Small Claims, County Court or Arbitration?
If the phone calls, discussions and letters haven’t worked and you still haven’t got your money back, you may decide to go to court. There are numerous options and it’s important to make an informed choice as to which is best, most cost effective, and of course which is most likely to achieve success.
ArbitrationFirstly, check whether the seller from whom you are trying to claim a refund is a member of a trade association. If so, arbitration can be quicker, simpler and less formal than going to court. However, sometimes there is a fee to pay for the arbitration service if you aren’t successful, so it’s always advisable to check first. If you lose at an arbitration hearing, you cannot then take the case to court (except in very limited circumstances.) Generally, you must choose either court or arbitration.
Even if your seller is not a member of a trade association there are other forms of Alternative Dispute Resolution (ADR), such as those provided by Ombudsman schemes, Regulators and Independent mediation services. All of these are intended to avoid having to go to court to resolve serious disputes.
Should You Go To Court?In terms of going to court you should first consider your prospects of success at a court hearing. If the seller can prove that they have acted properly in the circumstances, they may have discharged their legal obligations and not be liable for any further action. This could be the case even if there was a legitimate problem to begin with. However, if the trader has not been so accommodating and tried to offer you a repair, replacement or refund, you may have a claim.
Small ClaimsWhich court you go to depends on a number of things, but broadly if the goods are valued at £5000 or less, you should go to the small claims court. In Scotland, if you are claiming £3000 or less, you should use the sheriff’s court.
Although you don’t necessarily need to have a lawyer there are still costs involved, and you will need to spend time and effort collating the evidence on which you intend to rely as well as reading, considering and responding to the defendant’s defence (if they provide one.) However, even though small claims hearings are dealt with in the county court building (like other county court hearings) they are heard in private and are relatively informal in comparison to other court proceedings.
If you win your case (called ‘obtaining judgment’), aside from the amount you are owed the defendant is usually ordered to pay your costs or a portion of them, and sometimes reasonable expenses.
You will only be required to pay the defendant’s costs if the court decides that you have acted unfairly or unreasonably, or if you fail to appear at the hearing. A recent development is Money Claim Online, which is the court service's internet-based service for claimants and defendants.
The County CourtIf your claim is for over £5,000 it will be allocated to the ‘fast track’ in the county court (over £50,000 or a case of considerable complexity is allocated to the ‘multi-track’). County court proceedings usually take longer to resolve and there is a more formal procedure. Fees are higher than in the small claims court. You may decide, given the amount of money at stake, to be represented by a lawyer.
Whichever route you decide to take, the most important thing to do is ensure that you are well prepared and retain copies of all documents and other evidence (photographs etc) in order to have the best possible chance of proving your case. Although you may feel very strongly about your claim you should try to detach yourself emotionally and remain calm and polite at all times.