UK power network taking me to small claims court.

[R0b]

I don't think the court is going to get hung up on the fact that the PoC states that an invoice was raised, it's clear that the claimant is alleging negligence and therefore as you said, it would fall to be compensation for the damage caused. Nothing in the PoC suggests any cause of action for a debt or breach of contract and so the use of the word invoice is for all intents and purposes irrelevant.

Happy to be corrected but S.69 of the County Courts Act covers pre-judgment interest at a rate the the court sees fit whereas the CC Order 1991 relates to post-judgment interest (I don't think I need to check this but I will anyway for my own sake). So, going back to my point and referring to the CoA case you mention, yes interest is awarded to compensate for being kept out of the money, which is clearly the case here because payment for the cost of the damage remains outstanding.

Edit: So I see, the PoC states 8% which I am guessing what you referring to, but it nonetheless doesn't prevent the claimant from claiming interest as per my above point. The court may very well add 8% interest at its discretion, but the reality is that something between 2% and 4% generally suffices, although many people don't tend to argue the interest point.

[ostell]

Is the 8% not defined somewhere in the code of practise?

[MIKE770]

8% is claimable and has been for years,

[R0b]

8% is the statutory interest rate for High Court claims post-judgment and has been fixed at 8% for over 20 years.

The County Courts Act 1984 actually says this:-

Subject to rules of court, in proceedings (whenever instituted) before the county court for the recovery of a debt or damages there may be included in any sum for which judgment is given simple interest, at such rate as the court thinks fit or as may be prescribed, on all or any part of the debt or damages in respect of which judgment is given, or payment is made before judgment, for all or any part of the period between the date when the cause of action arose and--

(a)in the case of any sum paid before judgment, the date of the payment; and

(b)in the case of the sum for which judgment is given, the date of the judgment.

In fact, the Senior Courts Act 1981 has similar wording to the County Courts Act, that's to say pre-judgment interest is at a rate as the court thinks fit.

County Courts (Interest on Judgment Debts) Order 1991 relates to interest accruing whilst the debt remains unsatisfied (post-judgment) and the general rule is that, subject to the exceptions listed in the Order, the interest rate shall be the same as the High Court rate i.e. 8%.

Claimants have adopted the position of seeking 8% as that being the judgment debt rate but that doesn't mean to say you will get it. In fact, there's plenty of case law on pre-judgment interest ranging from 1% plus base rate to 2% or 3%. The thing is, it is uncommon for defendants and particularly litigants in person to challenge the interest rate and therefore that rate is applied.

So I would agree with efpom on the basis that a claim of 8% would be punitive as opposed to compensating for not being paid the money. In this case, it would be sensible to challenge the interest rate in the defence arguing that the CC Act does not refer to 8% interest and that such a rate is punitive.

[efpom]

If I was the defendant I would be asking the claimant for a copy of all documents described in the POC as a matte of urgency.

That would include a copy of the invoice and by implication, a copy of the Letter before Claim, if of course, the defendant does not already have those.

I would also be asking what pre-action protocol the claimant believes the defendant has not complied with, if that is not mentioned in the Letter before Claim

If those are, or become available, it might be worthwhile posting those on here.

[yahoozee147]

Hi hope everyone is well. Can I request the evidence of what pre action protocol the claimant followed in my defence statement? Or should I contact the claimant directly to request copies of every pre action letters they claimed to have sent as per following protocol before I submit my defence statement..

Thanks

[yahoozee147]

And another question. Can I argue the interest rate in my defence statement now. Or does it have to be later. Every suggestion will be very much appricated.

[efpom]

Your position is this:

You are the defendant in proceedings.
Those proceedings are a claim in negligence.
You say that you did not do the damage that occurred and whoever did that damage was not working under your control or direction.

You MUST file a defence before the deadline set by the court for doing so. You say that this deadline is the 16th April,

If you do not file a defence at all, or file it out of time, the claimant will obtain judgment in default.

My advice, for what it’s worth, is that you draft your defence, taking into account, the advice you have received on this board, or elsewhere

If you retain a solicitor to act for you, be aware that as this claim has been allocated to the small claims track, and absent unreasonable conduct by the claimant, you will not be able to recover your costs

If you decide not to retain a solicitor, then post up your draft defence, in the hope that the contributors to this board will comment upon it.

