Where to post my query

[Mccmat95]

Hey everyone - what a great place this is - had no idea it existed.

as you can see new around here - i posted a thread yesterday but it occured to me that it might be in the wrong place - where's best to post?

Just a summary of my rather long new thread (which i now realised was too long!!)

I encountered issues with a surveyor's report and incurred £300 in out-of-pocket expenses. The surveying company declined reimbursement despite my attempts to resolve the matter amicably through a detailed email. While I didn't inform them of my intention to take legal action I sought clarification on their internal complaints process and next steps as i remained unhappy with the outcome, which they ignored.

Subsequently, I initiated a small claims case for £150 (and emailed them on the date of raising, letting them know i'd done so and that i'm still keen to settle without court) - no reply to this

I won by default. I havent yet been paid. The company then invoiced me for £9,950 (2 months after the judgment), alleging a breach of contract for not using their arbitration and for unfounded legal action that could have been resolved without the courts.

While I'm contemplating consulting a solicitor I'm cautious due to potential costs, particularly within the small claims track as i dont think i'd get my costs back. I've not actually heard from their solicitor (if they have one) or been served any legal papers but they have chased payment of the invoice.

I guess i was wondering if in my shoes would people wait until they hear from a sol or futher action is taken or would they pay for a sol now to look it over and give me advice. Below is my original thread

https://legalbeagles.info/forums/for...my-court-claim

My other question is it a legal requirment to inform the company im taking them to court if im claiming as an idividual (appreciate its always important to do so regardless) or is it enough to set out my concens in writing explaining what my resolution is and why, and then if the resolution isnt favourable clairify the next steps to resolve (and allowing time for any response), and if nothing, court action.

[Pezza54]

Hi
Terms in a consumer contract that specifically exclude or restrict the consumer's right to take legal action may be regarded as unfair under the Unfair Terms in Unfair Terms in Consumer Contracts Regulations 1999 and will not be legally binding. A court is therefore unlikely to decide you breached your contract with the surveying company when you didn't follow their procedure
The surveying company and their lawyer are probably aware of these regulations and I believe it is unlikely the company will instigate a court claim so my advice is not to appoint a solicitor yet
The surveyor had ample opportunity to defend your claim and could have applied promptly to have the CCJ set aside. The company could have asked for your consent which it sounds as if you would have given it.
You should have complied with pre-action protocols and sent the surveyor a letter before action

[Mccmat95]

Thanks so much for your reply.

Could i please ask a question. I did a bit of research on pre-action protocol and a lot of it was written in language i didnt quite understand, but from what i could gather the pre-action protocol didnt apply to me or my claim (as an individual taking claiming against a company)- the GOV site i refered to referenced here

Clearly i've completely missed the point - but key learn for me is ALWAYS sent the pre action letter -

It says "Steps before issuing a claim at court
6. Where there is a relevant pre-action protocol, the parties should comply with that protocol before commencing proceedings. Where there is no relevant pre-action protocol, the parties should exchange correspondence and information to comply with the objectives in paragraph 3"

Paragraph 3

Objectives of pre-action conduct and protocols
3. Before commencing proceedings, the court will expect the parties to have exchanged sufficient information to—

(a) understand each other’s position;
(b) make decisions about how to proceed;
(c) try to settle the issues without proceedings;
(d) consider a form of Alternative Dispute Resolution (ADR) to assist with settlement;
(e) support the efficient management of those proceedings; and
(f) reduce the costs of resolving the dispute.

[Pezza54]

I am not sure why you thought that as an individual claiming against a company the Practice Direction Pre-action Conduct and Protocols did not apply to your claim. Did you confuse CRA with CPR?
CPR Part 2 defines a claimant and defendant as a person
There are dedicated protocols for professional negligence and building contract claims
Interestingly, there is a free mediation service offered for disputes on the small claims track, but it takes place after a claim has been started and much of the forms, PoC, defence etc have been filed
Had you realised the amount of work required for a court claim would you have submitted one for £150?
It does seem like a sledgehammer to crack a nut

[Mccmat95]

clearly I misunderstood about the pre action letter

You are completely right it’s a lot of work and then subsequent shed loads of worry for me now this has happened, I think it’s a lesson learned. Not that it’s an excuse or a defence but I was going through a tough time when I filed the claim lots, of other unrelated factors and I don’t think I was thinking rationally about the objectives, work, stress that this course of action would take. I’m normally quite a rational, don’t act out of impulse sort person

[R0b]

To add to what Pezza has already said, any form of legal proceedings requires the claimant party to send to the defendant(s) a letter before action. There are different protocols depending on the claim being made. For example, the personal injury protocols may require different information or evidence to the protocols around defamation. If there is no specific protocol listed in the Civil Procedure Rules then then the fallback protocol is the Practice Direction on Pre-Action Conduct and Protocols.

Have you responded back to the company yet? This sounds very much like a retaliatory claim which, although nothing unlawful about bringing retaliatory claims that are genuine and valid, if they are found not to be then they could find themselves in hot water with an adverse costs order.

Maybe it's me but the sum being claimed by the company is £9,950 which is just shy of the limit for claims being allocated to the small claims track, where legal costs are not recoverable unless there has been unreasonable conduct or behaviour (this is typically a high bar to meet). That may be deliberate or that may be a coincidence, I don't know.

I would be inclined to write a robust response to the company containing the following points:

- Their alleged breach of contract appears to be retaliatory in relation to a judgment you have obtained against them, and you reserve the right to bring their letter and yours to the attention of the courts where appropriate.

