Small Claims Court Stuff - The Bear and Badger

Elmlea

Hello all,

A typical sort of small claims/legal advice request post. I've cross posted this to 2 or 3 forums to canvass as many people as possible.

Before we left for the US, my wife and I sold or rehomed all our horses. One of them, who my wife had trained, we agreed to sell to a friend of hers that she'd ridden with and done various horsey things with for ages. We agreed she could have him for £1500 (which was a total bargain), and that she could pay us at £200 per month until it was covered.

She made 2 payments, then stopped. Said she couldn't afford £1500, and her boyfriend had just lost his job, so she'd need to pause the payments. We said sure, start when you can, and agreed a discounted price of £1200. A couple of months later, she made another payment of £100 and we thought all was back on track.

Recently, my wife went to check her old UK bank account to see if the payments were still being made, or if they had finished, only to find she never bothered paying any more. We're still owed £700.

My wife dropped her an email and a message on Facebook to ask if she had a problem, or could she start paying again? She very quickly received a very apologetic reply, explaining that now her boyfriend has another job she can start it again, we'll get a payment in 24hrs, she wants to compete on the horse after the summer, please don't think she took advantage etc etc etc. She followed up 20 mins later saying her boyfriend was able to go to the bank the next day, and never mind an instalment, she'd pay the whole £700 tomorrow.

My wife sent a "thank you" reply and we went back to normal. Today, we received a lengthy message, on Facebook typically, from this woman's mother (the woman who took on the horse is 28 btw, not sure why her mum's involved) laughing away, saying that we'd better get a lawyer, because we have no proof that they agreed to pay £1200 for the horse, and that we wouldn't be getting another penny, and that she'd contacted the livery yard he was kept at saying that any attempt to take him back would be classed as theft, and a bunch of other threats.

She then blocked my wife from Facebook saying she wouldn't be able to contact her because she wouldn't give out her address, and "good luck getting your horse back or any more money."

So, we'd like either our money or the horse. A friend in the Police has confirmed that Facebook messages, SMSs, emails etc are all admissible in a Scottish Sheriff's Court, so we have that to help. But, on the other hand, we'd quite like to consider just taking the horse back and we're not sure what our best options are there. We're quite worried they'll move him to another yard and we'll have no way to trace him.

Anyone got any hints?

Sasukekun

GONZO!

Seriously, you should always get monetary agreements in writing.

Elmlea

Yeah, I've gently chastised my wife for that but she's predictably quite upset about her old poor horsey, especially as now she's looked into it he's not doing that well. On the other hand, without it being notarised we've been told it's not useful anyway, but as said above, the array of messages are about as useful as a contract.

@Gonzo, come help!

metagonzo

Drone strike on the mother?

Are there any records of any kind regarding the original agreement? I don't know crap about this stuff but surely if you can show that the original agreement was one thing and what actually transpired was another you must have a good old fashioned fighting chance?

If you can't prove that, what can you do? Do horses have the equivilant of a V5? (I have no idea about horses).

pantyfire

You are in America go on Judge Judy, she will kick ass.

Seriously tho, the correspondence saying she will pay, very sorry etc.. Is pretty damning and I gues it would be taken as proof of verbal contract of some sort.
You don't just pay someone for no reason after all.

metagonzo

Aaaand answered as I was typing.

Elmlea

Yeah, lots of emails, messages, texts etc, which a solicitor's told us should be proof enough. Horses actually do have a logbook (called a passport) but it's for medical stuff only, doesn't show formal ownership.

Can we just pitch up at the livery yard and take it back? I keep thinking if she's saying we "have no proof" we've not been paid, then they surely have no proof he's theirs...!

Sasukekun

As you say, you have text based agreements, a lawyer can look at them and adjudge whether they're law abiding.

Elmlea

pantyfire wrote:

You are in America go on Judge Judy, she will kick ass. Seriously tho, the correspondence saying she will pay, very sorry etc.. Is pretty damning and I gues it would be taken as proof of verbal contract of some sort. You don't just pay someone for no reason after all.

I'm in America, but she isn't and the horsey isn't, unfortunately.

Matt_82

I will get your horse back for £500. Up front payment though.

metagonzo

Are they likely to release it to someone who doesn't pay the bills for its accommodation?

Shyam39

Gonzo can give you better help no doubt, but from my limited training, I'd suggest you arrange a meeting with your solicitor and discuss the situation with him/her (to me it looks like a simple debt claim). Then the likeliest outcome would be that the solicitor would send a letter that would go something like this

"TO:
Horse Thieves
Address

Dear Sirs/Madam

Mr & Mrs Elmlea's Horse / Horse Thieves
Contract for sale of Horse

We act for Elmlea.

