The Whole Process in One Post!!

[Movingon]

Here it is; the best I could come up with for businesses. I will try something similar soon for consumers.

 

Please bear in mind that this process is only useful to those domiciled and/or claiming in England, Wales and possibly Northern Ireland.

 

First step is to get together all the charges you intend to claim; date, amount and description, from your bank statements. Because you're a business I'm assuming that this information will be to hand - because if it isn't, Data Protection Law doesn't enable access to the information quite as easily (or as cheaply!) as it does for a consumer. Once you have a list of charges and a total, you'll need to send the preliminary approach letter, obviously this is just a template for you to put on your headed paper and format/fill in to your requirements. The tone is quite aggressive - in the business world extremely so. Unfortunately this is necessary as without that tone, they will succeed in engaging you in pointless dialogue interminably.

 

Once the 14 days have expired with no positive reaction from them, send letter 2 - the Letter Before Action. This is formal notice that you intend to begin proceedings unless they respond positively to your request. The tone is noticeably harder. They will likely respond in the negative or completely ignore it.

 

On the 15th day, in the absence of a positive response from the bank, fill in a form N1 with the details shown HERE. Your claim for interest (as provided for under Civil Procedure Rules) should be 8% per annum (0.022% per day) on each individual charge; we can supply a spreadsheet to help you calculate this if required. This is notification to the Court system that you have a claim. Send or take this to your local County Court with the fee (see below). From the date that this is processed by the Court and Served on the Defendant (the bank at their Head Office address) they have 14 days to acknowledge the claim. If they do so, that deadline is extended by a further 14 days, by which time they must file a defence. (Essentially a reply to your claim). After the defence is filed, the Court will send out Allocation Questionnaires to you and to the bank; this will determine which Track the claim is allocated to (see below). If the claim is for more than £1500 (disregarding interest and court fees), there will be a further £100 fee to pay when you return the questionnaire. Some time later (a couple of weeks or so - maybe a month) you will receive a General Notice or Order (something like that) setting a court date and allocating a track and Court. (It will be your local court). At the Court date, you will be expected to attend with a bundle of documents which we can provide if needed nearer the time. Basically they will be transcripts of former cases (precedents), the Laws you're relying on, your letters and the bank's replies, bank statements showing the charges, your schedule of charges... etc etc etc.

 

Now, the ways they can mess it up for you. Firstly, they may ignore your letters or respond in a muddled, aggressive or ignorant way. Ignore this and stick to your shcedule - however aggressive they become it's mere sabre rattling in an attempt to put you off; anything else is purely and simply to confuse you. Next, they may not acknowledge the claim within 14 days. You can in this case file for Judgement by Default - the bank will swiftly respond by asking for the Judgement to be set aside (cancelled) because they "didn't get the opportunity to respond". You should allow this to happen - it may bring forward your hearing; you should attend court with a full court bundle as if you're going to the full hearing - YOU MAY BE!! Next they may acknowledge the claim but fail to file a defence within the 28 days; same scenario as before exactly, just 14 days later. They may attempt to intimidate you by sending letters to the court asking for the case to be struck out because it has no merit; or writing to you for "further information" pursuant to Civil Procedure Rules (CPR) Part 18. See below for the tracks; Small Claims track is specifically excluded from Part 18 requests by Part 27 and requests of this nature can be safely ignored or rebuffed. At any point during these proceedings, CAG can advise you on how to deal with obfuscation by the bank.

 

OK, Procedures. Small Claims Procedure applies to claims which have a monetary value not exceeding £5000 in themselves; i.e. disregarding interest under CPR and court fees. Above £5000, claims are likely to be allocate to the "Fast Track"; Claimants are in this case exposed to a risk - that Costs will be awarded against them. HOWEVER, there is something else about Tracks which we skimmed over earlier; Standard Disclosure. Under Fast Track, Standard Disclosure is required under CPR Pt 18. This means that both Claimant and Defendant must send to the court and the other parties ALL the info upon which they intend to rely in the courtroom. Nothing else is admissable. The bank would therefore have to send in details of the costs to which they were put as a result of your breaches of contract (defaults, late payments etc). They WILL NOT do this because it will IMMEDIATELY expose their unlawful behaviour - and in Fast Track or above will set a legal precedent. They simply cannot afford it. Therefore any cases allocated to Fast Track and above will IMMEDIATELY be settled. No doubt in my mind whatsoever. In Small Claims track cases, the maximum costs the Claimant will be exposed to is Court Fees (if they lose), and as mentioned before Standard Disclosure does not apply.