- As Pezza mentioned, if this is a consumer contract then the Consumer Rights Act 2015 applies and the CRA prohibits any term which seeks or attempts to contract out of the legislation. Forcing a consumer to agree to arbitration would restrict or otherwise prevent the consumer from issuing legal proceedings and also taking certain enforcement action against the company in the event of a successful judgment (which you have obtained). Equally, if the arbitration clause is buried in the small print of the terms and conditions, you could argue that this is also an unfair contract term, especially if the same obligation doesn't apply to the company who can issue legal proceedings against you instead of arbitration.

Whilst not reading the contract terms is an excuse to get out of a contract, forcing a consumer into arbitration is a bit of an unusual clause and should therefore have been brought to your attention more prominently. Just as a point of note, arbitration is an alternative to legal proceedings where the decision is legally binding on the parties. If the contract required you to commit to mediation before legal proceedings, I don't think that would be viewed as an unfair term or contrary to the CRA, because your right to pursue legal proceedings remains intact, which should be a last resort and the courts favour mediation as an attempt to resolve differences before proceedings are issued.

- I think their point about resolving matters without the need for court is complete rubbish. You have already reached out to them to and disclosed your issues, which they rejected. You say you also tried to obtain their complaints procedure which were ignored by them. These actions or inactions does not seem to me that the company wanted to resolve things without going to court, but rather they maybe thought you would just go away and not bother them. Because you took it further and they failed to respond to the claim (for whatever reason), they are now unhappy they have a judgment owing you money, hence the retaliatory claim for breach of contract.

- If they haven't broken down the damages being claimed, ask them to do that and explain how they arrived at this amount.

- Summarise that you do not believe the claim has no legs which is retaliatory in nature and you do not intend to pay them the sum of money they are claiming. If they believe otherwise, they must sent a letter before action outlining their claim in more detail along with a breakdown of the damages they are claiming and how they have arrived at that amount.

The company will either issue a claim if they genuinely believe a breach has occurred or they won't in which case you know it is a bluff. Obviously if you instruct a solicitor to defend you, that can get quite costly and if the claim is allocated to the small claims track which will be the starting point, you won't be getting your costs back. Those costs might arrive close to the amount being claimed if it goes all the way, so think about it carefully before you embark down that path. You may, however, do a bit of bluffing yourself and use a solicitor to respond to their letter/email and that may be enough to make it go away, or they could continue responding and you need to decide whether to continue istructing them to send a response.

[Mccmat95]

Thanks so much for all of this information. They have chased me twice for payment. And I have gone back and forth explaining some of those points. But you have given me much more information which I will pop into a reply to them if they chase again. You are absolutely right though they had every chance to rely to my claim as I told them it was coming - and it does feel retaliatory- you have made me feel a bit better

one point to mentioned and really sorry I’ve mixed up adjudication and arbitration- they insist adjudication must be sought before any legal action or pre action letter sent - an adjudicator that they choose and prescribe- a very important mix up apologies

[R0b]

Adjudication is simply another word for someone to make a decision. Arbitration is a form of an alternative dispute resolution (ADR) to legal proceedings. There are different methods, some legally binding such as arbitration and others not binding such as mediation.

Arbitration involves instructing a neutral third party to decide on the dispute. Usually, these arbitrators are experts in their field and quite often you will find in B2B contracts rather than having to rely on a judge in court who is unlikely to be an expert. The decision of an arbitrator becomes legally binding on both parties so I find it strange that they are saying adjudication must be sought before legal action. Arbitration is usually in lieu of going to court unless you wish to appeal the decision.

If they are suggesting that they have the right to select the adjudicator in arbitration proceedings by virtue of the contract terms, that to my mind could also be construed as an unfair contract term against the consumer. They could simply select one of their friends or someone they are close to and they may have an element of bias to award the decision in their favour.

Can't really say much more than that without seeing the full terms and conditions of the contract as well as the contents of those responses by the company. If this was a B2B contract, you probably wouldn't have a leg to stand on but if you are acting as a consumer, the law provides more rights and protections for consumers than businesses.

My final point would be that it sounds like they don't know what they are talking about or they only have half a clue. Personally, I wouldn't want to be going back and forth playing ping pong correspondence, I would set out my stall, tell them their clause is inapplicable as a consumer and I wouldn't be engaging any further unless they send a letter before action. They cannot force you to submit to arbitration without a court order, so there isn't much they can do if you refuse. I would also tell them in the meantime, they have 7 or 14 days t pay up the £150 otherwise you will look at taking enforcement action without further notice which may increase their liability. If they don't pay after this period, send in the bailiffs or look at other enforcement methods to recover your money and unless they try to set aside the default judgment, you have every right to enforce.

[Mccmat95]

You are absolutely right in that there's no need for this back and forth which is all thats been happening -

And while not so articuately as you've put it, but none the less i've already said most of your points, and they do have even less knowledge of the law that i, which is pretty shocking.

I am a consumer, and i felt that by insisting that adjuication must be with a particular firm isnt fair, or even inisisting thats the actioni take - isnt right

And by their conditions advising that if court action or even a pre action letter is sent they before adjucation they can sue me for breach of contract is pretty scare, and im glad im not the only one who thinks this is unfair.

I think at this stage, if they contact me again, and it's not a pre action letter, i shall ignore if, but at least i will be armed with some more points to underline more clearly if they do take it any further - thanks so much for taking the time out of you days to give me your perspective - its helped me process things much more clearly.