Small Claims Proceedings

[DeaBea]

I am after some advice please.

 

Having paid in full some time ago for my Wedding Album, I am now looking at going to the Small Claims Court. I have been trying to resolve the issue amicably for a long time now. Paul Fisher Photography will not answer his phone when I contact him and very rarely answers my e-mails. When he does answer my e-mails, he never actually answers the points I have raised. He just simply makes a promise that he never keeps to. I have sent him various letters (Supply of goods 1982) to which he claims have been sent to the wrong address as he no longer lives their (I receive abrupt e-mails from him). He does receive them as he eventually answers them. I have been sending them to both of his last know addresses of which his family members still live.

 

As he refuses to inform me of his correct address, am I able to send the court summons to his last known address? and will this be valid for me to do so? I know his parents still live there. Just not sure if they have a legal responsibility to inform him of a court summons letter.

 

Other advice I am after. When I fill in the paperwork, do I have to also include all proof in the initial paperwork? or is this only sent to Paul Fisher Photography if he chooses to defend himself against my claim? I do not wish to provide all details as this may make his defence easier on the day.

 

 

Many thanks in advance.

[citizenB]

What addresses are on this company's paperwork/invoices ?

 

As a rule a claim is issued to a Registered office/Head office. But it looks as though this person works from home, yes ?

 

I will try and get some more help for you.

[AndyOrch]

Hi Dea

 

I am after some advice please.

 

Having paid in full some time ago for my Wedding Album, I am now looking at going to the Small Claims Court. I have been trying to resolve the issue amicably for a long time now. Paul Fisher Photography will not answer his phone when I contact him and very rarely answers my e-mails. When he does answer my e-mails, he never actually answers the points I have raised. He just simply makes a promise that he never keeps to. I have sent him various letters (Supply of goods 1982) to which he claims have been sent to the wrong address as he no longer lives their (I receive abrupt e-mails from him). He does receive them as he eventually answers them. I have been sending them to both of his last know addresses of which his family members still live.

 

As he refuses to inform me of his correct address, am I able to send the court summons to his last known address? and will this be valid for me to do so? I know his parents still live there. Just not sure if they have a legal responsibility to inform him of a court summons letter.

 

Other advice I am after. When I fill in the paperwork, do I have to also include all proof in the initial paperwork? No as you will issue it through MCOL (Online) or is this only sent to Paul Fisher Photography if he chooses to defend himself against my claim? (Yes If he requests copies via CPR) I do not wish to provide all details as this may make his defence easier on the day.

 

 

Many thanks in advance.

 

 

Regards

Andy

[DeaBea]

Thanks for information so far.

 

Basically, when I booked and paid for my wedding album he had his own shop and website. Since then, he no longer runs from the shop and I was informed by his website provider that he failed to pay for the website services; hence his website no longer running. He claims to still be running an active business but will not provide any contact information other than his mobile number and e-mail address. He will not answer his mobile and rarely answers his e-mails. I have challenged him with regards to vetting his calls (all calls go to answer phone) and he has neither confirmed or denied this.

 

Long and short of my problem. I initially sent my first letter to his last known address which was signed for and he eventially replied to it (2 weeks late). He informed me that he no longer lives there now. I then contacted his parents who informed me he does not live with them.

 

So what address to I provide for the Small Claims Court?

 

If I was to send the court letter via e-mail and received a read receipt, would this stand as being delivered when I arrive at court?

 

 

Once again - thanks

[AndyOrch]

I assume the problem is he never did the album (you haven't stated the problem) you therefore require the payment refunded ?

Ok onto your summons you will serve it at the last known address (his parents) dont worry when they open it they will make sure he gets it.

If they dont it goes in your favor as he will not respond or defend the claim.

Is there any vat reg numbers or company numbers on the paperwork? have you searched companies house? Or is he a one man band?

 

Andy

[DeaBea]

Sorry,

 

The problem I have is that I paid in full for our Wedding Album and he has not produced it. He keeps making promises but constantly fails to deliver. I have reported him to various authorities such as Trading Standards, Action Fraud and the Police. All have done very little to resolve the issue. Action Fraud have now noted the issue as fraud but to date have done nothing. Trading Standards sent him a letter to which he ignored.

 

He is a one man business. However, his partner at the time helped build the business. She now claims they have split up and as such stated she has nothing to do with the business. That said, various people have informed me they are living with each other (neighbours and a friend of his).

 

I even have e-mails that he has been auto forwarding to his so called ex-partners account. That is how I made contact with her. She also set up an e-mail account in his name and signed various e-mails using his name. It is for this reason, I believe they are together and she is still running the business with him.

My reason for going on about her is due to the house being in her name only (land search). Not sure if I can but the debt against the house if he fails to pay up; which I believe he will do.

 

Regards

[DeaBea]

One other question I have.

 

Does anyone know if the Court Summons envelope has any official marking on it indicating it has been sent from the courts.

Just wondering as this may cause some concern to his parents when it arrives and may kick start the reality check of his failings.

Hopefully he may pay up prior to going to court.

