Need help making a claim in the small claims court

[committeddad]

I want to make a claim in the small claims court against a McKenzie friend who gave me wrong advice and did not carry out the work I instructed him to do. But it is 'only' £700 so it will be difficult to hire a solicitor who will likely charge me that just to look at the papers. Can anybody, in the know, let me know if they can give me advice on this and help me prepare the form?
Thanks

[R0b]

Hello

You are going to need to give us more information than just he gave you the wrong advice if you want to make a claim. As a minimum some questions need to be answered:

1. Was there a contractual relationship between you and the MF? If so, was this in writing or verbally?
a. In terms of the contract, what was agreed that the MF would do?
b. How much did you pay him, was this the £700 or is that the sum you have lost in court or something else?
c. Did the MF at any point tell you what his skills or qualifications were?
d. Do you have any evidence to back up the above? If so, what do you have.

2. Was the MF acting through a company or some other form of business or is he acting in his personal capacity?

[des8]

Presumably this was a professional McKenzie Friend a nd you are looking to sue for professional negligence following the Troy v lucas &Rusz case.

CPR 27 appendix A gives brief summary of what info the court requires for breach of duty caseshttps://www.justice.gov.uk/courts/pr...rt27/pd_part27

This will give you a starting point.
Suggest you post up more information if you want more help

[theenquirer]

Hello,

Thanks for the replies. I was afraid of putting too much revealing information here but I am collecting the information and posting it shortly (without giving personal details)

[theenquirer]

Hello

You are going to need to give us more information than just he gave you the wrong advice if you want to make a claim. As a minimum some questions need to be answered:

1. Was there a contractual relationship between you and the MF? If so, was this in writing or verbally?
a. In terms of the contract, what was agreed that the MF would do?
b. How much did you pay him, was this the £700 or is that the sum you have lost in court or something else?
c. Did the MF at any point tell you what his skills or qualifications were?
d. Do you have any evidence to back up the above? If so, what do you have.

2. Was the MF acting through a company or some other form of business or is he acting in his personal capacity?

Coming back with this

[theenquirer]

Presumably this was a professional McKenzie Friend a nd you are looking to sue for professional negligence following the Troy v lucas &Rusz case.

CPR 27 appendix A gives brief summary of what info the court requires for breach of duty caseshttps://www.justice.gov.uk/courts/pr...rt27/pd_part27

This will give you a starting point.
Suggest you post up more information if you want more help

In terms of negligence, I would say that the worst part is how he advised me to drop the case and then spent several billable hours arguing with me instead of doing the job. As it happened, the judge, in the next two hearings, gave all kinds of orders for experts, solicitors and other people to be brought into the case to write reports for the court and the case continues. The judge agreed about my concerns.
If I had followed the (unrequested) advice by the MF, and dropped the case, I would not have got all the things that the judge ordered and I would be 'in the street' with no chance of pursuing my claim

[theenquirer]

Hello

You are going to need to give us more information than just he gave you the wrong advice if you want to make a claim. As a minimum some questions need to be answered:

1. Was there a contractual relationship between you and the MF? If so, was this in writing or verbally?
a. In terms of the contract, what was agreed that the MF would do?
b. How much did you pay him, was this the £700 or is that the sum you have lost in court or something else?
c. Did the MF at any point tell you what his skills or qualifications were?
d. Do you have any evidence to back up the above? If so, what do you have.

2. Was the MF acting through a company or some other form of business or is he acting in his personal capacity?

Hello,

Thanks for the reply. I will have to give a bit more 'revealing' information as otherwise it will not make much sense:

1. There was no written contract but he charged me £90 for a telephone meeting where I explained all about my case and told him:

- That there was a hearing coming and that I would hire a barrister.


- That I needed help, in support of the work the barrister would do:

A- to help me put together the evidence I had to give it to the barrister for him to use. There was already a bundle so we could add to it and give it the barrister.

