Small Claims Handbook Introduction to Small Claims



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Small Claims Handbook


  1. Introduction to Small Claims

    1. What are small claims?

’Small claims’ are those which are normally seen as being too small to justify the expense of engaging an attorney. In such cases, the Court encourages claimants to act for themselves.1

    1. The Summary Court

Going to the Grand Court in a civil case can be expensive. The small claims procedure of the Summary Court was designed to provide a simpler solution to a civil dispute.

    1. Is Summary Court right for you?

While small claims proceedings can settle uncomplicated disputes, there are specific rules that must be followed if you are to succeed in your claim. For example, you must complete all required forms (see appendix in this Handbook) and present your own evidence in the Summary Court, where your case will usually be heard by a Magistrate sitting alone, without a jury.2 This Handbook introduces you to many of these rules and assists you in pursuing your small claim.

    1. Who can sue in Summary Court?

Any person or business claiming an amount (whether fixed or to be assessed) that does not exceed CI$20,000.003 may bring an action in the Summary Court. The action may be in respect of a contract, a tort (or both) or trespass to land (but not where there is a question of title to land).

A ‘tort’ may be defined simply as a wrongful act, other than a breach of contract, that results in injury to another’s person, property, reputation or some other legally protected right or interest, and for which the injured party is entitled to a remedy at law. Remedies for tort actions are usually in the form of damages (monetary compensation).


    1. Exceptions

Minors cannot sue or be sued in the Summary Court.4 Anyone who is under the age of 18 is considered to be a minor under Cayman Islands law.5

    1. What kind of claims can be filed in the Summary Court?

The following is a general list of claims which can be filed in the Summary Court:

      1. Breach of a written or oral contract.

      2. Return of money used as a down payment.

      3. Property damage caused by a motor vehicle accident.

      4. Damage to property.

      5. Consumer complaints for defective merchandise or faulty workmanship.

      6. Obtaining payment for work performed.

      7. Claims based on bad checks.

      8. Claims for back rent.

      9. Return of a tenant's security deposit.

    1. Time limits

When did the 'cause of action' begin? The cause of action is the event or situation in which the matter you are claiming first occurred. It is important to determine when the cause of action began because there are time limits to bringing certain claims.

    1. Alternatives

To save the time and trouble of a small claims lawsuit, you would be well advised to initially contact the other party in the dispute to try and discuss the problem calmly and objectively. Make a serious effort to arrive at an agreement that will settle the matter fairly. A reasonable solution worked out to the mutual benefit of the parties will eliminate the stress of a courtroom confrontation. It will also reduce or eliminate the long-term personal hostility that often results from this type of grievance.

    1. Letter before action

If you have been unable to reach any agreement with the other party in the dispute, consider writing a 'letter before action' before proceeding. Letters before action are letters which usually state the cause of action, the amount of money being sought and a time limit in which to pay the amount. You may also wish to state that you are considering bringing a claim against the other party in the Summary Court.

Do not be concerned with giving the other party this basic information. Such letters let parties know that the matter is being treated seriously and can be used to stimulate a response. You may even gain previously unknown information about your dispute that might affect your decision to proceed with the action.


    1. Sample forms

Throughout this Handbook a series of sample forms appear. These follow the fictional scenario of John Smith who is trying to get money from ABC Dry Cleaners Ltd., who allegedly ruined his brand new suit. The sample forms are included to assist you when completing your own forms with the writing appearing in script being an example in that scenario only. Do not copy the sample forms directly from this Handbook! Any form submitted to the Court should be in 11-point font and have a margin of at least 1inch on the left side.6

    1. Summary Court Rules

If you have exhausted all other courses of action and have satisfied the above, it is recommended that you obtain a copy of the Summary Court Rules (SCR) before proceeding. Copies of the SCR are available from the Legislative Assembly in George Town between the hours of 9:00 a.m. 3:00 p.m., Monday through Friday, for a fee of CI$7.20.

Copies of the SCR forms are included in Appendix B of this Handbook. The SCR also incorporates many forms from the Grand Court Rules (GCR) and applicable GCR forms have been included in Appendix C.



  1. Commencing proceedings

    1. The Plaint

If you are bringing a claim for the payment of a debt or damages, you will need to file a ’Plaint’. The Plaint comes in a standard form. An example of a completed Plaint can be found at the end of this chapter (see sample form 1); a blank form can be found in Appendix B.

    1. Completing the Plaint

      1. Cause Number

This should be left blank for now as the Court will assign one to your claim. However, once the cause number is known, you should refer to this cause number when dealing with either the Court or the other party (or parties) to ensure proper filing.


      1. Parties to the action (Plaintiff and Defendant)

If you are bringing the claim, you are the ’Plaintiff’. You should fill in your name in its entirety, that is, your first name(s), middle name(s) and last name.

