Small claims court fees - part refund - who pays court fees?

[fpeeped]

I sold an item through PayPal (not Ebay) and it was a private sale. They received it and said it wasn't working. They posted it back to me and demanded a refund, saying I had 14 days to pay the refund. They didn't specify what, if anything, would happen if I didn't refund them after 14 days.

 

I told them once, at the beginning of the debacle, that I was not going to refund them anything.

 

I assumed after the 14 days they would open a PayPal Resolution Centre dispute (which I was more than happy for them to do) but instead I receive a County Court Small Claims Form.

 

They are claiming:

the original price of the item (plus postage)

the cost of return postage (they returned it without my request)

the court fees of £35.00

 

They stated they want to the court hearings to take place near Manchester which is over 240 miles from us in Devon. We'd have to use public transport, it would take a whole day to get there and we would probably have to stay over. That would amount to more than the whole claim!

 

Basically, i'm too old and ill to worry about all of this, but i'm not prepared to pay the whole lot. I am thinking about offering to pay them the original price of the item, but NOT return postage or court fees.

 

It works out to about 1/3 of the total cost they are trying to claim.

 

My question: If they accept my offer, who has to pay the £35.00 court fees? Or does this court fee simply go away at that point?

 

Many thanks

[Ganymede]

The Court fee has already been paid by the Claimant upon issuing the claim.

[andydd]

I assume you are both individuals ?. In that case, it would be allocated to the defendant's (i.e you) local court so it would be upto the claimant to travel to you.

 

If you however sold the item as a business then it may well be allocated to Manchester, in theory the losing side could have to pay the other sides travel expenses (including staying overnight), this scenario is quite rare.

 

You are welcome to offer to settle at any stage, remember to mark all correspondence 'Without Prejudice Save As To Costs', in theory even if it will be allocated to small claims track you can use the provision of CPR 36 > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part36, if its not yet allocated, Part 36 offers put extra pressure on both sides to settle as there may be extra cost consequences, it can however be rrtaher confusing and its not really clear whether it does actually apply to claims that would eventually be allocated to small claims track.

 

Its unclear whether or not you would have a strong case, but the fact they didnt first follow the Paypal resolution process is something you could bring up and a Judge may well want to know why they didnt use this, and evn if they found in the other sides favour they may penalise him for not trying to settle by using Paypals service (after all thats what its there for).

 

If I were you I'd right a letter to them, pointing out that its the cl,aimant who would have to travel to YOUR local court, that you will argue that they should be penalised for not using Paypals resolution service even if they win and add what defence you have, then perhaps offer to refund the original sum (if you were to mark the offer as a Part 36 offer it would be wise to perhaps add a few quid on ?).

[steampowered]

Say that any settlement offer is in 'full and final settlement' to make it clear that the offer does not include reimbursement of court fees. The claimant paid this already and will not get refunded.

 

You may wish to point out that they haven't complied with the Practice Direction on Pre-Action Conduct as they didn't provide a proper 'letter before claim' (see http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct - Annex A is the relevant part).

 

You may also wish to refer them to CPR 26.2A which provides as follows (http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part26#26.2A). The claim should automatically be allocated to your home court regardless of any request made by the claimant. The only exception is where you (the Defendant) say otherwise.

 

(3) Subject to paragraph (5), if the defendant is an individual, at the relevant time the claim will be sent to the defendant’s home court (save that where there are two or more defendants, one or more of whom are individuals, the claim will be sent to the home court of the defendant who first files their defence).

(5) If a defendant under paragraph (3) or a claimant under paragraph (4) has specified a court other than the preferred court on their directions questionnaire, the claim will be sent to that court.

 

Whatever you do, you need to make sure you acknowledge service and enter a Defence within the time allowed. Otherwise you will end up with a default judgment against you. The Instructions for doing this should be on the form.

[fpeeped]

Absolutely brilliant, everyone. Thank you so much. Yes, the sale was between two individuals and was not commercial. The claimant contacted me after an Ebay item I had listed ended with no bids, and the item remained unsold. Claimant offered a price and we came to an agreement on the sale that way.

 

I do have one more question... In my correspondence, following their first complaint to me about said item Claimant said he was returning the item to me (without a request fro me to do so) and then Claimant stated at the end of a message to me (paraphrasing):

"So, it's up to you then whether you refund me for item x or not!" Regards, Claimant."

