party to enter the contract and this turns out
to be untrue can I get out of the contract?
This is what is known as "misrepresentation" -
where a party has made a statement which is false in order
to entice or induce the other party to enter the contract.
Remedies are available which depend on whether the statement
(ie the misrepresentation ) was made fraudulently, negligently
or innocently. Sometimes it is possible to have the contract
set aside and to recover compensation.
Is it ever possible to challenge disclaimers
and exclusion clauses in the small print of agreements?
Yes. The Unfair Contract Terms Act 1977 contains detailed
provisions as to the circumstances in which such clauses can
be challenged. Some exclusion clauses are completely unenforceable
whilst others are only enforceable if the Court is persuaded
that they are reasonable in all the circumstances. Consumers
who are acting in an individual capacity and not in a business
capacity have further protection from unfair terms under the
Unfair Terms in Consumer Contracts Regulations 1994.
What is meant by "negligence"?
The law imposes upon an individual a duty to take reasonable
care and where there has been a failure in taking care up
to the required level of reasonableness that the law expects
then negligence would have occurred. Often the duty of care
is imposed on certain professionals e.g lawyers, accountants,
doctors, surgeons, all of whom have to carry out their duties
with reasonable care and skill. However it is not restricted
to professional of anyone providing a service. Everyone is
subject to the duty to take reasonable care to avoid injury
that is foreseeable in certain situations. For example, a
motorist may be liable in negligence if injury occurs as a
result of a road accident which would be reasonably foreseeable
as occurring if the motorist drove in excess of the speed
limit.
What is the difference between slander
and libel?
A defamatory statement is made when one person makes an untrue
statement about a third party which is likely to damage the
third party's reputation or disparage him/her in some way.
If that statement is in writing or on tape, or film it is
libel. If the statement is only a verbal one then it is slander.
|
