Website - treatment as individual in small claims court?

[caseyj]

Hi

My website was named as defendant in a small claim, concerning an online purchase. Website has no legal entity so the defendant name changed to me trading as website. I paid £80 to change the name so that the case can go ahead and asked for the case to be transferred to my local court. Problem here is that the judge changed the name but there is doubt as to whether the case will be transferred. I am a sole trader declaring small income from the website with other income on self assessment form.
Several qualified persons including 2 solicitors have advised me that given the circumstances I should be treated as an individual and the case should be heard at my local County court.
Can anyone confirm with certainty what applies here as the claimants court is the other side of the country. I would be particularly keen to hear from someone who has gone through a similar process.

 

[Legalbeagle]

As you are an individual, you have the right to ask for the case to be transferred. If it isn't on your filing of the defence, then you can ask for it in the allocation questionnaire, or alternatively ask for it in a separate application (which in a small claim can be a simple letter).

 

[caseyj]

Thanks for getting back to me - you have confirmed what 2 solicitors, a legal helpline and several other knowledgable people have said. It also seems to be stated clearly in the Civil Procedural Rules - part 26.2. The problem here is the courts. The claim started at the claimants court with defendant named as my website and papers addressed to the website. I completed the defence in my name and asked for the case to be transferred in the allocation. It was transferred to my local county court but within 4 weeks of the hearing date I got two court order notifications in the post transferring the case back to the claimant's court. No other communication or an option to appeal this decision - paperwork had already been sent out when I called.

I emailed the claimant's court as requested by court staff asking for...
1) the defendant to be changed to validate the case.
2) transfer the case back to my local court.
It took over 5 weeks and a lot of phone calls to get an answer.
Judge quoted CPR part 3.3(4) - he had used his own initiative to reject both of my requests. With less than three weeks to the hearing date(10.00 am) at a court 5 hours drive away I paid £80 and filled out an application(N244) form. I hadn't heard back after more than a week so called the court again. Someone helpful took the application to the judge and then called me back when he had made a decision. The defendant was changed to me trading as website, hearing cancelled but the case to be transferred to another court. The problem is that the proposed court is also local to the claimant and about 5 hours travel away.
None of this is official as told over the phone but I was advised to send an email asking once more for the case to be transferred to my local court. I am waiting for an official letter but at the moment it looks like I have paid £80 to validate a case which in truth has no merit, against me and be further inconvenienced against the guidance of a fairly clear Civil Procedural Rule.
Is there anything more I can do if the case is not transferred to a court
local to me?

 

[Legalbeagle]

Wait for the actual order to come back from the court, just in case it reads differently to that which the court official told you.

Failing that, you will need to make an application to have the case transferred. The form you will need is N244, (which you can get form your local court and then send to the remote court), and on that form you need to set out why you believe the case should be transferred to your local court.

There is a fee to pay for this application, which you will have to ask the judge at the trial to order the defendant to pay you on top of the debt. Recovery of this fee is, however, not guaranteed.

 

[kulture]

The basic problem is that both parties are individuals. As such one is always going to loose out on location. Do not continue to piss the judge off. Earn his sympathy and do the long drive.

 

[caseyj]

Thanks legalbeagle - appreciate your getting back to me. I have still not heard back from the court and as you can see from my second post have already paid one lot of £80 and filled in one N244.

Kulture - I don't think the judge at the claimant's court thinks very well of me anyway which is as good a reason as any to refer to CPR rule 26.2 which says that this case should automatically be heard at the defendants(my) local county court outside of this judges jurisdiction.

 

[arcon5]

If you win the case, will you be able to recover your costs?

 

[caseyj]

Hi arcon5

I think that cost recovery would be difficult - the initial small claim form had 'no fee' handwritten on it which implies that this person is now claiming benefits - some assumption on my part here but even if I win, huge inconvenience for £1 a week.

Without going into much detail the claimant's case has no merit. Defendant was originally a website with no legal entity and claim concerns a guarantee claim after a years use(2 year guarantee). Part returned at manufacturers cost but after dismantling and inspection, no manufacture fault found so no guarantee claim sanctioned. Claimant offered a goodwill payment to cover full part replacement cost anyway. The claimant rejected this and is claiming for the original part cost, courier out and labour cost to fit the part.

Summary judgement, were it possible, or even a cursory glance at the facts of the case would see it dismissed.

 

[caseyj]

For those interested, here is the rule that I am relying on..........
Automatic transfer

26.2

(1) This rule applies to proceedings where -
(a) the claim is for a specified amount of money;

(b) the claim was commenced in a court which is not the defendant's home court;

(c) the claim has not been transferred to another defendant's home court under rule 13.4 (application to set aside(GL) or vary default judgment - procedure) or rule 14.12 (admission - determination of rate of payment by judge); and

(d) the defendant is an individual.


(2) This rule does not apply where the claim was commenced in a specialist list(GL).

(3) Where this rule applies, the court will transfer the proceedings to the defendant's home court when a defence is filed, unless paragraph (4) applies.
(Rule 2.3 defines 'defendant's home court')

(4) Where the claimant notifies the court under rule 15.10 or rule 14.5 that he wishes the proceedings to continue, the court will transfer the proceedings to the defendant's home court when it receives that notification from the claimant.
(Rule 15.10 deals with a claimant's notice where the defence is that money claimed has been paid)
(Rule 14.5 sets out the procedure where the defendant admits part of a claim for a specified amount of money)

(5) Where -
(a) the claim is against two or more defendants with different home courts; and

(b) the defendant whose defence is filed first is an individual,

proceedings are to be transferred under this rule to the home court of that defendant.

(6) The time when a claim is automatically transferred under this rule may be varied by a practice direction in respect of claims issued by the Production Centre.
(Rule 7.10 makes provision for the Production Centre)



The case was initially moved to my local court in line with the rule above but was then transferred back to the claimant's local court. I was not given a chance to defend my right to retain the hearing venu at my local court. I was advised to email the claimant's court and finally after 5 weeks got this response to my request to change the defendant from website to me trading as website and transfer case back to my local court as per CPR 26.2

Response as follows.......
Upon reading a letter from the claimant by email and considering the Defendant's email dated 09 November 2011

IT IS ORDERED THAT
1. The application to transfer the case to XXXXXX County Court is refused.
2. This order was made of the District Judge's own initiative (CPR Part 3.3(4). If you object to the order you must make an application to have it set aside, varied or stayed within 7 days of receiving it. (CPR Part 3.3(5).



A solicitor advised another attempt using an application form N244, with £80 fee. Told on the phone that case withdrawn(hearing date 12/3/12) defendant changed as requested but case moved to another court local to claimant. I sent another email asking for the case to be transferred to my court once again - nothing official received yet to confirm changes. As nothing official received in post and knowing the way this has gone so far, I would not be surprised to hear that the hearing went ahead on the 12th March after all and judgement went against me as I was not present.