[efpom]

First, a couple of legal definitions

Negligence - In English law, an individual may owe a duty of care to another, to ensure that they do not suffer any unreasonable harm or loss. If such a duty is found to be breached, a legal liability is imposed upon the tortfeasor to compensate the victim for any losses they incur.

Vicarious liability is a complex are of law. the current law stipulates (a) that there must be a relationship between the defendant and the wrongdoer, and that (b) a connection between that relationship and the wrongdoer’s act or default, such as to make it just that the defendant should be held legally responsible to the claimant for the consequences of the wrongdoer’s conduct.

Negligence, as a legal concept, cuts both ways. The cable owner says that you had a duty of care to make a diligent search for it’s cable, that you did not do a diligent search, that because you did not do that diligent search it’s cable was damaged, and so you owe them the cost of repair.

But I say that the cable owner also owes you a duty of care to warn you that this cable existed, at least in the area of the works, and that it was likely that if you proceeded with the works without actually establishing the actual location, both vertically and horizontally, it was probable a) that the cable would be damaged, and b) that there was a risk of electrocution to the person carrying out the work.

It is no answer to simply assert that there is a one way duty of care on you to follow the recipe for locating cables described in the HSE guidance, no matter how long it takes and how much money it costs to do so.

But the claimant in his particulars of claim does not make it clear that he is suing on the basis of vicarious liability, a concept which the claimant introduced, in his writing to you. It is possible that the claimant’s case is, in fact, based on joint enterprise, meaning that because you collaborated in the joint enterprise of erecting the fence you are jointly and severally liable for the damage.

On this last, you need to be clear about the scope of your involvement. For example, did you contribute to the cost of the fence, or was your only involvement to give a ‘no objection’ to the owner of the property?

[yahoozee147]

My only involvement was that me and my house mate took permission from the council to have a front garden fence. He did the fence whilst I was at work. And when I came back from work and no electricity I called them to report the power loss. But I believe they trying to pin it on me because I called them and was responding to them. Lesson learnt lol. And the cable it self wasn't deep into the ground. My dog will easily get to it and chew it.

[yahoozee147]

Oh and another thing I realised now is that on the POC the claimant added Solicitor Costs £80.00 as-well as court fees. I did not think they could charge solicitor fee through small claims court. Am I wrong or right?

[CLL1]

Oh and another thing I realised now is that on the POC the claimant added Solicitor Costs £80.00 as-well as court fees. I did not think they could charge solicitor fee through small claims court. Am I wrong or right?

The £80.00 falls under something called "fixed costs", and that is recoverable, even on the small claims track, when a claim is brought by a lawyer.

[efpom]

Fixed costs on the small claims track do NOT include solicitor costs - see CPR 27.14

[yahoozee147]

Happy easter everyone. So I got back from work and received the attached documents from the claimant today. It says witness TBC. Does that mean they are allowed to bring a witness at a later stage during the process? Am guessing it was probably the engineers who came out on that night.

Can I also ask a family member who was present on that night as a witness that I did not damage the cable or will that be conflict of interest?

And I looked at my credit file today and noticed a company called UK search limited did a search on my name. When i looked up the company online they are debt trace companies which I believe the claimant has used to trace me to my new address before send the POC. My question is can this UK search company do a search on my personal details without me consenting to them or would this be a data breach because I did not give them or anyone consent to run a check on my credit file.

Any answer will be appreciated.

Regards.

[Amethyst]

You can have your wife to write her account in a witness statement and submit that to court at the same time you do your own. In the N180 witnesses box you'd just put 2 ( yourself and your wife ) and she would need to attend the hearing with you. It wouldn't be a conflict of interest unless she also worked for the claimant.

Are you still in touch with your housemate ? Were they a joint tenant of the property at the time ?

Witnesses on their part - should be themselves, the claimant, plus probably whoever was involved in the issues at the property - the court may yet order expert witnesses and the claimant might not yet know if they want/need to include additional witnesses- it is something that will be dealt with when the court issues it's directions after both n180s have been filed and served.

The search does seem likely to be a tracing search - and yes they are able to do a soft search on a credit file. It doesn't affect your credit rating.

Also put your local court on your N180 if it isn't the same as the claimants.