Anyone know if you have to be present to open a small claims proceedure?

Xiney

We moved countries recently, paid a Dublin company to ship our personal effects, this was not done with "due care & diligence" and so far attempts at redress with the company have been fruitless.

I am investigating the possibility of going to small claims if our latest attempt at getting a partial refund fails, but since this must obviously be done in Ireland I'm not sure if I can do so from abroad - do these things actually go to court or is it fully administrative?

Paulw

Yes, if not sorted, it does go to court, and is heard by a judge. You would need to be there (or have a solicitor present for you) to put your side of the story across.

Xiney

Must it be a solicitor?

Can it be an agent?

Paulw

Not sure. Try asking in the Legal section.

When I had a case heard, I was there and the company sent their solicitors. In all other cases heard, it was the people making the claim and those defending it. There were no 3rd parties (aside from solicitors).

antoinolachtnai

If you are in the EU, this might work out:

http://en.wikipedia.org/wiki/European_small_claims_procedure

If not, well, it will be tougher. As far as I know it would not be permissible for a non-legal professional to carry on a case in court. An agent could represent you at the meeting with the registrar (which is basically an attempt to mediate the claim) if the registrar allowed it, but I have a feeling it would put you in a very weak position.

Best thing would be to ring the District Court Office and ask them what is permitted.

jor el

http://www.citizensinformation.ie/en/justice/courts_system/small_claims_court.html

All depends on whether it even goes before the court.

Respondent admits the claim

The respondent has 15 calendar days to reply. Where the respondent admits the claim, he/she completes a Notice of Acceptance of Liability, and returns it to the Registrar

The respondent has 3 options:

1. The respondent agrees to pay the amount claimed. Here, the respondent agrees to pay you immediately. Payment is made by cheque, postal order or money order, made payable to the claimant, and sent to the Registrar. If payment is conditional, e.g., the goods must be returned, then the Registrar must seek the claimant's agreement
2. The respondent consents to judgement. Here, the respondent will only pay you when judgement is made in the Small Claims Court Office. You will not have to attend at court. The claimant swears an Affidavit of Debt and makes a request for Judgement and Decree. The Registrar will assist the claimant in this procedure. The Registrar will notify the respondent of the judgement. The respondent has 28 calendar days to comply with the judgement.
3. The respondent wishes to pay the amount claimed in instalments. The Registrar must inform the claimant of this request and must seek the consent of the claimant to the terms proposed.

So, you don't even need to appear if the respondent admits the claim. You don't have to be present, and can have a representative attend in your place. It doesn't say that this person should be a solicitor, but I'd imagine they'd have to know the full details of the case, and a solicitor would know more about the legalities of the situation.

Court Appearance

If your case has been referred to court for hearing it may be advisable to get legal advice. Under Irish Law should there be court proceedings a business has to be legally represented.

You will receive a letter from the Small Claims Office telling you the date and time of the court hearing and the location of the court itself.

If you have any difficulty with attending court on that date, notify the Small Claims Office and the respondent immediately. You may ask to have the date adjourned, or put back, to another date. Only the judge can make this order and you will need a very good reason for not being able to attend or go ahead with the case on that date. If you cannot attend yourself, you can send a representative to make the request to the court on your behalf.

You can certainly make the application without having to be here, and if does go to court, then decide what you're going to do then.

antoinolachtnai

My understanding from that is that you can send a representative to seek an adjournment. I would not take from that that you can send the person to argue the case on your behalf.

But it is worth asking the District Court Office.

Xiney

Interesting - so if they want to dispute the claim and take it to court, they have to have a solicitor since they're a business? (The total amount of the dispute is probably less than a single hour of solicitor time)

If I hire a solicitor can I claim for legal fees in addition to the claim (provided it remains under the 2000 euro threshold?)

antoinolachtnai

I am pretty sure you can't claim the solicitor's fees under any circumstances. This is something the District Court Office could tell you.

I would not rely too much on the citizensinformation.ie line that a business has to always be represented by a solicitor. It could be true in some circumstances, but it is unlikely to be true in every case. Certainly, if you plan to hang your strategy on this idea, you should consult a knowledgeable solicitor.

foggy_lad

Afaik if you are resident outside the state you may not be allowed use the small claims service but there is always the European small claims service which you may be able to utilize.

_Whimsical_

I asked this question of someone in the court before and I was told you can have an agent of your choice present on your behalf if you have a good reason for not attending. The person does not need to be a solicitor but must be familiar with the facts of the case.

Interestingly enough I also asked some questions about this on the legal forum and the replies I got from people working in the court system were that judges,particularly outside of Dublin, were very intolerant of legal representation turning up with someone who is taking a small claim to court. I'm not sure why it was ,some were of the opinion that it was against the philosophy of the SCC and what it was there for. Others felt solicitors tended to drag things out and a long winded annoying spectacle of something that should've been a quick in and out job. The consensus was that turning up with solicitor in tow was a no no.

Xiney

The email I got from the SCC is that it would be up to the judge whether they would accept someone presenting on my behalf - but since we'd have a good reason I would have to hope that it the judge would see that.

Seeing as we paid the shipping company to move our personal effects due to emigration, I think we have a good reason for not being there.