The person you are suing is the ’Defendant’. It is important that you have the correct legal name and address of the person or business you are suing so that they can be properly identified by the Court.

If your claim is the result of damages arising out of the use of motor vehicles, you should also add the names and addresses of the insurance companies - yours under your name and under his/her name, the details of the Defendant's insurance company.


      1. Address of the Defendant

The Defendant’s correct address is also essential. If you are suing a company it may be helpful to check with the Registrar of Companies (ROC) to ensure that you have the correct name and address of the business. The ROC is located on the ground floor, Citrus Grove, Goring Avenue, George Town.

If the party you are suing no longer resides within the Cayman Islands, you may apply to he Court for permission to serve the Plaint on them - ’leave to serve out’ - wherever they are.7 Such applications are beyond the scope of this Handbook.



      1. Date of issue

The date of issue is the date on which you intend to file the Plaint with the Court, not necessarily the date on which you signed the Plaint. A good idea may be to leave this blank and complete it by hand when you file the Plaint.

      1. Particulars of claim8

The Particulars of Claim are simply the details of your claim against the Defendant. Generally you should ask for the amount of money you spent or lost because of the alleged wrong. Take your time and set out your claim as clearly and plainly as possible. Taking a ’who, what, when and where’ approach to your statement of claim is helpful. You should refer to yourself as ’the Plaintiff’ and to the party you are suing as ‘the Defendant’.

If you are claiming for the cost of certain goods, then include a statement of the value of those goods. Receipts and other similar documents can be very helpful in determining the amount of money you are owed. Make sure that the currency of the sums you are claiming for is specified, i.e., CI$, US$, £, € etc.

If you are claiming under the terms of a contract, you should note the term(s) of the contract which relate to your claim as well as the date the cause of action (see 1.7) occurred.


      1. Prayer for relief

At the end of the Plaint you must ask the Court for specific actions – this is called the ’Prayer for Relief’. This includes the amount you are claiming for and interest on that amount. You may also ask for the costs of making the application to be returned to you. Such costs include the filing fee, fixed cost and bailiff’s fees. Each is explained further below:

          1. Amount claimed

Write in the total amount you arrived at in your Particulars of Claim here. If you are unable to arrive at a specific value, you should instead write ’damages’. The amount will then be up to the Court to assess.

          1. Interest

Whether your claim is for the recovery of a fixed amount or for damages, you are entitled to apply to the Court for simple interest on the amount, at a rate prescribed by the Court. Interest will be due from the date on which the cause of action arose until the date of payment (if before judgment) or the date of judgment itself.9

The rate of interest prescribed by the Court is periodically subject to change. The Civil Registry at the Courthouse may be able to provide you with the current prescribed rate. For example, after 1 December 2008, the rate of simple interest prescribed by the Court is 5% for CI$ and US$.10

To calculate the simple interest on your claim, first calculate the rate of interest per day:

rate of interest per day = (sum claimed x 0.05) ¸ 365

Multiply the rate of interest by the number of days between the cause of action and the date on which you file your Plaint to calculate the interest on your claim.

rate of interest per day x number of days = Interest

If there is more than one applicable rate, or you are unsure which rate may apply, it is advisable to simply remove the amount of interest so that the Plaint reads,

"Interest calculated at the prescribed rate from… to date."

You can then fill in the date of the cause of action. If your claim is for a debt under a contract which provides for rate of interest, this rate should be claimed instead. You cannot claim additional interest from the Court in such a case, even if the Court's prescribed rate of interest is higher.11


          1. Costs

You may also apply for an order for ’costs’. This means the Court may make an order which requires the Defendant to pay your Court costs. You may either apply for fixed costs (currently CI$150.00), plus the filing fee (currently CI$25.00) and the bailiff’s fees for service (as applicable).12

If a claim is made for costs (other than fixed costs) the amount will be determined or ’assessed’ by the Magistrate to be reasonable at the end of trial. Regardless, the total amount of costs you may be awarded in any action will never exceed $2,000.13 The award of costs is made entirely in the Court's discretion so there is never a guarantee you will be successful.14 Nevertheless, it is good to ask!



      1. Endorsement

Remember to sign the Plaint at the very end. You must also provide your ’address for service’. This is important so that the Court (and the Defendant) know where to contact you and to send you documents relating to your case.

