Should we go for fast track or stick with small claims?

[lynne1000]

We are being taken to court by landlady for £10k. We have defended it. We have been advised we may have a case for misrepresentation. We are at the stage where we have received our notice of proposed allocation to small claims track and directions questionnaire. There is a page missing from the N180 so I need to ring the court to get the missing page. Can anyone advise, is there any advantage to asking for fast track or are we best to stick with small claims.? I am guessing that because there are two defendants the court are splitting the amount so it therefore falls into small claims category?

 

Also, our landlord was joint husband and wife but only the wife is the claimant. Is this anything I can challenge and make him involved too or is it too late or does it even matter?

 

Thanks in advance

[caro]

I don't see that you can make the husband claim or how it might benefit you.

 

If you stick to small claims (£10k is usually the limit) each side bears their own costs, but if you lose a fast track case you'd have to pay all the claimants costs, including any solicitors or barristers they may employ.

[lynne1000]

Thank you caro.

[mjt2013]

Yes, it's basically a costs and complexity thing with the FT being the more costly and complex of the two. If you're acting in person, and therefore won't have solicitors fees of your own to pay, you may wish to just keep it in the SCT. Be aware that if you were to try to get it reallocated you would need a good reason because the SCT limit is now £10,000 so this does seem at first glance to be a SCT case.

[lynne1000]

Thanks for that. No, we don't have a solicitor so we are just so daunted by it. The claimant has repeatedly lied and we just hope that we will get our chance to prove it. We are told we have a possible case for misrepresentation but it depends on the day!

 

So, small claims it is. We shall wait and see what happens

[caro]

If you do a counterclaim it would still be small claims if that was £10k or under too, although I don't think that would be a simple matter. You'd need to do some research on that, or possibly get professional advice on that.

[lynne1000]

Thank you Caro. We haven't done a counterclaim. We are waiting to see if we win on grounds of misrepresentation and then we will take advice on how to proceed with that claim. We have lost about £25k all in all but I don't think we will be able to claim all back but we will be having a very close look at what we can claim.

[steampowered]

Why do you think you will be able to wait and see if you win on misrepresentation - are you envisaging multiple hearings?

 

The courts will expect you to bring forward all your arguments relating to the same set of facts at the first opportunity. If you do not the risk is that future claims will be barred ... generally you are only supposed to litigate the same thing once.

[lynne1000]

We are not certain we will win. We took only minimum legal advice from our solicitor. We couldn't afford for him to do a full defence for us. He advised that we might have a case for misrepresentation but it depended "on the day and it could go either way". He told us to send a letter to the claimant giving all our reasons for what we did and invite her to withdraw and to also advise her that we would be proceeding with a claim against her and that a breakdown would follow. We have done that. So given that information, we didn't do a counter claim. Never having been in this situation before, we didn't know what to do and we were advised not to make a counterclaim at this stage. Was this the wrong thing to do?

 

Are you saying to me that we will not be able to make a claim against her if we win?

[steampowered]

If your counterclaim arises from the same set of facts as the claim she is making, or is very closely related to the claim she is making, then yes she would have a solid Defence if you tried to bring the counterclaim later. Generally speaking once a dispute has been to court once you are not allowed to relitigate the same dispute.

 

It is very difficult to give a view on this without knowing a bit more about what the case is about and what the alleged misrepresentation concerns.

 

Who advised you not to make a counterclaim and why?

[lynne1000]

That's a real shame. However, if we won and she got nothing then we could live with that I suppose. Our solicitor advised us not to counterclaim. He didn't tell us why and we didn't question it. Very briefly, we signed a 10 year lease last year. Landlady put in email to us that it was for one week only until the real version was ready and it was with her solicitor. We kept asking for "real" lease for 3 months. We told her our solicitor was wanting to see it and she immediately offered us a new lease for a lesser period of 6 years. That lease also never arrived. We endured lots of problems with the property and finally discovered through our energy provider that the electric supply had been disconnected some 3 years earlier and concluded that the supply had been bypassed and was in fact an illegal supply. we were still trying to resolve that when we left. Enough was enough for us and we left and returned the keys. Rent was paid in advance for the next 10 weeks. She is claiming next two years rent and insurance for next two years but I don't see how she can know what insurance will be! I guess she is claiming two years rent because in the "one week" lease, break clause was 3 years.

[AndyOrch]

Our solicitor advised us not to counterclaim. He didn't tell us why and we didn't question it.

 

Possibly if you did CC that is added to the 10K therefore pushing it into Fast Track.

 

Regards

 

Andy

[lynne1000]

Thank you Andy. We have already submitted our defence though and didn't counterclaim so I am guessing from the post by steampowered that's its maybe too late now. I think for now we will just be pleased when its all over and we can take stock later. I just wish I had found this site sooner.

[lynne1000]

Ah Andy, have just read your post again and see what you mean now! Meaning pushing it into fast track by counterclaiming would make it a high value claim and even higher costs/fees for us and one we couldn't defend on our own without professional help and a lot of expense.

[AndyOrch]

Ah Andy, have just read your post again and see what you mean now! Meaning pushing it into fast track by counterclaiming would make it a high value claim and even higher costs/fees for us and one we couldn't defend on our own without professional help and a lot of expense.