Small claims defendant

[Bern2]

Hi all,

 

I have been named as the defendant in a small claims case that I believe to be groundless. It relates to a 2 year old parking accident causing damage to another parked car (unoccupied) which was fully resolved with my insurer at the time.

 

2 years later, and with no prior correspondence, a claim has arrived for damages relating to a week's lost wages even though the settled claim included a substantial hire car charge.

 

I assume that I will get this easily thrown out, but because I now live abroad I am unable to be present to defend myself. Do I have to pay for a solicitor to defend a nuisance claim, or can I request that my written defence be considered by itself?

 

I have a relatively short window to respond, and this is entirely new and unexpected so any advice would be gratefully received.

[maroondevo52]

Hello and Welcome Bern2,

 

I've moved this thread to our General Legal Issues Forum, you should get some help shortly.

 

Regards,

 

Scott.

[SabreSheep]

You might want to type to claimants POC here

[andydd]

You can ask for summary judgement to get it thrown out at an early stage, I believe it can all be done without actually attending hopefully someone else can confirm this or you could possibly claim for travel expenses even under small track rules but not sure if there is a limit.

[BankFodder]

Are you now fully domiciled abroad? How did the papers for this claim reach you.

 

I would suggest that you file a defence

 

1. The claim is denied.
   
2. Any liabilities were fully dealt with by insurers in 2012
   
3. The defendant is no longer domiciled within the jurisdiction of the court
   
4. The claim papers were forwarded to him by his XXXCousinXXX XXRoyal Mail redirectXX
   
5. The defendant is now permanently domiciled in XXXPapua, New guineaXXX and has been since XXXmonth, yearXXX
   
6. The defendant's permanent address is now XXXfull postal addressXXX
   
7. It is requested that the claim should be struck out.
   
8. Any further liability which is alleged by the claimant is properly a matter for insurers
   

I don't think that there is much else you can be expected to do -and I don't think that there is much they can do once this defence is filed.

[Bern2]

You might want to type to claimants POC here

 

 

Hi Sabre,

 

It's a couple of pages and typing it out would be slightly dull. I lived in an apartment block with the usual allocated parking spaces in rows. While reversing at one point I scraped the car on my left (entirely my fault, as it was fully in its space and noone else was around). Fault was admitted, insurance details swapped and their claim was made and settled for car repair and a hire car (£2100 in total, which I thought was high, but I wasn't involved in the settlement process and had no grounds to dispute fault).

 

Two years later, and with no prior correspondence or warning, a county court claim for just under £400 plus court costs arrived at my old address (I'm now living in India, but the estate agent emailled me and my father who lives in the area picked up the mail). The claim is for lost earnings and the POC is a cut and paste of their initial legal letter plus a number of weekly payslips (which average about the claimed amount, so I presume they're claiming for a week's lost wages).

 

I believe my defence will be easy on the following grounds:

 

a) I believe that any claim should have been made through my insurer at the time and not separately to me two years after the claim was settled.

 

b) I believe that by taking and claiming for a hire car throughout the repair process the claimant foregoes the right to claim for a week's lost earnings. What were they using the car for?

 

c) The claimant has given no documentary evidence of loss of earnings. The payslips all predate the accident with the last one being from more than a week before. No letter from their employer confirms lost earnings and there is no payslip from after the event which could be used to calculate a gap in the cumulative earnings for that year.

 

d) No effort was made to settle this privately before a small claim was made. I believe that even when a claim is stronger than this this fact is taken poorly by the judge, and especially in combination with the more than 2 year gap before a claim was made.

 

 

If I were in the UK I would have no concern about defending myself using the above grounds, but my concern is that because I'm no longer in the UK I won't be able to defend myself in person. I could hire a solicitor, but I'd feel extremely bitter about having to do that when the claim is so self-evidently weak and I can't claim back costs.

 

That's why I want to know whether I can request that a defence be requested on the basis of my written evidence without my being present. I could also claim non-jurisdiction as I'm in India, but because the incident happened in the UK and I did still receive the papers I don't want a ccj to be raised in my absence in case I come back in the next few years.

 

Any advice gratefully received!

[Bern2]

Hi Bankfodder. I am fully domiciled abroad, but it's only been 3 months (moved out with work in february). I still have a UK bank account, and the papers reached me when the estate agent got in touch and my dad picked up the mail. I've read that when people aren't planning to come back claiming domicile abroad is possible, but it also looks like filing that as a sole defence risks having a CCJ raised in absentia and on my record thereafter. That's not something I want, especially given that I believe the claim is groundless.

 

Your suggested 8 point plan looks good, and that was roughly my thinking. I just have no experience and so want to check if there's anything additional I should do and whether I'm likely to have a problem defending myself without being present (taking holiday and flying back just for this is not an option, but I could grudgingly hire a solicitor if I thought I absolutely had to).

[BankFodder]

I can't imagine that a court would be prepared to go ahead on the basis of the defence which I have proposed.

[Bern2]

Okay. Great! Really appreciate the advice. There's quite a lot of detail on this forum and the wider internet about how to raise a small claim and some about how to defend it, but there's not much about court procedure. I've been unsure whether once a claim is raised a hearing that I have to attend is a given regardless of the merits of the claim.

 

If weak claims are struck out without a hearing when I put in a proper initial defence then I'm confident that with your proposed defence it won't move forward.

[BankFodder]

By the way - for point 4, I would simply say that that the papers were forwarded to you by an estate agent.

[steampowered]

Have you tried contacting your former insurer at all? Hopefully they should be able to provide you with some form of evidence of settlement or similar.

[Bern2]

Have you tried contacting your former insurer at all? Hopefully they should be able to provide you with some form of evidence of settlement or similar.

 

Hey Steampowered. Yeah, I called them first. Because it's two years later it's going to take them a while to get anything formal over to me unfortunately, but I'm hoping it will be in time. I'm chasing them up again on monday.

 

I know that the claim was settled for £2100 and that that included damage repair and car hire but I don't have the formal documentation to submit yet.

 

I believe that insurance settlements usually include an undertaking by the claimant not to undertake any further action against either insurer or their client but I won't know for sure on that unless I get confirmation from the insurer.

 

Also because car hire was paid, I presume loss of earnings can't also be claimed (at least not for the full week that repairs were undertaken), but again I need to wait to get a fuller breakdown of the claim and the settlement if I can get it in time.

[Ganymede]

Hey Steampowered. Yeah, I called them first. Because it's two years later it's going to take them a while to get anything formal over to me unfortunately, but I'm hoping it will be in time. I'm chasing them up again on monday.

 

I know that the claim was settled for £2100 and that that included damage repair and car hire but I don't have the formal documentation to submit yet.

 

 

Was it a full and final settlement though or not?

 

 

I believe that insurance settlements usually include an undertaking by the claimant not to undertake any further action against either insurer or their client but I won't know for sure on that unless I get confirmation from the insurer.

 

 

No not necessarily. If this head of claim is still outstanding and was never settled then Court proceedings are valid. Pass them to the insurer that dealt with the claim urgently so they can handle it.

 

 

 

Also because car hire was paid, I presume loss of earnings can't also be claimed (at least not for the full week that repairs were undertaken), but again I need to wait to get a fuller breakdown of the claim and the settlement if I can get it in time.

 

 

No this is not the case at all. The car hire claim and loss of earnings are separate heads of claim. Do the forms say why they were off work?

 

 

 

 

 

 

Thanks.

[andydd]

If its clear it was a F&F settlement you could apply for summary judgement on the basis its an abuse of process, you can also claim costs (as SJ is pre allocation, so small claims rules dont apply).