Small claims court jurisdiction query
Discussion
Hi there
I'm about to begin a small claims action against a Welsh company from whom I purchased a new van last year, and I'm unsure which court system to use. I live in Scotland, and the van was purchased and paid for online prior to collection. The claim is in excess of £5000; in Scotland small claims are limited to £5k, whereas the England/Wales limit in £10k although the downside would be the requirement to travel if it goes to a hearing and the fee is higher. If bringing the action in Scotland was allowed I may settle for the £5k claim limit.
I have searched online but can't find a definitive answer so would appreciate advice.
Thanks
Tim
I'm about to begin a small claims action against a Welsh company from whom I purchased a new van last year, and I'm unsure which court system to use. I live in Scotland, and the van was purchased and paid for online prior to collection. The claim is in excess of £5000; in Scotland small claims are limited to £5k, whereas the England/Wales limit in £10k although the downside would be the requirement to travel if it goes to a hearing and the fee is higher. If bringing the action in Scotland was allowed I may settle for the £5k claim limit.
I have searched online but can't find a definitive answer so would appreciate advice.
Thanks
Tim
agtlaw said:
What do the terms and conditions say about jurisdiction?
When I was researching yesterday I read that that this could be contained within the terms and conditions; The only sale documentation I have is an unsigned vehicle invoice which has limited conditions of sale with no mention of jurisdiction. I can't recall if I signed forms when I picked the vehicle up, so will need to ask the dealer for a scan of any forms relating to the sale.Absent a contractual term specifying governing law and jurisdiction, the Civil Jurisdiction and Judgments Act 1982 is your starting point. It's not a straightforward piece of law - good luck wading through it :/
The general principle in contractual claims between EU members is that you generally have to sue a defendant where you find them. If you were to issue through Money Claims Online in the English courts, it's unlikely that the court will take any point about jurisdiction and it would almost certainly hear the claim.
Whether you have an argument for issuing in Scotland, I don't know. Scotland has its own laws, not all of which are the same as the corresponding English laws, and you would have to persuade the judge that there is sufficient basis for it to hear the claim where the defendant is within the jurisdiction of England and Wales. You may be able to argue that the place for performance of the contract was Scotland, so jurisdiction lies with the Scottish courts.
You need advice from a Scottish lawyer on what stance the Scottish court is likely to take.
The general principle in contractual claims between EU members is that you generally have to sue a defendant where you find them. If you were to issue through Money Claims Online in the English courts, it's unlikely that the court will take any point about jurisdiction and it would almost certainly hear the claim.
Whether you have an argument for issuing in Scotland, I don't know. Scotland has its own laws, not all of which are the same as the corresponding English laws, and you would have to persuade the judge that there is sufficient basis for it to hear the claim where the defendant is within the jurisdiction of England and Wales. You may be able to argue that the place for performance of the contract was Scotland, so jurisdiction lies with the Scottish courts.
You need advice from a Scottish lawyer on what stance the Scottish court is likely to take.
Many thanks for the helpful replies. In terms of jurisdiction, I obtained the signed contract and it doesn't mention anything regarding where disputes should be heard. I received an initial reply from a solicitor today, and he suggested that as I bought the van through my business he doesn't think I can rely on consumer legislation to establish jurisdiction in Scotland. Unfortunately the costs of engaging a solicitor are prohibitive; I've been quoted between £500-£1000 plus vat for an initial consultation and letter.
I think the best way forward is to start a small claims in the English Courts, not least because of the higher claim limit. The van is 14 months old and has suffered four steering failures in that time, the first being within 30 days of purchase. The power steering failed again whilst driving two weeks ago. Since then the van has been at a local garage awaiting an independent inspection organised by me. I have (not unreasonably) lost confidence in the van and have incurred significant expense over the last year due to lost income and hire van charges (repairing dealer doesn't supply courtesy vehicles even though they are obliged to by Fiat UK). Fiat have been dreadful throughout this process.
The supplying dealer is not prepared to accept my rejection of the vehicle (less a reasonable deduction for use) on the basis that it is 14 months old. Whilst I appreciate it is more difficult to reject a vehicle as time passes, the fact that the first failure occurred within 30 days implies that it was a manufacturing defect rather than wear and tear, and giving them three attempts to repair the van is more than reasonable. The solicitor who contacted me said that in the event they refuse the rejection, I could claim reasonable costs of a replacement vehicle in addition to the expenditure to date as a result of the previous faults. The supplying dealer is offering to attempt a fourth repair which I have refused; I've been here three times before with them and on each occasion they have assured me they have fixed the fault. I really need to think about the best way forward in terms of the van and the nature of claim. I'm not entirely sure what I do with the van in the meantime? It clearly has an inherent safety related fault and I'm unwilling to sell it on to anyone other than trade with full disclosure of its history. I obtained a couple of offers from online buying sites for the vehicle as is (essentially a non-runner) which are predictable low, and thought I could use this as an average value to reduce the claim but I'm not entirely convinced this is the best way forward.
I really welcome input on this.
I think the best way forward is to start a small claims in the English Courts, not least because of the higher claim limit. The van is 14 months old and has suffered four steering failures in that time, the first being within 30 days of purchase. The power steering failed again whilst driving two weeks ago. Since then the van has been at a local garage awaiting an independent inspection organised by me. I have (not unreasonably) lost confidence in the van and have incurred significant expense over the last year due to lost income and hire van charges (repairing dealer doesn't supply courtesy vehicles even though they are obliged to by Fiat UK). Fiat have been dreadful throughout this process.
The supplying dealer is not prepared to accept my rejection of the vehicle (less a reasonable deduction for use) on the basis that it is 14 months old. Whilst I appreciate it is more difficult to reject a vehicle as time passes, the fact that the first failure occurred within 30 days implies that it was a manufacturing defect rather than wear and tear, and giving them three attempts to repair the van is more than reasonable. The solicitor who contacted me said that in the event they refuse the rejection, I could claim reasonable costs of a replacement vehicle in addition to the expenditure to date as a result of the previous faults. The supplying dealer is offering to attempt a fourth repair which I have refused; I've been here three times before with them and on each occasion they have assured me they have fixed the fault. I really need to think about the best way forward in terms of the van and the nature of claim. I'm not entirely sure what I do with the van in the meantime? It clearly has an inherent safety related fault and I'm unwilling to sell it on to anyone other than trade with full disclosure of its history. I obtained a couple of offers from online buying sites for the vehicle as is (essentially a non-runner) which are predictable low, and thought I could use this as an average value to reduce the claim but I'm not entirely convinced this is the best way forward.
I really welcome input on this.
If the small claims limit is £5,000 in Scotland and your claim exceeds that would you not be better issuing the claim in Scotland through a solicitor?
I say this because the small claims court in England is total crap, and the only reason many people do it themselves is that if they use a solicitor they can't recover their charges, so the costs can often outweigh the amount at stake.
However, if your claim is outside the small claims limit in Scotland it would imply that you could recover legal costs, in which case using a solicitor would seem both sensible and justified.
Also, check both your motor and house contents policies to see if you have legal expenses insurance.
I say this because the small claims court in England is total crap, and the only reason many people do it themselves is that if they use a solicitor they can't recover their charges, so the costs can often outweigh the amount at stake.
However, if your claim is outside the small claims limit in Scotland it would imply that you could recover legal costs, in which case using a solicitor would seem both sensible and justified.
Also, check both your motor and house contents policies to see if you have legal expenses insurance.
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