We refer to the contract (oral agreement) dated (insert date), entered into by Elmlea and Horse Thief.

In accordance with the agreement forming the Contract, the sum of £700 should
have been paid by Horse Thief to Elmlea by (insert date). This amount remains outstanding.

If this amount is not received within 21 (or 14 etc) days of the date of this letter, Elmlea will issue
proceedings against Horse Thief for the recovery of this sum.

Yours faithfully

Bear & Badger Partners Limited"

Then wait for their response. The woman's (moronic) mother wrote in the message that you did agree £1200 and there is in fact a contract (it's all in writing). Furthermore, according to your post, you've acted very reasonably in regards to this woman's financial difficulties and yet they're trying to screw you over.

Also note that their solicitor's costs will more than likely exceed the £700 so they'll probably come to their senses and pay what they owe.

Again, my experience is limited so perhaps Gonzo could chime in with more details.

Hope that helps.

tigersgogrrr

Good advice from Shy. You should also punch the "friend" of your wife and call her mother a moron.

tigersgogrrr

My advice is perhaps not quite so practical.

Elmlea

metagonzo wrote:

Are they likely to release it to someone who doesn't pay the bills for its accommodation?

In what sense? We could pitch up with a trailer and take him away, it just depends on whether or not the livery yard would feel comfortable with that.

Elmlea

Thank you Shy, that's lovely. What room to manoeuvre would we have if we decided we wanted the horse back in lieu of payment? My wife wants that, I sort of assumed that would mean we're breaking the contract too though, so it'd be easier to extract the money.

If we do engage a solicitor like that, is that different from doing small claims action? If it just costs me a little to our solicitor including the costs of one letter, I'd rather do that for the satisfaction tbh...!

The woman herself said yesterday "sorry I haven't paid the rest, I can get the final £700 to you tomorrow." Is that enough to constitute a contract in itself if it was a message on Facebook?

Yossarian

Presumably if you're going through a solicitor you can demand either the money by a certain time or the return of the horse. You could even offer the £500 back minus the solicitor's fee.

Elmlea

That's what I need to find out; can we just stick in the letter that we want either £700 or the horse back, or do we have any right to say "screw the £700, you had your chance, horse back or court?"

If we do go to court, do we have the right to change the parameters like that; she may have breached the contract and owe us a debt, but I thought we might be limited to chasing the debt, not be able to say we'd like the horse in lieu.

Shyam39

Elmlea wrote:

Thank you Shy, that's lovely. What room to manoeuvre would we have if we decided we wanted the horse back in lieu of payment? My wife wants that, I sort of assumed that would mean we're breaking the contract too though, so it'd be easier to extract the money. If we do engage a solicitor like that, is that different from doing small claims action? If it just costs me a little to our solicitor including the costs of one letter, I'd rather do that for the satisfaction tbh...! The woman herself said yesterday "sorry I haven't paid the rest, I can get the final £700 to you tomorrow." Is that enough to constitute a contract in itself if it was a message on Facebook?

Okay let's see.

The horse back in lieu of payment? The issue there is that you've already accepted part payment of the horse, so it makes it more tricky. (I suppose if they shit themselves upon seeing a solicitor's letter, they might well offer to return the horse and be done with it. I suppose you could add in the option to the letter, i.e. the £700 that remains outstanding or return the horse...and you could negotiate to return their earlier payments...this is something better discussed with your solicitor though).

Well the letter is prior to proceedings(/small claim). Usually the letter is used to exchange info & negotiate without resorting to issuing proceedings(/the claim), and for small debt claims like this, it's settled pretty swiftly because when the reality of costs of proceedings sets in, the person(s) facing the claim won't want to continue. (Especially as this woman has set herself up and gifted it to you in writing....lol).

Regarding whether that's enough to constitute a contract, yes. But the contract was formed long ago when you exchanged your horse for payment. Just because it's not in writing per se, it doesn't mean it's not a contract

Yossarian

I wouldn't have thought you'd be able to immediately take back the horse as that would be you breaching your side of the contract, but it sounds like if you gave her a month to pay she wouldn't be able to come up with the cash.

Elmlea

Ok, so if I'm following right, I can send a letter saying give us our £700 (plus interest?) plus costs, or give us our horse back, and if I don't hear within 14 days we'll start legal proceedings. Then if they don't reply, go to small claims court for the money, but without any real leg to stand on with getting the horse?

Elmlea

Also, would it be worth me contacting the woman on Facebook? He last comments are hilarious; "yeah, that legally binding thing Facebook! I look forward to your lawyers letter!" I'd quite like to see the look on her face when she realises it is legally binding...!