    1. Acknowledgment of Service15

You must also provide the Defendant with an ’Acknowledgment of Service’ (see sample form 2). This is very important because if you fail to do this, the Court will not consider the plaint properly served (see 3.5 below).16

    1. Filing the Plaint17

Once you have completed the Plaint, make at least four (4) copies of it – one for you, one for each defendant and two for the Court.18 These copies must be filed with the Court, a process which is completed in two-stages:


      1. Payment

First, you must first take the copies of the Plaint to the Judicial Accounts Department which is located on the ground floor of Kirk House, 61 Albert Panton Street, George Town. There you must pay a fee of CI$2519 to file the Plaint. A cause number (see 2.2(a) above) will be automatically generated and assigned to your case and written at the top right hand corner of each copy of the Plaint. Take note of this number as it will be useful to refer to it when writing to either the Court or to the Defendant. One of the copies of the Plaint will also receive a payment stamp. You will also receive an official receipt for payment – save this!

      1. Filing

Secondly, you must then take all copies of the Plaint to be filed at the Civil Registry, located next door to the Judicial Accounts Department in the Courthouse. There, the copies of the Plaint will be ’sealed’ with a stamp of the Summary Court and will also be date stamped, indicating the date of filing. A Court File will be opened and any additional documents relating to your case and filed with the Court will be kept together for the use of the Court staff and later, the Magistrate.

After you have filed your Plaint with the Civil Registry, each Defendant must be given a sealed copy of the Plaint – a process called ’service’ – which is dealt with at 2.6 below.



    1. Filing errors

As a word of warning, each Court form has very specific purposes, many of which are legal in nature and are there to ensure fairness to all parties. Take your time when completing any Court form as a failure to do so correctly could result in your form being rejected by the Civil Registry, for example, for ’irregularity.’ Should this happen, ask the Civil Registry staff member what the issue is and how it can be corrected.

Once you have corrected the error, return to the Judicial Accounts Department and ask that the fees you have already paid be transferred to the corrected Plaint. You should take the same number of copies of the Plaint as before, as well as the original Plaint which bears the fee payment stamp and the official receipt as evidence that you previously paid the fees. Return to the Civil Registry once the fees have been transferred.


    1. Service

The Plaint must be served ’personally’ on the Defendant, unless the Court makes an order to allow substituted service.20 Depending on your circumstances, it may be easier to have someone who is not involved in your case, such as the court bailiff, to serve the Plaint on your behalf.

      1. Personal service

Personal service means, quite simply, handing a sealed copy of the Plaint to the Defendant and telling them what it is. This must be done face-to-face, rather than, for example, through a closed door. It is possible that the Defendant may refuse to accept the Plaint, in which case it is sufficient to leave it with that person. Make a note of the date, time and the place in which service occurred, as you may need to file an ’affidavit of service’ later (see 3.2(b)).

      1. Personal service on a company

If your claim is against a company, the Plaint must be served on the company's ’registered office,’ usually at its front desk. In many cases, the registered office of a company is different from its physical address. You should check with the Registrar of Companies to make sure.

      1. Substituted service

In some cases you may be unable to personally serve the Plaint on the dDefendant for various reasons. In such case, you may apply to the Court instead for substituted service. Those applications, however, are beyond the scope of this Handbook.

      1. Service by a bailiff

Perhaps the easiest method of service is to request that the court bailiff serve the Plaint on the Defendant.21 If you choose to do so, there is a fee to have the bailiff serve the document.22


          1. George Town CI$30.00

          2. West Bay CI$50.00

          3. Bodden Town CI$60.00

          4. East End CI$75.00

          5. North Side CI$75.00

          6. Cayman Brac & Little Cayman CI$125.00

As mentioned above, bailiff fees may be included in the costs section of the Prayer for Relief.23 One of the benefits of using a bailiff is that an affidavit of service will be provided and completed by the bailiff. On the other hand, however, there is no guarantee that the bailiff will be able to serve your Plaint right away. Bailiffs are very busy and have many other duties. If you have a bailiff serve your Plaint, it is your responsibility to check with the Civil Registry often to see if the bailiff's affidavit of service has been filed. See Chapter 3 for more on affidavits of service.

    1. Timing

Timing is an important aspect of all Court procedures. Once served, the Defendant has 14 days, counting the day of service, to complete and file the Acknowledgment of Service24 with the Civil Registry, where it will be sealed, stamped and placed on the Court File. Should the 14 day period end on a Saturday, Sunday or any day on which the Court Office is closed, then the period extends no further than the next available business day.25

Bear in mind that should the Defendant fail to file the Acknowledgment of Service within the 14 days required, you may apply for a ’default judgment’ against them. A default judgment means the Magistrate may enter a judgment without your matter going to trial, ordering the Defendant to pay you the money you have sued for. See Chapter 3 for more on default judgments.


    1. GUIDANCE FOR THE DEFENDANT

      1. Service of the Plaint

If you have received notice that you are being sued, do not ignore it. Once you have been served with a Plaint, you have 14 days from the date of service to respond. You should complete and file the Acknowledgment of Service whether or not you intend to defend the claim.