 

Regards

 

Dea

[AndyOrch]

Yes Dea it has Northamptons stamp on the summons but the envelope may have their Logo on. HMCS

 

Service of the claim form where the defendant does not give an address at which the defendant may be served

 

6.9

 

(1) This rule applies where –

(a) rule 6.5(1) (personal service);

 

(b) rule 6.7 (service of claim form on solicitor or European Lawyer); and

 

© rule 6.8 (defendant gives address at which the defendant may be served),

 

do not apply and the claimant does not wish to effect personal service under rule 6.5(2).

 

(2) Subject to paragraphs (3) to (6), the claim form must be served on the defendant at the place shown in the following table.

 

(For service out of the jurisdiction see rules 6.40 to 6.47.)

Nature of defendant to be servedPlace of service1. IndividualUsual or last known residence.2. Individual being sued in the name of a businessUsual or last known residence of the individual; orprincipal or last known place of business.3. Individual being sued in the business name of a partnershipUsual or last known residence of the individual; orprincipal or last known place of business of the partnership.4. Limited liability partnershipPrincipal office of the partnership; orany place of business of the partnership within the jurisdiction which has a real connection with the claim.5. Corporation (other than a company) incorporated in England and WalesPrincipal office of the corporation; orany place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim.6. Company registered in England and WalesPrincipal office of the company; orany place of business of the company within the jurisdiction which has a real connection with the claim.7. Any other company or corporationAny place within the jurisdiction where the corporation carries on its activities; orany place of business of the company within the jurisdiction.

(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

 

(4) Where, having taken the reasonable steps required by paragraph (3), the claimant –

(a) ascertains the defendant’s current address, the claim form must be served at that address; or

 

(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is –

(i) an alternative place where; or

 

(ii) an alternative method by which,

 

service may be effected.

 

 

(5) If, under paragraph (4)(b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15.

 

(6) Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant –

(a) cannot ascertain the defendant’s current residence or place of business; and

 

(b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b).

 

Regards

 

Andy

[DeaBea]

Andy,

 

Thanks for all the info. It has been of great help.

 

Do you know what happens if Paul Fisher Photography does not defend himself? or

 

If he does defend himself and is ordered to pay the fees but defaults on payment?

 

In the real world, what would this mean to me?

 

 

Regards

 

Dea

[AndyOrch]

Andy,

 

Thanks for all the info. It has been of great help.

 

Do you know what happens if Paul Fisher Photography does not defend himself? or You will request Judgment by default

If he does defend himself and is ordered to pay the fees but defaults on payment? You send in the Bailiffs

 

In the real world, what would this mean to me? Getting Judgment is one thing getting your money is another if he fails to pay

you have further options as above, Bailiffs or ATE ( Attachment to earnings)if employed.But we can cross that bridge if and when.

 

Regards

 

Dea

 

Regards

Andy

 

[Ralph49]

DeaBea. PM me, Ive got some information about Paul Fisher you may find of interest

[DeaBea]

Hi Ralph,

 

I have sent you a PM.

 

Many thanks

 

Dea

[Ed999]

Think hard before going to all the expense of suing him, as to whether there is any realistic prospect of enforcing any judgement you might obtain.

 

You have no idea where he really lives, nor of where his business premises are. How, then, do you hope to send in the bailiffs?

 

Have you properly considered whether to sue - as a co-defendant - his female business partner, who might have been a partner in the business at the time you agreed the contract terms? She appears to have a known address, to which you could send the bailiffs.

 

You also appear to be unclear as to what you are seeking. Are you actually trying just to get your money back? Or are you seeking damages for breach of contract on top? Or are you seeking possession of the photographs he took?

 

Would you be better off employing a Solicitor to bring a private prosecution for fraud? If there is no realistic prospect of enforcing any county court judgement, he could still be prosecuted for obtaining money by deception, fraud, or conspiracy [with his business partner] to defraud.

[DeaBea]

Ed999

 

I am seeking the costs of my wedding album plus interest and travel expenses.

I have given thought to suing his ex partner but to be honest, I am not sure if I can. She informed me via e-mail that she helped start the business with Paul Fisher but she now claims that they have split up since. However, they where together at the time of my wedding.

 

When she helped set up the business with Paul Fisher, they used her home address as the business address. This house is in her name only. When I paid Paul Fisher he hadhis own studio at the time. His ex partner informed me verbally that she also helped set up this studio with him. She has never informed me that she was a business partner; only helped set the business up.

 

So based on your experience, should/can I sue her.

 

Thanks in advance

 

Dea

[DeaBea]

Ed999

 

I am seeking the costs of my wedding

album plus interest and travel expenses.

I have given thought to suing his ex partner but to be honest, I am not sure if I can. She informed me via e-mail that she helped start the business with Paul Fisher but she now claims that they have split up since. However, they where together at the time of my wedding.

 

When she helped set up the business with Paul Fisher, they used her home address as the business address. This house is in her name only. When I paid Paul Fisher he hadhis own studio at the time. His ex partner informed me verbally that she also helped set up this studio with him. She has never informed me that she was a business partner; only helped set the business up.

