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JimLawyer
JimLawyer, Solicitor
Category: Property Law
Satisfied Customers: 15493
Experience:  Senior Associate Solicitor
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Dear, I have recently asked you about four separate issues

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For Joshua onlyDear *****,I have recently asked you about four separate issues regards ***** ***** at the flat.You have considered four separate elements
- Electrical system interference
- Missing / stolen items
- Decor damage
- Kitchen damageThe original options open to us appeared to be:-
* RICS….mentioned in the contract for settling disputes during, or indeed after the contract
* Ombudsman….offered by the tenant
* Small claims court
* County courtNow we come to deciding on an appropriate course of action. I think when you first considered that question, you recommended the county court.Now that you’ve looked at the four elements and a total value of dispute of under £10,000, has your view changed as to the most appropriate place for this to be acted on?Is there any requirement for us to go down the route of the RICS mentioned in the contract?Given the value is under £10,000 will the small claims court be the most appropriate and will it be able to deal with the consumer law question you raised with the kitchen query.Is there any benefit to us in going down a particular direction?Which route is likely to be the most effective in terms of getting a positive outcome ?
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Customer: replied 15 days ago.
I am happy to wait for the right professional

Hello, this is Jim and welcome to JustAnswer.

Thank you for the question, I am reviewing the details now and I will aim to resolve it as quickly as possible for you.

Having reviewed this problem then yes, a small claim would be the correct way forwards - you would need to issue a claim at the county court for breach of contract.
However, if there is a way of pursuing ADR (alternative dispute resolution) then it would be wise to pursue that if the other party is also in agreement. As it would be quicker than court action and a defended claim (which would take 9-12 months on average). Not only that, the courts encourage ADR and you do have up to 6 years from the date of the breach to issue the claim under the statute of limitations.
I recommend therefore 1. ADR is attempted - if that fails then 2. issue a small claim.

In order to try and resolve the dispute without having to pursue court action, a formal letter before action should be drafted and sent, to demand payment within 14 days and say that if they do not pay you, you will issue county court proceedings against them.

See attached template as an example of what to say. Please let me know if you cannot see the letter which I have uploaded. You will need to tailor this letter to your situation. The pre action protocol confirms you should send the letter to give the other party a chance to avoid court action and to pay you. The courts encourage compliance with the protocol as it can result in a resolution without having to involve the court.

If you decided to issue a claim, you would then need to register at https://www.moneyclaim.gov.uk/web/mcol/welcome so that you are ready to issue the claim in the event they dispute the claim and do not pay you. The website is very user-friendly and you would not need a lawyer to use the money claim site.

Claims with a value of under £10,000 are classed as a "small claim", so legal costs are generally not recoverable and the matter may be dealt with on paper by a Judge, not at a hearing. This means the parties are on an equal footing, so you don’t need to worry about legal costs if you lost.

A hearing may be necessary if the court thinks that oral evidence is required to dispose of the case.
Here is a user guide for the money claim online site: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1020660/mcol-userguide-eng.pdf

The court will then issue the claim and they will send you "notice of issue". The papers are served on the defendant who then has 14 days to acknowledge the claim - they do this by filling out an acknowledgment of service and they post it to the court. They indicate their intention when they do this, i.e. whether they admit the claim in full or partly, or if they deny the claim. If they want to defend the claim then their defence is due by 28 days from the date the court served them with the papers. The central court processing centre then sends the claim to the defendant's home county court for case management and directions - the directions will give a list of dates which you both must comply with.

If there is no settlement then the claim will be dealt with at a final hearing which takes anything from 9 to 12 months from when you start the claim - longer if the claim is higher value. You can pursue the claim yourself or use a law firm. For the hearing you can use an advocate if you wish, though it's not compulsory. I have details of law firms and advocacy agencies if you would like those. Though in a small claim you won't be able to recover their charges from your opponent. A small claims hearing is easy to do, it's quite informal and no lawyer is required.

You would claim the sum for the loss, the court issue fee (details of the money claim fees are listed here at page 5: EX50 - Civil and Family Court fees) and court interest which is 8% calculated on a daily rate from the date of loss to date of court judgment.

So for example if you were owed £10,000, interest would be £2.20 per day, which you can also claim.

The site allows you to calculate the interest and add it to the claim. If a hearing is required then there is a fee for this too - see page 7 of the previous link for details. Again, that fee is recoverable if you win.

If you win then once you have the CCJ from the court the defendant has 14 days to pay in full. If they do not then it gets registered with the credit agencies after 30 days. You can also enforce the CCJ with the county court bailiffs or transfer the debt to the High Court for a small additional fee assuming the total amount owed is at least £600 and you can use the high court enforcement officers who have greater powers than county court bailiffs. The transfer fee is added on to the debt and payable by the defendant.

There are other enforcement methods which I can help with, including bank account freeze, charging order on their property (and then apply to force a sale), apply to summons them to court for questioning, attachment of earnings order against their employer (if employed), apply to bankrupt them if they are an individual or sole trader and they owe £5,000 or more - all of which can ensure you are actually repaid the money.

You may find they just pay you after receiving the letter before action – hopefully they will want to avoid litigation.

As for your likelihood of winning, in a civil claim you only need to show there was a likely breach of contract - the burden of proof is only 51% or "more likely than not".

(insert their name and address) (insert date)

LETTER BEFORE ACTION

Dear (name),

Re: Claim for (insert sum)

I refer to the above matter. (Insert details of the dispute).

This letter is being sent to you in accordance with the Pre-Action Protocol (“the Protocol”) contained within the Civil Procedure Rules (“CPR”). In particular, I refer you to paragraphs 13 to 16 of the Practice Direction on Pre-Action Conduct and Protocols regarding the Court’s powers to impose sanctions for failing to comply with the provisions of the Protocol.

I therefore put you on notice of my intention to issue county court proceedings against you for my losses should I not receive payment in full by 4 pm on (insert date 14 calendar days).

Should court proceedings be necessary I will claim the court issue fee and statutory interest. Should I succeed in obtaining a judgment, same will be transferred to the High Court for enforcement against you whereby further costs will be added to the judgment sum.

I trust the above will not be necessary and I therefore look forward to hearing from you as a matter of urgency.

Yours sincerely,

(insert name)

I hope this answers the question. If you have any follow up questions then please do let me know.

Many thanks,
Jim

Just a final note that I am free most days and would be happy to assist with any other queries you may have.

Best wishes,

Jim

JimLawyer, Solicitor
Category: Property Law
Satisfied Customers: 15493
Experience: Senior Associate Solicitor
JimLawyer and other Property Law Specialists are ready to help you
Customer: replied 14 days ago.
First class response