Elmlea

Another thing; my wife's tempted to contact people who know this woman and explain what she's done. Is she opening herself up to any issues there...?

Elmlea

This interested me. Can I send this to the woman in question without it being a threat?

43-year-old Deborah Louise Cooper of Broomfleet, Brough, Humberside has today (Tuesday 20 March 2012) been jailed for 12 months at York Crown Court for theft of a horse and fraud by false representation.

Cooper pleaded guilty to the two offences on 15 February 2012.

The offences arose after Cooper was loaned a piebald cob mare called Saska by her owner, a woman from the Carlton area near Selby. The loan included an option to purchase the horse at the end of the loan period.

It is common practice for horse owners who are looking to sell their animals to draw up an agreement to loan the horse for period of time with an option to sell at the end of the loan period.

The loan agreement for Saska ended on 30 November 2010, however no payment was made to Saska’s owner, nor was she returned to her owner.

Subsequent police enquiries led to the discovery of Saska at a farm in the York area in February 2011, the owner of the farm had purchased Saska from Deborah Cooper for £1,200.

Saska was immediately returned to her rightful owner and Cooper was arrested in March 2011 for fraud by false representation and the theft of the horse.

Speaking today following Cooper’s sentencing, the Rural Crime Officer who led the case, PC Sarah Ward said: “We are very pleased with today’s outcome which reflects how seriously the criminal justice system takes this type of crime.

“Although there are not many cases of this nature in North Yorkshire, it happens regularly across the country and I would like to raise awareness among horse owners who need to be vigilant about who they loan their animals to.

“Before you consider loaning out your horse, you must do your homework on the borrower’s background as well as keeping track of your horses while they are on loan.

“The British Horse Society have a loan agreement form on their website which should always be filled in and signed by both parties. Also check where the horse is going, visit the yard, do background checks on the borrower by speaking to other professionals such as their vet, farrier and feed supplier.

PC Ward added: “Owners should visit the borrower on a monthly basis and make sure they see the animal and carry out a welfare check.

“Make sure you have up to date photos of your horse, these can be vital if your horse goes missing. Not only is this type crime costly, but it is also distressing for the owner when a much-loved animal goes missing”

The British Horse Society website contains useful information which all horse owners should read if they are contemplating any loan agreement. www.bhs.org.uk

Shyam39

Re Letter, you yourself won't send, your solicitor will. (Not sure about including interest, that's for you and your solicitor to discuss

) But yeah, you have the right idea. Getting the horse back is a bit more complex and it's likely you'd have to return her payments in order for it to seem just (as a settled negotiation). However this is somewhere that Gonzo might be able to chime in.

Re small claims court, it won't be quite that fast to court. If she ignores the letter, then you'll start proceedings against her. When she receives this, she'll have to find a solicitor and then acknowledge your claim and then state whether she plans to defend it or not (eventually file a defence). However it's unlikely to even go that far.

She seems rather petty/moronic and instead of succumbing to that type of back and forth, I'd suggest contacting your solicitor and go ahead with the letter (depending on what advice he/she gives you).

Re your wife contacting others about it. No, not necessarily, though if she does go ahead and do so, a) refrain from insults and derogatory comments; keep it "polite" and b) that she only tells people close to this woman, so not doing a public naming and shaming

Shyam39

Just a point on that article, if you go the £700 debt claim route, it's a civil matter.

The theft route however is a criminal offence and well, I'd suggest sticking with a debt claim (though discuss all the options with your solicitor).

Elmlea

Has she actually committed theft?

Shyam39

Elmlea wrote:

Has she actually committed theft?

I would say no, because you have received part payment. (No, in that it's going to be difficult to spin it convincingly enough for a conviction).

Elmlea

Got you.

Is there any issue with me sending a very polite message to the mother, quoting the article above, confirming that our solicitor has said that her Facebook messages are indeed useable as evidence, and that we'd still like an amicable solution rather than expensive legal action, or should I do nothing without our ridiculously expensive solicitor from now on?

I'm very keen to drop her a line and just tell he she's wrong, and if she doesn't want to sort it amicably then we'll very happily pursue her formally.

Shyam39

No issue there. It works in your favour (down the line), as you tried your best to resolve it amicably before taking it to legal proceedings. (Because the courts hate time-wasters/morons etc

)

Elmlea

My wife wants me to point out that he was on a "loan with a view to buy," and some equestrian people are saying she should just go and take the horse back as he's not "sold" until the full payment's received. If she needs to repay the payments received so far, she's just said she'll do it in instalments too.

Is that likely to be a possibility?

Howdy, Stranger!

Categories