 

So based on your experience, should/can I sue her.

 

Thanks in advance

 

Dea

 

[citizenB]

Responding to S.O.S

 

DeaBea, not quite sure what help you are requiring from me.

 

I see that andyorch has given you a good deal of information regarding CPRs and Ed has advised you to think carefully before proceeding.

 

IMHO, I too would be a little wary about issuing a claim upon someone at an address that may or not be the correct address and where, if you were to obtain judgment by default you would obtain no redress due to the bailiffs not having an address to act at ?

 

In answer to your question.. yes, there is usually a frank on the envelope which indicates that there is a court document contained within .

[DeaBea]

Hi,

 

I am still in the process of finding his current address. I believe I have the correct one; just require confirmation prior to submitting papers.

 

However, if I was to go ahead with the small and obtain a judgment by default, would this put a CCJ against his credit record. If so this would make life difficult for him.

 

Another point I have as raised by Ed999. His ex-partner helped build the business with him. They were together when payment was taken ( I have proof of this). Prior to Paul Fisher gaining his first studio, he used his ex's home address as his business address. Again, she informed me that she helped build the business. Surely he could not use an address as a business address without the permission his his partner.

 

In short, am I able to sue her as she is the sole owner of the address?

 

Dea

[Ed999]

I am seeking the costs of my weddingalbum plus interest and travel expenses.

 

 

I still am not clear, and - more importantly - nor will the Court be.

 

Are you trying just to get your money back? Or are you seeking damages for breach of contract on top? Or are you seeking possession of the photographs he took?

 

Let's start, please, by you clarifying whether he took any photographs.

 

Secondly, I think you need to consult a Solicitor. This is a specialist claim - holiday damages and wedding damages are always specialist claims. You won't get the best possible results without a specialist lawyer acting for you, because this type of claim is - or may include - a claim for damages for disappointment.

 

 

I have given thought to suing his ex partner but to be honest, I am not sure if I can. She informed me via e-mail that she helped start the business with Paul Fisher but she now claims that they have split up since. However, they where together at the time of my wedding.

When she helped set up the business with Paul Fisher, they used her home address as the business address. This house is in her name only. When I paid Paul Fisher he hadhis own studio at the time. His ex partner informed me verbally that she also helped set up this studio with him. She has never informed me that she was a business partner; only helped set the business up.

 

So based on your experience, should/can I sue her.

 

 

In my opinion, if you can sue her - i.e. if you had a contract with her - then you should sue her, given that the other person, Fisher, may be difficult to enforce a court judgement against.

 

Only a Court can decide what the legal effect of your contract is. The burden of proof falls on YOU to prove in court who you had the contract with. You must prove that the woman was in partnership with Fisher in the business and that your contract was with the partnership, or your claim against the woman will be likely to fail.

 

You obviously have some evidence that she was a partner in the business, from what you say about her admission that she helped start the business.

 

I recommend that you obtain legal advice as to whether you have a valid claim against her in law, and that you take into account the additional legal costs which you may have to pay to her if you lose. Your Solicitor will advise you about your liability for costs, depending upon what type of claim you make.

 

Consult a Solicitor, or take the risks of a DIY court action.

 

Read the Court Service's leaflet How do I make a court claim (Form EX302), which contains detailed guidance on suing in the County Court.

 

Also, the Business Link website provides much useful information about pursuing a County Court case.

 

 

Can I Win?

 

Unfortunately, the type of questions you are asking boil down to 'Can I win my claim?' This is a question that only the Court which hears the case can decide.

 

The Court will take into account the evidence which is given at a hearing by you and by, or on behalf of, the opponent. This evidence will only emerge by cross-questioning of the witnesses.

 

The outcome of a Court case is never certain.

[DeaBea]

Hi Ralph,

 

Can you PM me please.

 

Regards

 

Dea

[Ralph49]

Sorry Dea been away

[Ralph49]

A couple of things. What did Paul Fisher provide you in terms of a contract/ undertaking of work/ T&Cs of business etc if anything?

[Ralph49]

Is his facebook page still down?

[Ralph49]

Will PM you

[Kraken1]

this is all very odd - what is with all the private PMs? that sort of thing always seems ropey to me.

 

As to the claim - can't add anything to the above advice. Depending on the amounts involved, and what actually happened with the photos, then I'd consult a professional.

[DeaBea]

this is all very odd - what is with all the private PMs? that sort of thing always seems ropey to me.

 

As to the claim - can't add anything to the above advice. Depending on the amounts involved, and what actually happened with the photos, then I'd consult a professional.

 

Kraken1,

 

There is nothing ropey about the PM's. The person who I have been sending PM's to had some very useful information for me. The information was nothing to do with Advice and was intended for my eyes only. I resepect his wishes and reasons and as such I will not divulge it to the forum.

 

However, I do thank everyone for there valuable time and advice as it has been of great help. The situation is now being resolved (slowly) as Paul Fisher Photography does not wish to go to court.