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Small Claims Court advice


alanedge
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I am hoping someone may be able to either give me an answer or guide me to get the correct answer. Also I hope this is the right place for my question. The situation is as follows and I shall try and make it as brief and succint as possible.

 

My son and his friend recently won a small claims court case against his old landlord and her agent for not returning their deposit. There were other irregularities in the rental process but both agent and landlord were named separately on the action. At the time they proffered NO evidence to support why they should not return the deposit but my son had all the necessary evidence to win. Subsequently the agent tried to have the result set aside stating that her company (which was dissolved in May 2013) should have been named and not her. This time some very unsatisfactory and incorrect evidence on their part was offered but nothing to show that the original action was incorrect.

 

The Judge dismissed this claim stating the right person had been named. The agent and landlord have steadfastly refused to pay my son the amount won and we have employed the High Court Enforcement Agency to recover goods from both the agent and the landlord. He now has been told by the court that the agent has again submitted ANOTHER action to have the award set aside of which he is awaiting the details for.

 

We could go to a solicitor but that is going to cost money that will eat into the amount already awarded. I do know we have a couple of other actions we can take to recover the money but that again will take time but we shall do that if necessary.

 

I was under the impression that once a decision had been made in the small claims court that there was nothing or very little a defendant could do to have that decision overturned. If that is not the case just how many times can this be repeated as each time it costs my son money to defend which he can ill afford. How do we stop the person from continuosly starting actions for the same claim and if we cannot, how do we defend it without incurring more costs?

 

Thank you in advance and I hope the above makes sense.

 

Alan.

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I am no expert on small claims and I'm sure someone will clarify for you but I understand that someone cannot keep taking actions out which you have to defend if they could reasonably have raised the matter in the previous hearing. ie If there is four arguments in relation to a matter you can't keep raising them consecutively if they could have been raised together. It's called res judicata. It places an unfair burden on someone having to defend the action, running up the costs and having several bites of the cherry. I think you could raise this argument in response to the current request to have the verdict set aside. If the argument could reasonably have been raised by them the last time and they didn't, it isn't right to keep subjecting your son to have to respond. I have found this forum very good to get legal arguments and specific case law references once someone knows exactly what the basis for this latest request to have the verdict set aside is.

 

Is your son eligible for free legal advice? You can also contact Citizens advice bureau and/or you local community legal advice centre.

 

You may need to be more specific with exactly what the agent is now claiming in order to get the judgement set aside but I am sure even if you cannot get proper legal advice you will get sufficient advice from someone on this forum to talk you through more of the process. Good luck

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" He now has been told by the court that the agent has again submitted ANOTHER action to have the award set aside of which he is awaiting the details for."

 

It wont be allowed the application should be denied by the court.

 

Regards

 

Andy

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I have successfully overcome a similar situation by arguing that the correct process was not to make a second set aside application once the first one failed but, rather, to appeal the refusal before a Circuit Judge. The District Judge agreed and threw out the second set aside application and the subsequent Appeal application was rejected by the Circuit Judge.

 

What was great was when bankruptcy proceedings were instigated against the builder, a 3rd set aside application was made. Which was great because we knew that the District Judge had to follow the Circuit Judge's earlier decision.

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If this second set aside application is just the same as the first one, perhaps it is worth preparing a schedule of costs and asking the judge to award costs for that application on the basis of unreasonable conduct at the litigant in person rate of 18 an hour. If this is the route you want to go down you should write to the agent warning them that you intend to ask for this.

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