      1. Acknowledgment of Service

If you decide to go ahead and fight the case, tick ’yes’ next to question 2. If you intend to defend yourself, whether in whole or in part, then you must set out your defence under ’Particulars of Defence.’ You must then prepare to go to Court and present your side of the story to the Magistrate. If the Defendant is a company, any director or duly authorised officer may act as the company's representative before the Court26 (see sample form 2).

If you do not wish to fight the claim, but feel you need time in which to pay, tick ’yes’ next to question 3 and state how much time you need.



      1. Counterclaim

If you have a claim against the Plaintiff relating to the same or related matter, you can make a ’Counterclaim’. To do so, make a heading underneath your Defence and set out the full particulars of your Counterclaim, just as you would the Particulars of Claim.27 If you need more space for the particulars of your Counterclaim, you may use a separate piece of paper, as long as it is attached to or filed with the Acknowledgment of Service. (see 2.2(e) above for guidance).


      1. Filing

Once you have completed the Acknowledgment of Service, you must sign, date and file it at the Civil Registry within 14 days, inclusive of the date when you received it. So, if you were served with the Plaint on 4 January 2010, the last day on which you should file your Acknowledgement of Service would be 17 January 2010. As the 17th is a Sunday, however, you have until the Civil Registry closes on Monday, 18 January 2010 to file. Failure to do so or to provide full particulars of your defence28 may result in the Plaintiff making an application for a default judgment against you.

[Sample Form No. 1 – Plaint]

IN THE SUMMARY COURT AT GEORGE TOWN

CAUSE NO. SC_____OF 20_

BETWEEN:

    JOHN SMITH

Plaintiff

AND:

    ABC DRY CLEANERS LTD.

Defendant
____________________________________________
PLAINT

____________________________________________

To the Defendant

PO Box 4321

Grand Cayman KY1-1888

Cayman Islands

THIS PLAINT has been issued against you by the above–named Plaintiff in respect of the claim set out on the next page.

Within 14 days after service of this Plaint on you, counting the day of service, you must either satisfy the claim or return to the Court Office, PO Box 495, George Town, Grand Cayman KY1-1106, Cayman Islands, the accompanying Acknowledgment of Service form stating therein whether you intend to contest this action. If you intend to defend the action, in whole or in part, you must set out full particulars of your defence in the space provided in the Acknowledgement of Service form.


If you fail to satisfy the claim or fail to return the Acknowledgement of Service form containing full particulars of your defence, the Plaintiff may apply for a default Judgment without any further notice to you.

Issued this 4th day of January 2010

See overleaf for particulars of the Plaintiff’s claim


PARTICULARS OF CLAIM

(Here set out in numbered paragraphs the grounds upon which the Plaintiff claims that the Defendant is indebted to him or is liable to pay damages to him)

1On 19th of December 2009 the Plaintiff took his black suit to the Defendant's premises located on 18 Runners road, George Town, to be cleaned. The suit was purchased new in March 2009 from Tuxedos and Suits Galore for $3.500 and had only been worn once.

2When the Plaintiff picked up his suit on 24 December 2009 it had faded spots on the trouser legs and the front of the jacket. Those spots were not there when the Plaintiff dropped off the suit with the Defendant.

3The Defendant ruined the Plaintiff's suit and should have to reimburse the Plaintiff for the cost of the suit.

AND the Plaintiff claims:



  1. The sum of $3,500.00

  2. Interest in the sum of $5.27 calculated at the prescribed rate from 24th December 2009 to date.

  3. Interest to continue until this matter is settled.

  4. Fixed costs of $175.00, alternatively costs to be assessed.

John Smith

________________________________________________________

Plaintiff’s Signature

Plaintiff’s address for service

P.O. Box 1234

Grand Cayman KY1-9999

Cayman Islands

[Sample Form No. 2 - Acknowledgment of Service]
IN THE SUMMARY COURT AT GEORGE TOWN

CAUSE NO. SC_____OF 20_

BETWEEN:


    JOHN SMITH

Plaintiff

AND:

    ABC DRY CLEANERS LTD.

Defendant

____________________________________________
ACKNOWLEDGEMENT OF SERVICE

____________________________________________

1State Defendant’s name and address -

ABC Dry Cleaners Ltd.

PO Box 4321

Grand Cayman KY1-8888

Cayman Islands

2State whether the Defendant intends to contest the action.


X


Yes No


3If you do not intend to contest the action, do you want time in which to pay the claim?


Yes No


4If you do intend to contest the action, in whole or in part, you must set out full particulars of your defence overleaf.
Service of the Plaint is acknowledged accordingly.
Peter Abanks for ABC Dry Cleaners Ltd.
___________________________________________

Defendant’s Signature


DATED this 18th day of January, 2010

See Overleaf



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