Small Claims Court

[Mark R]

Hello all,

I wonder if some of you experienced folk could give me advice on issuing small claims proceedings. I have a couple of questions I’d like your opinions on.

I have a customer who tells me she has paid an invoice by cheque, I can’t find evidence that the cheque was either received or banked. I have asked her to confirm the date funds left her account but she is unwilling to do say saying she ‘doesn’t have time to check her bank statements’. There is always a chance I’ve had been paid (although I doubt I have). She is not entering into any further discussion regarding the matter and my only option seems to make a claim against her. If I do so and she subsequently proves she’s paid where do I stand? Her unwillingness to assist in locating payment would have at that stage left me out of pocket. Can I mention this unwillingness in the details of the claim?

There is one more customer I wish to make a claim against, however I don’t believe they think I will go this route. I have used MCOL in the past and was successful on both occasions, with the claims being decided by a judge. How would the court view me providing the defendant with copies of court documentation from my previous claims to prove my intent (I’d black out any personal details of previous defendants)? The aim of doing this would be to try and avoid county court action but I’d not want jeopardise my claim if this could be seen as threatening and be used against me.

Yours,

Mark

 

[smallclaimsassistance]

There is always a chance I’ve had been paid (although I doubt I have).

Not good enough. If you are certain she hasn't paid, go ahead. If you consider it possible that you may have received payment, decide not to check sufficiently to confirm or rule out payment, proceed with legal action and it is subsequently found that you had received payment, you could be ordered to pay legal costs on the basis of unreasonable behaviour.

How would the court view me providing the defendant with copies of court documentation from my previous claims to prove my intent

Irrelevant. This proves nothing. The fact that you have litigated before and perhaps won before, does not prove that you would or could do either again. If you want to make such a threat, I suggest you draft the court papers against him, and send him the draft papers. This does show that you're prepared to take the next step, and may avoid litigation. It doesn't always work, but it's worked for me in the past, and it could help here.

Dean

 

[Mark R]

Thanks Dean,

I really appreciate your advice.

Mark

 

[parkingandsecurity]

I personally disagree with both of Dean's responses.

If you write to customer 1 and state that having checked you are unable to trace any funds from them and therefore kindly request that she does check her bank and provide you with details - indeed maybe offer her a %discount on her next order for the inconvenience - If she hasnt paid you will not loose as you will end up going to court - If she has paid and shows it you can apologise AND maybe retain her with the discount.

If you do this and she refused to provide payment details then i would contend that both her conduct was unreasonable and indeed one of the biggest court principals she has not mitigated her own losses - if she paid and could have easily proved it then thats her look out.

With showing judgements it is very effective - especially in my industry where everyone and their dog spouts the usual "you can't do anything about it you never take anyone to court" rhetoric. It will of course be individual to each case but it would have the potential to be persuasive to the customers.

 

[smallclaimsassistance]

If you write to customer 1 and state that having checked you are unable to trace any funds from them

He didn't say he couldn't trace their payment. He said

There is always a chance I’ve had been paid (although I doubt I have).

This implies that with a thorough check, he will be able to confirm either way. There is never any justification for asking someone to confirm something you should be able to ascertain from your own records. There is, AFTER you have checked, and have confirmed that they have NOT paid.

Also,

If you write to customer 1 and state that having checked you are unable to trace any funds from them

- he says he has already done this. She refused....

I have asked her to confirm the date funds left her account but she is unwilling to do say saying she ‘doesn’t have time to check her bank statements’.

So, given that he concedes that he may have received the payment, and the fact that he has already asked her to check, and she refused to do so, asking her to do what she has already refused to do, is unlikely to achieve the required result.

Furthermore -

indeed one of the biggest court principals she has not mitigated her own losses - if she paid and could have easily proved it then thats her look out.

That is not what "mitigation of loss" means, and indeed mitigation of loss is not relevant here (she has no loss!).

Finally, you may be right, and in this individual case, maybe someone may be persuaded to cooperate if the OP sends them a copy of documents from a completely unrelated law suit they took against another defendant in the past. I personally can't see it however and having worked in this industry for over 30 years, I have picked up a few ideas about what tends to work and what doesn't. I wouldn't waste my time doing so.

Dean