 

As I had already clearly stated my position on the dispute in my previous message to Claimant, and was not prepared to enter into an an e-mail back and forth argument, I did not reply to Claimant's last letter. I took Claimant at their word. Then, of course, 6 days later I received more e-mails, more demands, etc.

 

Would this be a solid element to my defence, too? It seemed poignant and meaningful at the time, and still does when reviewing all of the evidence I have. What do you think?

Edited April 16, 2014 by fpeeped

[steampowered]

The court will be concerned with whether you have breached the sale contract rather than how each side acted after the problem arise. Legally, I don't think it really matters what was said in email correspondence after the item was sold. Since there are no rules regarding "satisfactory quality" in private sales, the legal question would be whether the item conforms to the description you provided on ebay.

 

Out of interest, is the item actually working or not?

[fpeeped]

Thanks for the clarification. As the Ebay listing ended in December 2013, i'm not sure if I can find the Ebay advert now, and all the details it contained, but it was listed as used condition & fully tested and working (which it was)

 

After Claimant returned it, it no longer displays any images on the back screen. It's just a solid colour. to be honest, I can't even tell if the camera is the same one I sent, as it was a 8+ year old camera with scratches, marks, etc on it from years of use.

 

*Just checked Ebay and it's impossible to retrieve any information about unsold items listings if they are more than 60 days has elapsed. So it looks like I have no way of printing a copy of the camera's advertised info.

Edited April 16, 2014 by fpeeped

[andydd]

Yep..Ebay ads dissapear quickly, you may be able to find the related Paypal payment but that will only list the payment no pix or details about the item.

 

It sounds like the buyer would have a very hard time proving his case, he will need evidence and persuede the Judge that the item you sold wasnt as described, again, Ebay/Paypal have procedures for this (and many would say that they favour the buyer) so he was foolish to not use them.

 

When you explain that it would be the buyer who has to travel to your local court and that he hasnt a very strong case he maybe more agreeable to drop the case or accept a refund you may offer.

[steampowered]

OK. So the camera was described as working. Now it is not working. Unfortunately it sounds to me like this other person might have a strong claim against you, for a refund at least !!!

 

If the camera was damaged in transit that would normally be the seller's responsibility.

[fpeeped]

OK. So the camera was described as working. Now it is not working. Unfortunately it sounds to me like this other person might have a strong claim against you, for a refund at least !!!

 

If the camera was damaged in transit that would normally be the seller's responsibility.

 

It's not a clear as you make out, or at least, I hope it isn't.

 

If I had been a "dodgy" ebay seller with negative feedback from other users on my account, or if I was a very new Ebay user with hardly any feedback from previous sales, then I might agree with this argument.

 

However, I have hundreds of positive feedback ratings on my Ebay account from other users - both from sales and purchases. I have 100% positive feedback, and have never had a negative one since I joined Ebay nearly a decade ago.

 

Don't forget the very same item was advertised on Ebay. Nobody bought it and the auction ended. Then Claimant (who has less than 30 ratings on their Ebay account) asked if they could purchase the item for a lower price. The very same item which I advertised on Ebay, as fully working, was sold to the Claimant, and they are fully aware of that.

 

Surely that gives me a stronger position? The more I think about going to court, the more scary it gets actually.

[steampowered]

I think it is important not to overcomplicate this. If you defend the case and it gets to court, the judge will have to decide (1) what was the description of the camera and (2) did it meet that description on delivery.

 

If the answer to (1) is that the camera was described as working and the answer to (2) is that the camera was not working when it was delivered, the judge will have to find in favour of the claimant despite the feedback.

 

If you accept that you described the camera was working and you accept that it doesn't work, it seems to me the only way you can win the case is if you can convince the judge that it was the claimant who broke the camera. This is not impossible but I think you might find it difficult to persuade the judge of this. I think the feedback etc. is possibly relevant to the credibility of each side but not relevant to the legal merits of the case.

 

My personal view is that your initial course of action is sensible. Its probably best to offer a full refund. You could make the point that you should not have to pay the court fees, because the Claimant failed to properly follow the Practice Direction on Pre-Action Conduct which required him to write a 'letter before action', and if he had done that it might not have been necessary to issue a claim.

[fpeeped]

I understand what you're saying. Thanks again for everyone's input. Hopefully this is my first and last experience as a defendant.

[steampowered]

No worries. Hope it goes well for you.

 

If he doesn't accept any offer you make, you can always enter a Defence and wait until the case has been allocated to your local court, as it should be. Once he realises he would have to travel he may be more inclined to accept the offer!!