 

Ways you can make it quicker: if your claim is under £5000, when you submit your Allocation Questionnaire you can put in a paragraph which states "It is respectfully requested that the Court order Standard Disclosure in this case. The Claimant is aware of their responsibility to mitigate and believes that ordering Standard Disclosure will bring this case to a swift conclusion without a Court hearing being necessary." You can also write to the Defendant's solicitors reminding them of THEIR responsibility to mitigate, (and the costs to which they're exposed) and offering them the opportunity to pay up in full prior to the necessity for any hearing. If your claim is ABOVE £5000, you can ask for it to be allocated to the Small Claims track - because you're a business you have a responsibility to your shareholders/customers/partners etc to minimise any costs involved etc etc etc. You get the idea.

 

Finally, when will you get your money? Well, banks have been known to pay up before even acknowledging a claim; but only for relatively small amounts. Usually for larger amounts they will obfuscate and shilly-shally to the best of their ability - but when it becomes clear that you're willing to attend court to resolve the issue they will capitulate and pay up in full.

 

FEES:

 

Claims below £500 - £35

Claims from £501-£1500 - £80

Claims from £1501-£5000 - £120 + £100 Allocation Questionnaire Fee

 

Hope this helps! If so please click the scales...

[Movingon]

*bumpetty-bump

[Movingon]

**Bump-tiddley bump bump.... BUMP BUMP!

[Movingon]

Cheers stoney - do you want to add letter templates and POC with the relvant bit changed for businesses and make the differences in claiming as a sole trader, partnership and ltd companies clear ?

 

Then we can make a sticky as the business claiming advice is a little thin on the ground.

 

I would except that I don't know them... the differences that is. I also figured that putting the letter templates and particulars of claim here would be pointless as they exist elsewhere on the site and you have to be a member to view them...

[buzby]

Tom - Might be useful that the procedure is flagged as only being relevant for England & Wales, as the NI and Scottish limits and process are slightly different. (I know YOU knew that, but it doesn't say!) Also, no Small Claims action has the ability to set any precedent - it is a stand alone. Precedents are only set for 'real deal' and SC judjements are not even recorded for posterity in law journals, only CRA's!

[Movingon]

Also, no Small Claims action has the ability to set any precedent - it is a stand alone. Precedents are only set for 'real deal' and SC judjements are not even recorded for posterity in law journals, only CRA's!

 

Which is why I SPECIFICALLY state that a precedent may be set in Fast Track... which is NOT Small Claims.

[buzby]

Will this be at the discretion' of the judge? I was speaking to one of the TS lawyers who explained to me that Fast Track still used much of SC's rules, and that there was no chance of a precedent being set fast-track or not. However, they've been wrong before, which is why I'm wondering if it could be at judicial discretion?

 

There are times when a contemplated action could be worth skipping SC and going for a formal action so that a precedent is set. From what I can see, it's a raffle whether a SC action raised is is marked for Fast Track or not (eg It is not at the discretion of the pursuer) so there's a random element of will it/won't it. Also this similarly will not apply in Scotand as there is no fast track equivalent, and no chance for any precedents being set unless an Ordinary Action is raised.

[Movingon]

Bump-tiddley bump bump - BUMP BUMP!!

[buzby]

Still not planning to highlight that this only refers to E&W actions....?

[Movingon]

Still not planning to highlight that this only refers to E&W actions....?

 

I believe that some idiot called Buzby (formerly known as Okonski) already did that, up there... it's a valid point and one that I didn't actually dispute... the implication being that I allowed it to stand...

 

BTW - if you really think it's that important, you could always write one that's valid for Scotland...?

[buzby]

Actually - if it was contained within the prime missive, it might not drop-off as easily as I've fielded a few queries in the Scotland forum that assumed that we now had the more enlightened scheme you outlined!

[Movingon]

Bing!!

[Movingon]

Boioioioioinnnnnnggggg!!!

[Movingon]

Bing!

[Movingon]

Boyng!!