Taking trader to court - help / advice with particulars of claim needed pls

[pringles001]

Hi there,

Has anyone had the chance to look at my post above, dated 11th Feb at all please? Would appreciate your comments and thoughts...

Thank you

[R0b]

Hi sorry,

Really busy at the moment and I didn't see this as I don't think my notifications are working. Will try and have a look at your post and reply with some comments.

[R0b]

Hi

answering your questions in the same order

a) Personal Representative and Executor is one and the same thing but I would probably go with executor of the estate. Maybe, if I were doing this I would probably set it out like this

....

In the Estate of XY (Deceased) - - - > centre this on the page

Mrs XXX (as executor of the deceased) - - - -> this one on a new line


b) I've never dealt with probate claims before so I can't give you a concrete answer but the general rule under the Civil Procedure Rules is that attaching documents to the particulars of claim is not called for except for example where you have a written contract. I see no harm attaching the grant of probate to the POC and probably avoids any contention whether you are the executor, but it is your call.

c) As you are the named claimant on the POC you should try stick to Claimant/Defendant throughout unless there is a good reason to deviate. For example, if you want to refer to the deceased then say the deceased - do not refer to the deceased as the estate. For example, the deceased reported the car as being faulty.

d) Same point as above. You are telling a factual story so if the defendant has failed to disclose to you the location of the vehicle then say that e.g. The Defendant failed to provide the Claimant with details of where the vehicle is currently located. There is no need to refer to the estate and I don't think that is the correct term since the estate is the deceased's belongings and are not capable of writing to or interacting with the defendant.

e) See above points.

f) Working out the interest is not necessary right now so I wouldn't bother, as it is the court's discretion but have something ready if it gets to the hearing stage. It can get complicated because a court can award pre-judgment and post-judgment interest and the judge can award whatever rate it sees fit up to 8% per annum. As a general rule, interest would start to accrue when the cause of action (the loss) first came about.

On your final point, yes you are correct that the court will disregard the interest being claimed but that may not always happen in practice (another good reason not to add interest at this time to your POC). The court may still choose to allocate the claim outside the small claims track based on the other factors. Most of the time when they see the amount claimed it usually goes to the small claims track but if it doesn't, you will have either have to provide an explanation in the directions questionnaire as to why the fast track is not the right track or make an application to the court to transfer it to the small claims track at an additional cost, though the fee is reduced if you could get the defendant to agree the transfer by consent order.