B- I needed urgent advice in relation to a critical mental health situation that one of my children was in. I needed to find a way to take urgent action such as an urgent application.

I also sent the MF a written version of my story. The last paragraph again said what I wanted (NOT advice in terms of the feasibility of my claim).

a- The MF would do items A and B above


b- The MF then suggested that I purchased a 'package' worth £750 for the work I wanted and asked me to pay in advance. I did and paid. This person charges like a solicitor adding the time on the activities.

Part of the fee was for the MF to read my documents. However, his spending time reading my documents (which he probably did) was of no use if he was not going to do the work he needed to read the documents for.

In the end he told me: OK, I will do what you ask me (only then), I am only giving advice (of the type I did not ask for), but then he had spent almost all the time arguing and he told me there were something like 2 hours left of his 'package' so clearly that was not enough time to do the job and I also realised that somebody who is not willing to do the job would not do it right if I had paid for the extra time (probably another $600 or so). I also found that I could not work with somebody who continued to do the things I told him were causing me distress (you have no chance, etc.)


I was running out of time and I was getting nowhere with this person, so in my desperation I hired a solicitor to do the job. It it was £1200.00

Two important things that caused a great deal of trouble:

- He misled me saying there was nothing wrong my child, that he had reached the age to make his own decisions and there was nothing I could do. That because he was 16 the court would exclude him from proceedings.


- He told me I would lose the case in the next hearing. The judge would drop my claim and I would have achieved nothing for the cost of the proceedings. He told me to withdraw my application and beg for concessions from the people who have my child.


So then he spent several days arguing with me about these things he wanted me to do. I said I did not want to pay for a Monty Python type of argument and only for him doing the work I asked. I also said he was causing me a great deal of distress with his aggressive way of pushing me to do what he wanted as I had serious anxiety about my child's mental condition. He went on until I told him I would go to someone else.


As it happened, in the hearing all these things happened:


- It was revealed that my child has, indeed, serious mental health problems that were being concealed by the people who have him.


- The judge ordered a guardian for the child.

- The judge finally made my child a party to the proceedings, despite his age.


- The guardian, in turn, employed a solicitor for my child and involved the local authority. The solicitor put in an urgent application to the court, to deal with the urgent matter of my child's mental health.

On the hearing for this application, the judge ordered no less than:

- A psychologist to analyse all the people involved with my child (including myself)

- A psychiatrist for my child

- A social worker to share Parental Responsibility with me and oversee attention to my child.

- The guardian to prepare a Section 7 report

- The Social worker to prepare a section 37 report and assist me to help my child.

- A new directions hearing, for all these people to present their reports and for the court to decide what to do next.

Now, just imagine the disaster if I had withdrawn my application, as the MF advised me to. My child would be trapped with mental health problems, no help and being at great risk he would harm himself (he is also getting abuse from the people he is with and I showed the MF the child's statements about it).

c) The MF told me the usual story about a lot of experience in cases relating to children. I think he has something about qualifications in his website.


d) I have written evidence in the form of the above documents I mention and several emails arguing with the MF trying to get him to do his job and stop misleading me and causing me distress.

2- The MF has a company but it's only him. He has a website saying what he can do.

There are no regulatory bodies mentioned in it.

My conclusion is: The MF is in a similar situation as the people who have my child and sympathised with them. He was actually trying to help them by getting me out of the way.

[theenquirer]

By the way, the McKenzie friend replied to my formal complaint offering to reimburse £90, only for the time he had not used but I said I would seek advice about taking him to court for the lot.
What about my wasted time and the anxiety too.

[pt2537]

just reading through this thread, wondering if prof neg is the way forward, or whether actually you would be better pursuing substandard services under the consumer rights act 2015.

Negligence is tricky to prove, and if you go on to win your claim then you could recover the fees expended as party of your case, thus would have no loss. Under the CRA in principle one would be able to recover fees if the person providing the service failed to do so with reasonable care and skilll.

