Small claim -recorded letter

[tali]

I 'm overdue a large refund from travel agent.I have sent emails(they responded to 1 email assuring of refund) and made several phone calls.It has been 3 months

Given this is a unreasonable time i now wish to pursue thru small claims court.

Do i still have to send them letter by recorded delivery giving them a 10 day limit?

[honeybee13]

Hello and welcome to CAG.

 

I'll move this thread to the legal forum for you and leave a short term redirect from here for you to follow.

 

My best, HB

[havinastella]

Yes, give them 14 days, this will be deemed as fair.

[tali]

Thanks , does it have to addressed simply to the company , or do i have to include the names of directors aswell ?

[steampowered]

Details about what the letter is supposed to contain are available at Annex A here: http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct#IDAVZA2

 

Best to address your letter to the company, and mark for the attention of the General Manager

[tali]

Couple of questions to clarify

Can i actually claim any compensation at this stage such as the 8% interest -or is that only once court proceedings start?

Or what if company pays refund on my letter request- can i still claim compensation thru small claims ?

Does the final day deadline have to be at end of business hours at say 5.30pm?

What if company pays whilst proceedings are been issued? -are they liable for my court costs?

My other great concern is that company will respond - but merely use this to simply stall and waste time(as they have done this before repeatedly).What if they say they will pay- but some time after deadline? is my deadline date non negotiable ?

[steampowered]

Yes, you can ask for interest at this stage (and should calculate it if necessary).

 

Otherwise, a common tactic is to say that you only asking for the primary amount if it is paid by a certain date but will claim interest and costs in addition if it is necessary to start court proceedings.

 

I think an application of common sense is called for with the timelines. If there is a genuine reason to grant an extension, then grant it. If it is simply a delaying tactic, then go ahead and issue proceedings. Make it clear what your position is in the letter.

[Ganymede]

You need to issue against the company and include the full company name in the court documents.

[Riz0]

Make sure the letter you send now is compliant with the Practice Direction on Pre-Action Conduct. (Google it, Appendix A will tell you what a "Letter of Claim" or "Letter before Claim" must include).

 

Make it very clear and stick to headings. Some will not be relevant. Include your invoices/refer to your previous requests for a refund.

 

As they have not complied in the past, explain that you will issue proceedings without further notice unless a satisfactory response is received within 14 days. Refer them to Paragraph 4 PDPAC and the sanctions a court may impose if they do not follow it.

 

This does mean that they can request an extension of a further 14 days (I think?). However, given their past conduct you may have reasonable ground to refuse. This is something that you will have to decide for yourself. If a judge later thinks that you have been unreasonable you can get penalised sometimes. As you are a litigant in person and their past conduct will be taken into account, it is unlikely. Something that you should be aware of nonetheless.

 

As you are probably aware a lot of travel companies operate on very tight margins. Is there any inclination that they are struggling financially?

 

Now, I'm not sure if I'm allowed to suggest this, but here goes anyway. After you have sent the LBC, it may be worth giving them a call and saying that you will a) report them to the industry watchdog or whatever that was setup recently after many travel agents went bust; and b) you will name and shame them on the internet/local paper/whatever you think is effective... people are concerned about leaving deposits with travel agents already - they won't want their business harmed.

 

I don't think there is anything wrong at all with doing the above based on what you have said. It is not defamatory and it is not malicious falsehood.

 

Good luck anyway.

[tali]

The idiots at Post Office have delayed my letter.-it was sent by 1st class post and today is deadline and it has not been delivered.

Just worried travel agent might use delayed letter as excuse.However, i will still pursue from tomorrow - as over 3 months have passed, well in excess of reasonable time i say

I really think the police should be involved in this -they will claim it is civil matter and are rather arbitary on these matters.Can anyone clarify?

Edited September 25, 2013 by honeybee13
Pejorative word.

[steampowered]

You haven't given any details about the nature of your case. But generally speaking getting a refund from a business is an entirely civil matter. Unless you think some specific criminal offence has been committed I can't see any reason why the police would get involved.

 

I don't really understand the point you are making about the letter. Under the Pre-Action Protocol you are supposed to give them 14 days from sending a letter before action. It shouldn't take more than a day or two for first class post to arrive.

[tali]

What happened was i paid (as he instructed me )Travel agent full amount to "hold seats " by bank transfer as it was holiday season and seats can go quickly.

The price went up and i decided not to book seats.

Travel agent later told me it would 6 weeks for refund.After that time passed i was given 6 other dates guaranteeing refund.

I was only given 1 reason for delay - that they were awaiting refund cheque from Emirates -they insisted i phone them as proof.I did and Emirates have no record of my details

I have checked and found this Travel agent has CCJ action already against them.They are not ABTA members but do belong to ATOL ("nothing to do with us mate")

Police action - i read in local paper of mortgage broker who was jailed for taking deposit from potential buyers and sellling property to someone else AND then refusing to refund potential buyers.Had mortgage broker refunded then there probably would not have been any court case

As for recorded letter i have tracked it online and phoned Post Office -it is not showing it has been signed for but

was posted at on 11/09/13 and is being progressed through our network for delivery.

So Travel agent will get my Pre-Action Protocol letter after my deadline

[steampowered]

The point about the mortgage broker is fraud. The criminal aspect relates to the fraudulent intent of the broker when he received the money, not about the subsequent refund. It would only be criminal if the retailer took your money knowing at the time he took the money that he would never provide the service.

