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Jenny
Jenny, Solicitor
Category: Law
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Experience:  Qualified Solicitor specialising in Employment Law and general legal matters. Please start your question For Jenny Only
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I wish to pursue a claim against an ex-emplyee whobwas

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I wish to pursue a claim against an ex-emplyee whobwas accidentally overpaid by £880. They acknowledge the overpayment but are unwilling to repay, claiming penitance. I know their name an Ni number but no their current address, does this matter? What are the chances of auccess. The acknoledgement of the money owed is in text message. Also, Can i claim costs?
Assistant: Where are you? It matters because laws vary by location.
Customer: London
Assistant: What steps have you taken so far?
Customer: Given them c 6 months to repay the money. Also knocked £50 off the total. The original amount ourltstanding was 1,280 but they have repaid £409 worth
Assistant: Anything else you want the lawyer to know before I connect you?
Customer: *£400 worth

Hello my name is***** am a solicitor and I am happy to help you today. Have they said why they do not wish to repay?

Is there any way you can find out where they live?

Customer: replied 3 months ago.
I know their old address, but she is refusing to give me their new one.
Customer: replied 3 months ago.
As I mentioned they are claiming pentance (they do not have full-time work)
Customer: replied 3 months ago.
Is their address required?

well that is entirely unhelpful of her.

You do need an address to effectively pursue a claim against someone and that is your main problem. You can serve at their old address but it will not be effective if they do not receive the papers. It may be worth seeing if you can find out the address or engaging a tracing agent.

They have no right to retain the overpayment unless they can show they were unaware of it and have spent it in good faith, which is the case here, so there is no issue with the merits of the claim.

The court is, however, likely to agree to payment terms that she can afford so a more practical approach might be to agree a repayment plan.

Is there anything else I can help you with this evening?

Customer: replied 3 months ago.
how do you mean she spent it in good faith? She claims she did not realise she was overpaid until i highlighted it to her, at which point she had spent the money. She acknowledges the overpayment
Customer: replied 3 months ago.
Also, how can we know if she has received the notice or not?
Customer: replied 3 months ago.
Also, can I claim costs etc of the tracing agent etc?

well that is is 'good faith'. If she can convince a judge that she didn't realise that she was overpaid and has spent it then she does have a defence. Good faith is spending it without knowing it was not rightfully hers.

You can't know whether she has received notice, she will have to demonstrate that she has not.

Yes you can claim fees if you are successful. You have to consider your options and whether it is worth it.

Is there anything else you would like to know?

Customer: replied 3 months ago.
Also, how can we know if she has received the notice or not ?

You won't know , if she doesn't respond to the claim default judgement will be issued. She will have the right to have that overturned if she finds out about it and shows she didn't receive the papers.

Is there anything else you would like to know?

Customer: replied 3 months ago.
Also, my understanding of small claims court is that only certain costs could be reclaimed. A tracing agent would NOT be recoverable, is this correct?
Customer: replied 3 months ago.
what is a default judgement?
Customer: replied 3 months ago.
hello?

Normally fees are not recoverable in the small claims court.

In contract claims you can claim consequential losses, you may be able to argue that the tracing fee is a consequential loss but I am not convinced that this would succeed as an argument.

Default judgement is issued where no defense is submitted automatically.

Is there anything else please?

Customer: replied 3 months ago.
That is helpful, thank you. Yes, a few more questions. Is the judgement against the person connected to their NI number? i.e if she ignores the judgement against her, asking her to pay then what how is traced to her?

No it is the address, the NI number is ***** relevant.

Is there anything else I can help you with?

Customer: replied 3 months ago.
if she has not changed address, but ignores the judgement against her, how is it enforced?

Once judgement is entered then it is in her interests to pay within 30 days otherwise there will be a black mark on her credit file for 6 years.

in the event she does not you can consider enforcement agents through the court but again, given the amount you are owed it may not be a cost effective approach as the cost of enforcement may outweigh your actual loss.

Can I help you with anything else?

Customer: replied 3 months ago.
Can not add the cost of the enforcement to the claim?
Customer: replied 3 months ago.
Also, what are the typical court fees?

No you can't add the cost of enforcement to the claim.

Issue fees for a claim of the amount you are claiming are £60 .

Enforcement fees depend on the type of enforcement you seek but may actually outweigh the value of your claim.

Do you have any further questions please?

Jenny and 3 other Law Specialists are ready to help you
Customer: replied 3 months ago.
That’s everything, thank you

No problem, all the best with it.