small claim wrong defendant

[islandgirl]

Hi all - friend of my son has received a court claim for just over £200 relating to goods sold (private sale) not being as expected. The feature the buyer expected was not present but was not claimed to be present in the description. I am sure I will be back for more info (I have made many successful claims but not defended one so this is new and I am trying to help this person). I am trying to find out if a LBA was actually sent. In the meantime, the defendant's name is correct on the claim but the address on the claim is his work address (where the item was collected only - no other link to the sale - also incorrectly spelled) and not his actual address and the ltd company where this person works is named as part of the address but has no link whatsoever to the claim. Should he try to get it struck out or is it best to make these points as part of the defence later? Many thanks!

[atticus]

Did the claimant know the defendant's residential address?

[islandgirl]

I do not believe so hence the papers were served at his workplace where the item was picked up and named the ltd company he works for as part of the address

[R0b]

I would be inclined to tell your son's friend to write to the claimant and explain that the claim form has been served incorrectly because the address it was sent to was his workplace address, and the sale was a private one between two individuals.

I would then invite the claimant to make an application to amend the claimant's address (at their expense) and your son's friend should provide an address for service. Give them a very short window of 7 days otherwise he should make an application to strike out the claim and/or to amend the service address and seek a costs order against the claimant. Your son's friend could try to put the frighteners on the claimant by providing a rough estimate of the costs that would be incurred. Some along the following lines would not be unreasonable:

£275 application fee
1 day's salary having to take annual leave to attend court
travel costs (if applicable)
costs preparing the application/witness statement circa 4-6 hours work at £19 per hour for the litigant in person rate.

Your son's friend could round off by saying that the claim is hopeless and it's likely the costs incurred will outweigh the cost being claimed, but he is willing to not take this further and claim any costs if the claimant agrees to discontinue the claim and walk away.

NB if your son's friend decides to allow the work address as a place of service, it may cause him problems further down the line and/or potential issues with his employer so I would not recommend it.

[islandgirl]

Thank you for advice so far. Son's friend wants to defend and is writing a defence and will mention the errors as the first 2 points and stress that he did not apply for the case to be struck out to avoid wasting court time.
One question - the claimant has a very poor reputation and has let us say a colourful past to be ashamed of including court appearances for harassment and violence easily found in the press online
Son's friend would like to bring in bad character - any reason why not?
Interestingly he has the same item he is complaining about for sale...at the same price he paid!
Any thoughts welcome...

[R0b]

To be honest, it's a bit contradictory to complain in the defence that the claim form was not correctly served due to the incorrect address, only to then continue to allow the address to be on record for the purposes of moving forward with proceedings. I'm sure the judge will have little sympathy on that one, so if your son's friend is choosing not to make an application to rectify the address now, then I don't see any point in making it an argument in the defence.

I would also reiterate the point I made previously about running into issues further down the line, such as if your son's friend loses the case, the claimant has the employer's address to take enforcement action such as bailiffs and as it would be a commercial premise, bailiffs have the power to force entry on first visit. Each to their own.

One question - the claimant has a very poor reputation and has let us say a colourful past to be ashamed of including court appearances for
harassment and violence easily found in the press online

Son's friend would like to bring in bad character - any reason why not?

My immediate thoughts would be, the claimant may have a chequered past but how is that relevant to the case in hand? Unless it is relevant, I probably wouldn't bother because I don't think a judge will make much of it unless it's relevant and also it doesn't look good for your son's friend as he will come across as trying to point score unnecessarily and some judges don't particularly like that.

If anything, it shouldn't be in the defence but in the witness statement, perhaps to attack the credibility of the claimant, but the defence should simply address the allegations raised in the particulars of claim.

[islandgirl]

Thank you Rob much appreciated and wise words. I think the defendant will be willing to give the correct address with his defence so hopefully there will be no bad feeling or problems later on. He is unused to the court system and cannot really get his head around applying to strike out the claim so it is probably better to go ahead. I agree with you re "bad character" but I think it could be brought up if the thing goes to a hearing which it probably will as he is not credible in any way! Thanks again.

[R0b]

In that case I suggest he follows CPR 6.24 below. Notification by email to the court email address and the claimant on copy should be sufficient - I would reference the relevant CPR provision too as the court may ask for an application to be made with the appropriate fee.

Change of address for service

6.24 Where the address for service of a party changes, that party must give notice in writing of the change as soon as it has taken place to the court and every other party.

[islandgirl]

Thank you - presumably the application would be from the claimant?

[R0b]

An application shouldn't be necessary, just notification but the court staff may take the assumption that an application is necessary when it is not. If one was necessary, it can be the claimant or the defendant. IF the claimant refuses to make one, your son's friend could make it and seek costs of the application caused by the claimant's negligence and failure to update.

[islandgirl]

Thank you Rob. I honestly think all this will be beyond his ability / knowledge. I do not know him really well but am just giving some general pointers through my son (good job I am, I hasten to add!). Really appreciate your very helpful knowledge and advice and will of course pass it on. I think it more likely he will put it as the first points in his defence and see what happens. The claim is entirely without merit from what I can see.