Please could someone explain how the Small Claims Court works?

[NotActuallyAMum]

My nephew owes my sister £805, I won't bore you with the whole story but he's owed it her since last June and obviously has no intention of paying her back. Inevitably, they've now had a huge fallout and my sister thinks the Small Claims Court is her only hope of getting the money back. She has proof that he had the money (bank transfer)

She's worried that a) it might cost her too much to 'bring' the case, and b) even if she did win (surely she would?) he'll just refuse to pay and she won't get it back anyway

I wouldn't have thought b) could happen because everyone could do that, then there wouldn't be any point in the process existing in the first place

I'd really appreciate some pointers for her

For that amount of money the court fee to start the claim would be £60 if she does it online, £70 if not. If a hearing is required there would be a further fee of £80. If he refuses to pay she would need to go back to court to get the order enforced which would add a further £100 in court fees. She would be able to recover all of these costs from her nephew.

If he can't defend it (or choses not to) she will win, ie get judgment against him. If he does not pay within a certain period of time, he will get a County Court Judgment against him. This can be a complete pain - and is probably something he would rather avoid. If he doesn't pay up she would need to have enforcement action taken against him.

Thanks very much for your replies, very helpful

Just to clarify, it's my sister's own son who owes her the money but I'm assuming that wouldn't make any difference to a claim

Would she have to physically 'go to court' or could it all be done online/telephone?

No, that wouldn't make any difference to a claim.

She can start the claim online. If her son contests the claim it may be dealt with using written evidence without a hearing. If a hearing is required it will be informal and strict rules of evidence do not apply. Your sister will not need any legal expertise to represent herself. Indeed, part of the idea of the small claims court is that parties should represent themselves. If your sister does not wish to attend the hearing she can ask the court to deal with the claim in her absence.

That's great, thank you. We really do appreciate your free legal advice, I know some of you are lawyers

Thanks again

when I did a small claim, I didn't go to court, the court just dealt with it. I had lots of evidence though and submitted a very detailed explaination of the case and gave dates and times of things that had happened.

not sure if that helps...

Just a note of caution - she has proof she gave him the money, does she have proof that it was a loan? Might the son pop up and say it was a gift? If it's just his word against hers it could be more difficult.

We have just been through small claim courts, I think it cost us about £400 in total, it was alos a long process, but according to our friend who is a barrister the court did a few things wrong which led to it being a long drawn out process. We didn't go to court as the defendants failed to attend so we won, but they then, 6 months later, got a hearing to set judgement aside and we had to go to judges chambers, but they didn't turn up.

We also had lots of evidence, so in our case it was a clear cut case.

Cheeryble we have thought that too no she can't prove it was a loan, but then again he can't prove it wasn't so we're hoping it'll be OK. She has got several texts from him saying things like "I'll bring you some money on X date" and one thing she could say is that she has 2 other children and wouldn't give money to one and not the other 2

What happened was: the stupid idiot (my nephew) had been having 'pay day loans' and not paying them back so the Company he owed the money to watched his bank account and as soon as he got paid took virtually of his wages for the month, leaving him nothing to pay rent/buy food etc. etc. so my sister transferred the money to his account a few hours after the loan company took it

Good to hear she shouldn't have to physically go to court though. Not so good about the £400 bill and 6 month wait though! Hope that doesn't happen

As said upthread, if the court finds in favour of your sister, she would be able to claim back any court costs (inc fees for applications, hearing, if necessary travel etc).

The enforcement can be the difficult part - if the losing party doesn't pay, the winning party has to choose a method by which they think they are most likely to get paid, and go through further admin/hearing processes.

I've been involved in a couple of small claims processes on behalf of my work. I think it's definitely a question of weighing up the risks and benefits beforehand. It's not always worth the battle, especially if the defendant has no money to repay. Presumably your sister's case will be especially tricky given the relationship at stake.

On the question of evidence - with civil cases judgments are made on the 'balance of probability' rather than 'beyond reasonable doubt'.

Finally, my personal experience of the small claims track is that the court systems that deal with them are archaic and inept! On a number of occasions, documents I have sent have arrived at the court house but then been lost; the court have not notified me of hearings/actions; the court have sat on the case and not passed on documents to the judge; inaccurate documents have been sent out. Hopefully other people's experiences have been different, but I would advise not assuming that the court will be efficient, and chasing them if necessary.

Watch out for something called the "presumption of advancement".

This says that in certain relationships, the law assumes that something is a gift unless there is evidence to show that it wasn't.

Parent giving money to child is one of those situations.

This means that your sister can't rely on her son being unable to prove that it wasn't a loan; unless her evidence is accepted by the judge (and the son may deny it, so it becomes just her word against his) then her claim will fail because of the presumption.

see here

The presumption of advancement is a relic of the past that carries little weight these days. It also doesn't apply to payments from mother to child. See this from the Law Commission.

lawcommission.justice.gov.uk/docs/Presumption_of_Advancement.pdf

Thanks Collaborate, that's helpful, I should update.

Thanks again everyone, most helpful all of you

I will see my sister this weekend, hopefully we can get the online application done

fascicle I see what you're saying about the relationship being at stake, but unfortunately - but probably unsurprisingly - that's already broken down