 

Given the length of time you have been waiting, and the fact that this estate agent appears to be failing to pay other debts, I personally would be tempted to issue court proceedings immediately without bothering to wait for the LBA. The Pre-Action Protocol is a set of guidelines not strict rules, ideally you should follow them but they may be departed from when it is reasonable to do so.

 

It sounds very unusual that a first class letter has taken so long to arrive. I wonder if it is a problem with the tracking system. If in any doubt just send another letter - or even drop it through the letterbox personally (or just send as an email if you have an email address).

[tali]

CAB are saying send another letter- can't say i agree

If i email Travel agent he wil probably use this as another delay tactic and fake another refund date- he has had more than enough time and chances

Oct 1st is 15day POffice delivery deadline- but then how much "extra time " do i give Travel Agent from them receiving letter?(i don't think he deserves 1 second extra tbh)

[steampowered]

You basically have three choices:

• wait for the original letter
  
• send another letter giving him 14 days
  
• issue proceedings immediately.
  

Take your pick!

[Riz0]

Steampowered - what about a Statutory Demand?

 

The debt is undisputed. Court proceedings can be lengthy and lead to a judge just saying the obvious - that the money is payable to the OP. If they are insolvent or can't afford to repay, you'd rather find out sooner than later.

 

It doesn't mean you go ahead with a winding up petition necessarily because it is a expensive procedure that requires some experience. But if they don't take the stat demand seriously, you can probably be sure that issuing proceedings won't lead to payment.

 

A CCJ isn;t worth anything if you can't take enforcement action.

[steampowered]

SD is certainly an option.

 

Personally I think it is easier and cheaper to do a small claim than go through with a winding up petition, plus there is less risk of being ordered to pay the other side's legal costs if it all goes wrong, but Op can take his pick. If the travel agent has physical premises it should be straightforward for the op to enforce a CCJ through using bailiffs if necessary.

[tali]

Travel Agent seem to be quite active on website and facebook account

I get feeling they are a " won't pay" rather than " can't pay"

Edited September 28, 2013 by tali

[tali]

I sent letter to registered office (which is those business addresses that have lots of companies listed)- trouble is they are not listing on Royal Mail database , yet those details are on Companies House.

Trouble is Small claims will (try to)serve papers to that address -so what is procedure now ? as i guess it will be delayed as i will have to get them re sent to the Trading addresses ?.(the company is website and facebook active)

If we assume company do not recieve papers - i assume that is their problem and responsibility - and they cannot claim a valid reason for not recieving papers? and court will enforce action at notified trading address ?

Edited October 11, 2013 by tali

[steampowered]

Legally the CPR allows you to serve a company at any of these places: 'Principal office of the corporation; or any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim'.

 

Serving the claim form on the registered office is good service. However, if the registered office is an accountant employed to deal with the paperwork, I don't think there is any harm sending a copy to the place of business with a short cover letter saying something 'please find enclosed a copy of a claim form served on your registered office'.

 

The risk here is that even if the claim form is validly served, if the company never responds and you end up with default judgment, later it can still apply to have the default judgment set aside on the grounds that they never received the claim form. This causes delay. If you think they might play silly buggers ideally you should try and get some sort of evidence that the claim form was received.

[tali]

Thanks , part of me is thinking" let sleeping dogs lie" and after deadline inform court of their trading adresses - as i will need this if i am to receive refund .I'm pretty certain that even if they had recieved papers they would have ignored them(although i appreciate a court will not take this into account)

My fear is if i inform court of new address for service -it will cause further delay

Trader has changed registered address 3 times this year (is this cause for alarm?).They changed address last on Sept 13.(although at that time there was no threat of small claim from me )

[steampowered]

You don't have to inform the court. As far as the court is concerned the registered office is a valid address for serving proceedings and there is no need for the court to re-serve.

 

What I am suggesting, is that you send them a separate letter with a photocopy of the claim form and particulars of claim. It isn't necessary, it is just a way of being doubly-sure they receive the papers to reduce the chance of any application to set aside default judgment being successful.

 

Change of registered address could mean anything really, it is unusual but it might just be a change of accountant.

[SuperVillain]

You have the travel agent's email so I would scan a copy of your first LBA. And write a further one giving him 7 days to pay in full or proceedings will be issued without further notice to him. Put a delivery and read receipt on the email too.

 

Then in 7 days if he hasn't paid just issue. Issue against the company at their registered office as this is good service under the CPR and crack on with default judgment if proceedings aren't responded to. Like steampowered said, follow this with a copy of proceedings scanned and sent to him by email, with a brief covering letter confirming that proceedings will be served by the court at their registered office. If you eventually get default judgment and they try to get it aside at a later date they will have to demonstrate to the court that they had a reasonable prospect of defending the claim.

 

I'd be hesitant to go down the stat demand route as the next logical step after the 21 day deadline is a winding up petition, which are costly, so there's a chance the company may see this as an empty threat. Added to that, not sure how much your deposit was but winding up petition can only be started when a company owes more than £750 - again indicative of an empty threat.

[tali]

OK thanks.

On another note .I have email from trader several months back - should i select Judgment by Admission ? or is default somehow an easier option ?

 

 

"Dear Sir

we have received your email for the refund and we are still chasing up with your funds but we assure you that it will be transferred back to you as soon as possible and will keep you posted regarding the updates"

 

Thanks

[steampowered]

That is not an admission within the legal meaning of the word. You still have to proceed through the normal route.

 

Did you issue proceedings yet?