Small Claims - CPR and ADR

**jaguarsuk** · 9th August 2018, 15:54:PM

Originally posted by JCE View Post

Hi everyone,

a couple of quick questions surrounding CPR requirements for service of documents (Letter before Claim and response) before starting proceedings in the Small Claims/ County Court.

Two separate LBA were sent to the other party (company) (one by email for compensation in the context of a statory offence which is not covered by CPR) and a second one by recorded delivery (for breach of contract) and including the mandatory offer for ADR as required by the CPR.

The company has now responded by a deadlock letter whilst ignoring to provide the documents that were requested in the LBA sent by recorded delivery.

The deadlock letter was not served by post rather than just made available for download from their servers including an email notification.

Would anyone please state the requirements for service of documents - as far as I am aware according to postal legistlation documents are only accepted as served on the other party if one can prove they have been sent, ideally by recorded delivery?

Does a server up/download of the company's deadlock letter satisfy their service of a response in the context of County Court proceedings - i.e. would they successfully be able to rely on having served the document on me?

Further - given their failure to comply with the request for documents as well as most likely not having served their response in accordance with the CPR, would that allow for starting proceedings directly rather than having to waste time going through an Ombudsman without the claim being struck out in the County Court?

Many thanks

By virtue of the fact you have served upon them via email it is reasonable of them to expect that you will accept service by email unless specifically stated to the contrary in your LBA.

Going to the Ombudsman should be your preferred route to resolution as opposed to "having to waste time" because it's free and there's no risk to you of losing then being hit with a costs order. Equally if the ombudsman rules in your favour an you have to go to court it'll strengthen your claim.

**JCE** · 9th August 2018, 18:38:PM

Originally posted by jaguarsuk View Post

By virtue of the fact you have served upon them via email it is reasonable of them to expect that you will accept service by email unless specifically stated to the contrary in your LBA.

Going to the Ombudsman should be your preferred route to resolution as opposed to "having to waste time" because it's free and there's no risk to you of losing then being hit with a costs order. Equally if the ombudsman rules in your favour an you have to go to court it'll strengthen your claim.

Part of the claim is a discrimination claim which would be time-limited to 6 months after the event. Hence it would likely be too late by the time the Ombudsman makes a decision. Besides discrimination claims are not covered by services-related Ombudsman rulings as far as I am aware.

Only the personal injury / discrimination related claim has been sent by email as no pre-action protocol exists (this view re missing pre-action protocol is supported by a solicitor).

The breach of contract Letter before Claim has been sent by recorded mail in accordance with the CPR pre-action protocol and as stated the other party responded to that (or both, in a convoluted way) by email and failed to provide the requested documents - hence the above question if failure to comply with the pre-action protocol allows for starting proceedings without the need to consider ADR?

Further as far as I am aware the Small Claims procedure does not allow for cost orders to be made i.e. each side bears their own costs (except for possession proceedings - which is not applicable in this instance). -

If there are any exceptions to this, please point towards and quote the relevant CPR-sections!

From past experience with Ombudsman procedures I can say they are fairly useless - which is equally supported across various ADRs here:

https://www.moneysavingexpert.com/ne...mbudsman-farce

https://images6.moneysavingexpert.co...nteractive.pdf

**jaguarsuk** · 10th August 2018, 07:56:AM

Originally posted by JCE View Post

Part of the claim is a discrimination claim which would be time-limited to 6 months after the event. Hence it would likely be too late by the time the Ombudsman makes a decision. Besides discrimination claims are not covered by services-related Ombudsman rulings as far as I am aware.

Only the personal injury / discrimination related claim has been sent by email as no pre-action protocol exists (this view re missing pre-action protocol is supported by a solicitor).

The breach of contract Letter before Claim has been sent by recorded mail in accordance with the CPR pre-action protocol and as stated the other party responded to that (or both, in a convoluted way) by email and failed to provide the requested documents - hence the above question if failure to comply with the pre-action protocol allows for starting proceedings without the need to consider ADR?

Further as far as I am aware the Small Claims procedure does not allow for cost orders to be made i.e. each side bears their own costs (except for possession proceedings - which is not applicable in this instance). -

If there are any exceptions to this, please point towards and quote the relevant CPR-sections!

From past experience with Ombudsman procedures I can say they are fairly useless - which is equally supported across various ADRs here:

https://www.moneysavingexpert.com/ne...mbudsman-farce

https://images6.moneysavingexpert.co...nteractive.pdf

Whilst PDPAP says that all parties should consider ADR at all times, it doesn't mean that you have to engage in it before issuing a claim. You can make the offer, but by virtue of the fact they aren't providing the documents what would ADR achieve? If they won't engage at this stage they won't engage in ADR.

If you want to issue a claim then you can once the 30 days from your LBA has expired or an unsatisfactory response to it has been received. You should have included the consequences of those scenarios in your LBA, so it should come as no surprise to the defendant.

The small claims track has limited costs burden for claim below £10,000 unless a party behaves unreasonable in proceedings and falls foul of CPR 27.14, but even then whole costs wouldn't be ordered.

If the claim is above £10,000 and in the multi or fast track there are costs implications for the party losing.

**JCE** · 16th August 2018, 14:19:PM

Originally posted by jaguarsuk View Post

Whilst PDPAP says that all parties should consider ADR at all times, it doesn't mean that you have to engage in it before issuing a claim. You can make the offer, but by virtue of the fact they aren't providing the documents what would ADR achieve? If they won't engage at this stage they won't engage in ADR.

If you want to issue a claim then you can once the 30 days from your LBA has expired or an unsatisfactory response to it has been received. You should have included the consequences of those scenarios in your LBA, so it should come as no surprise to the defendant.

It is well below 10k and it has been brought to my attention that the other side (company) having refunded a fraction of the outstanding payment substantiates that they admit liability.

Please can someone point me in the direction of an up to date Particulars of Claim (POC) template for breach of contract (Services, not goods), preferably in Word format, Html, PDF or similar without having to type it out again.

Also - when does it require a separate POC - only when there isn't enough space on the N1 form and what are the rules again for submitting the POC after submitting the N1 claim form - is it 14 days?

If submitting a separate POC, what has to be put down on the N1 form to clarify that a separate POC will follow?

Thanks very much.

**jaguarsuk** · 16th August 2018, 14:28:PM

Originally posted by JCE View Post

It is well below 10k and it has been brought to my attention that the other side (company) having refunded a fraction of the outstanding payment substantiates that they admit liability.

Please can someone point me in the direction of an up to date Particulars of Claim (POC) template for breach of contract (Services, not goods), preferably in Word format, Html, PDF or similar without having to type it out again.

Also - when does it require a separate POC - only when there isn't enough space on the N1 form and what are the rules again for submitting the POC after submitting the N1 claim form - is it 14 days?

If submitting a separate POC, what has to be put down on the N1 form to clarify that a separate POC will follow?

Thanks very much.

There isn't really a template to point at as it's rare that claims would be so identical one could be produced. You need to set out the parties, the background (what contract was entered into for what, what constituted the breach, what part of the contract it broke) and then what sum is claimed.

Due to the limited space available it's best to draft separate PoC as something of this nature is likely to be complex and have to refer to specific parts of terms, plus legal breaches. There's no chance you'll get it all in the N1 on MCOL.

Yes, within 14 days of issue of the claim a detailed PoC should be served on all other parties and and the court along with a certificate of service filed with the court.

ON MCOL there is a box to tick that details a further detailed PoC will be served.

Small Claims - CPR and ADR