That was my first thoughts although i havent read through the thread fully and have a mountain of papers to look though this morning so may not be devoting all the time needed to this reply

[theenquirer]

just reading through this thread, wondering if prof neg is the way forward, or whether actually you would be better pursuing substandard services under the consumer rights act 2015.

Negligence is tricky to prove, and if you go on to win your claim then you could recover the fees expended as party of your case, thus would have no loss. Under the CRA in principle one would be able to recover fees if the person providing the service failed to do so with reasonable care and skilll.

That was my first thoughts although i havent read through the thread fully and have a mountain of papers to look though this morning so may not be devoting all the time needed to this reply

Hello,

Thanks for the reply. My initial thought was to go for CRA (small claims court?) because it is not thousands of pounds I am claiming and the damage to my child did not happen because of the MF as I did not follow his advice.
I also think this is what applies: the person providing the service failed to do so with reasonable care and skill.

However, you are the expert so I await your further reply.

[R0b]

I have to agree with PT, I think going down the professional negligence route could be tricky, not least that most claims of this type are generally considered to be complex. Assuming this claim you would be making against the MF, you'd want it allocated to the small claims track to avoid legal costs, but professional negligence cases are not ordinarily considered to fall into this bracket for their complexity, possible use of expert witnesses etc. Still, just because the MF advised you to discontinue would not automatically mean that he was negligent in a professional capacity.

So in this case, I think perhaps a straight forward breach of contract case would be a sensible view and your claim would probably go something like this:

1. You found MF (via his website?) and paid him an initial fee of £90 for a telephone consultation to discuss your ongoing legal case.

2. Following that consultation you and MF entered into an oral agreement that MF would do A&B at a cost of £750, which was duly paid by (bank transfer?).

3. The contract was a consumer-business relationship and the Consumer Rights Act 2015 applied to the contract between you and MF. In particular, section 49 required the MF to perform the services with reasonable skill and care, and section 52 further required MF to complete the services within a reasonable time.

4. Presumably you explained to MF that you were on a deadline to get the work completed and prepared and therefore time was of the essence.

5. You would then go on to say that MF was in breach of contract and go on to list the reasons as to how he came to be in breach. For example, you repeatedly requested MF to do the work as instructed but he did not and, against your instructions, persistently tried to persuade you to discontinue your application. Because of this, there was little time left to complete the work and you had no choice but to instruct a solicitor at a cost of £1,200 to prepare and finish the work.

6. It sounds like MF did give you advice (right or wrong) so he could argue that at least he performed some of the services, but not all. So you could ask possibly ask that a proportion of the money paid should be returned in addition to the £1,200. If the MF had listened to your instructions and did the work, you would not have had to instruct a solicitor to finish it off.

The only issue that is not clear is this 'package' that was offered. It sounds like the MF offered you a package of hours at a fixed price of £750 rather than a fixed fee for the work? Is this correct? If so, that's probably how you should frame it.

Obviously the above is just a very basic example of a breach of contract but it is up to you how you want to bring your claim. If the MF website claimed to have particular skill in family or mental health law or whatever it is you were seeking advice about, which you relied on then you may want to refer to that also, as you can then argue that the MF should be held to that standard.

[theenquirer]

I have to agree with PT,..........

Hello,

Thank you, this is very interesting.


Yes the package was for 10 hours of work, with the possibility that chargeable hours could be added if I wanted more work done. This person did give me about 1 hour's worth of useful advice but most of the time went like this:

me: My child does not communicate with me anymore. The school has told me he does not go to school at all and the school mental health worker has been to see him. I am worried he had a breakdown and has mental health problems. What to do?

MF: Nothing, your child has reached the age where he can decide whether he talks to you. Leave it.

more discussion. 1 hour MF's time gone.

MF: you are going to lose on the next hearing, withdraw the application.

me: no, I am sure of what I am doing, I want us to work on this and you are causing me distress with your talk.


MF: No point, etc etc. 2/3 more hours if his time arguing about it.

So, after 8/9 hours I had almost nothing.