Small Claims Court England/Scotland

[franckiesmum]

Hi, I wondered if someone could help with my question.

My husband and I live in England and someone owes us money who lives in Scotland. Can we take them to the English small claims court or will it have to be filed in Scotland?

Many thanks.

Depends; where was the contract made? What are the circumstances?

It's a really long story. The short version is my husband and his ex partner own a house which has been on the market for sale for the past 3 years, since they split up.

In the time leading up to them separating, the agreement was that she would pay the mortgage and upkeep on that property (about £250 a month) and he would take on responsibility for another property they owned as it was much more of an outlay.

He paid her out of that house and took on sole ownership. The second house, in Scotland, was £20k in negative equity so they decided to keep hold of it until it reached it's mortgage value. Without telling my husband, she stopped paying the mortgage and let it out to a tenant. The tenant vandalised it, practically stripping it of everything except the plaster on the walls. His ex kept below the radar and wouldn't acknowledge responsibility for the house, even withholding her new address. She changed her name.

We knew nothing about it until a Sheriff knocked on our door demanding the unpaid mortgage which we paid and we went to court to overturn a repossession order. We've paid the mortgage ever since. My husband went up to the property, 600 miles from us, to discover it totally wrecked. The ex refused to contribute towards the repairs. She won't contribute towards the mortgage or any of the standing charges or council tax.

My husband is a builder so repaired the house himself, over the course of several visits to the property. We want 50% of the cost of the mortgage payments, legal fees, repair costs and upkeep on the property until it's sold. If it sold today, it would still be at least £20k in negative equity. She has assets overseas which she is hiding.

She won't provide her address but has said, in writing, that all correspondence should be sent to her son's house. I'm hoping that's sufficient to process the application.

Sorry for the short version of a very long saga.

If you are domiciled in England there should be no bar to you filing a claim in your nearest County Court.

How much is the sum owed to you and do you have a signed agreement or other documentation to the effect that you loaned the sum to x on y date on the understanding that it would be repaid in full by z date or similar?

The amount that can be claimed in the Scottish small claims courts is lower than that which can be claimed in England/Wales - as far as I recall, the limit in Scotland is £3,000 but this may have been been increased, or will shortly increase, to £5,000.

If you file in the Scottish courts you will need to attend the appointed court on the given day and should therefore add the cost of travel/overnight stay to your expenses in the matter.

If you file in the courts of England/Wales and judgement is made in your favour, you will need to enforce it in the Scottish courts if the Respondent fails to pay.

X posted. Your case is more complicated than my earlier response has allowed for. Is the property that was stripped by the tenant mortgaged in the joint names of your h and his ex?

It seems probable that the sum(s) your h will be claiming exceed the limit for the small claims courts of England/Wales and Scotland.

It also seems that the claim will be for both historic debt and ongoing outgoings, so to speak, in which case your h is best advised to consult a solicitor.

However, before expending further sums on legal advice I would suggest you do everything in your power to discover the ex's address or to obtain confirmation in writing from her son that all correspondence addressed to her at his address will be handed to his dm.

Thank you. The amount we want from her is just under £8000 so we would need to file in the English court where the limit is £10k in the small claims court as opposed to £5k in the Scottish court.

The difficulty is he doesn't have any agreement, it was all verbal but there are copies of all the invoices we've paid and copies of letters from the mortgage lender in both names. We've been sending her letters now for 3 months asking her to enter into some kind of dialogue to resolve the matter. She has them as her daughter told us but says she's just going to ignore them as we can't do anything.

If she continues to ignore them, and ignores the court order then presumably it will all go against her and we can push to enforce the order in Scotland?

Bear in mind that small claims is still a court hearing before a judge . It is not the simple procedure people often think.

Was he married to her? That might make a difference by the way.

No, he wasn't married to her. How does that affect things if you don't mind me asking?

If they had been married then it wouldn't matter whose name things were in and the split might well not be 50/50 and you would need a court finances consent order to finalise it all whether Scotland or England, but forget about all that.

There is a big issue with small claims. Usually you don't get any money. Even if you win the other person can disappear or go bankrupt or offer to pay £10 a year or something. You are right that an English judgment will be recognised by scotland but how will you enforce it if you don't have her address to send bailffs in to recover goods? I suppose the only way to enforce, if Scottish law allows, is to get a charging order over the jointly owned house so that when it is sold if you get more than the loan on it then this extra debt is taken out of her share of that. Sometimes costs of enforcement are more than the small claim too so it's not easy.
If she won't give an address and cannot be found would it be worth just writing to her at the family address given, saying what is owed and accumulating under the agreement (pity it's not in writing as she'll probably deny it was reached) and then just wait until your other half is about to sell the property and at that stage sue if she won't agree that all the accumulated costs will not come out of her half?

Although ify ou wait more than the limitation period for claims - I think 5 years in Scotland and it is 6 in England - you lose the claim so delay isn't always a good idea.

I had a thought that all her assets are in France, perhaps it would be better to enforce the order there, rather than Scotland albeit it that she lives there. She still pays her taxes in France so she doesn't have to pay CGT when she eventually sells her French assets. We actually offered to take one of her assets in France as payment of her debt, plus, we would take on the negative equity on the house in Scotland when the mortgage is due for repayment in 2017. She refused.

We will visit a notaire when we are next in France and try to get their perspective.

Yes try that. It makes most sense often to sue where you can enforce but she is not living in France is she? You could sue in England and enforce in France against her assets there I suppose. There is a regulation called the Brussels regulation which allows that.

Yes, I just did some investigation into that and it's a pretty straightforward procedure apparently. The only thing we need to do now is draw her out of her lair so we have her address to serve papers on her. She's being very clever but it's nothing that a private investigator won't be able to help with.

Try 192.com too as that has the electoral roll on it and her work or parents might give you the details.

She isn't on the electoral roll unfortunately. If I thought she was able to have dialogue with her parents, that would solve a great deal as they're dead . This is a 68 year old woman, not a sweet old woman but a devious and spiteful one. She'd rather spend the rest of her days looking over her shoulder than doing the right thing.