HMCTS gave Mr R incorrect advice about how to file and amend his small claims court application
16. Before we decide if we should do a detailed investigation of a complaint, we look at whether there are signs the organisation got something wrong. We do this by comparing what should have happened with what did happen. We have done this and have not found any signs something went wrong.
17. We looked at the emails between Mr R and HMCTS. We asked Mr R what advice HMCTS gave him that was wrong. Mr R was unable to say what specific advice was given, when it was given or who it was from. We appreciate the time passed may have had an impact on Mr R’s memory of these conversations and the details may be hard to recall.
18. HMCTS issued a DQ to Mr R on 30 July 2021. Due to the claim amount, Mr R needed to return an N180 form by 16 August 2021. An order was later made to extend this deadline to 18 October. We have seen evidence of HMCTS contacting Mr R by email to confirm the DQ required was on an N180 form on 5 October and 1 November 2021.
19. Mr R did not return a completed DQ on the N180 form for his original claim until 4 November 2021, after the due date.
20. Mr R correctly contacted the court when he realised there was an error in the defendant’s name. As advised by the court, he made applications and paid fees to make two amendments to his claim.
21. The court told Mr R he needed to submit an N244 application notice (which requests Mr R’s amendments from the judge) with an amended N1 SDT form (claim form), for his application to be processed. He also needed to include the photos indicated on his claim form, or take the necessary steps to fix the error by filing a ‘Certificate of Service’ with the court, stating his request to send additional details was made in error. We have seen evidence of HMCTS confirming the above advice to Mr R by email on 16 August, 6 October and 1 November 2021.
22. Mr R did not return a completed N1 SDT and photos (or Certificate stating the error) for his amended claim.
23. We have not seen any other information that supports Mr R’s complaint that HMCTS gave the incorrect advice. The emails we have seen from HMCTS to Mr R provide clear advice and seem to be in line with our Principle of being ‘open and accountable’. Mr R did not follow the advice in the emails within the required deadline. For these reasons, there are no signs of maladministration (fault) related to this complaint.
Mr R says HMCTS’s communication was poor and he was not told when his claim was struck out
24. We looked at whether there was a gap between what happened and what should have happened. We considered HMCTS’s actions against the our Principle of being ‘open and accountable’.
25. Mr R says he did not get HMCTS’s strike out decision. He did not give any other specific examples of poor communication. We have seen several emails. We know he also contacted the court by phone more than once.
26. HMCTS’s complaints responses acknowledge there may have been stress or confusion caused by the guidance court staff gave by phone. The number of emails and calls exchanged suggest Mr R was unclear or confused about the next actions to take, and this may have delayed his DQ and application. HMCTS offered a goodwill payment in recognition of this.
27. HMCTS does not say it did anything wrong. Based on the evidence gathered, we cannot say HMCTS’s communication was poor. We have evidence HMCTS gave the correct advice to Mr R by email before the DQ deadline.
28. HMCTS took reasonable steps within its guidance to help Mr R to correct the confusion about what was outstanding and put right any stress. It pointed Mr R to legal advice. There are no signs of any fault.
29. Turning to the strike out decision, the court should send copies of the judge’s decision to all parties. Mr R says he did not get a copy of the decision at the time. The court says it sent the decision but it no longer holds a copy of the correspondence because of its retention policy.
30. We can appreciate that not being aware of the strike out decision until a much later date would have been frustrating for Mr R.
31. In terms of impact on the claim itself, when Mr R was informed of the decision has made little difference to the claim’s progression. The claim had already been struck out. Mr R did not attempt to restart the application himself when he found out it had been struck out and did not intend restart it because he has handed the matter over to his insurer.
32. Because of these factors and how the court and Mr R do not have copies of the email giving the strike out decision, an investigation would not be practical as there is no evidence to be gathered. For these reasons we are not looking at this issue further.
HMCTS decided not to refund Mr R’s fees
33. We looked at whether a refund can and should be issued for all court fees paid. The HMCTS Civil and Family Court Fees guidance says if a claim has already been issued, HMCTS typically only refunds fees where the court made a processing error. MCOL explains, ‘It is important to note that if you make an error upon issue of the claim you will not be eligible for a refund of the court fee.’
34. Court managers have some discretion on issuing refunds outside circumstances where the claim has been fully and correctly processed. Although the guidance does not give HMCTS’s position when a party has decided to discontinue their application, it says ‘the Court Manager has the discretion to approve refunds that are the result of a genuine error’.
35. The original claim was struck out on 11 November 2021 as the DQ was not returned to the court in time. As the claim was fully and correctly processed, the application fee is not refundable in line with the above guidance.
36. The amendments have not been processed because Mr R has not provided HMCTS with the required form and photos (or certificate stating the error). In its complaint responses, HMCTS offered to refund the fees for the applications to amend because these have not been processed. HMCTS accepts there was an error in losing Mr R’s documents by post (see below) and the advice staff gave by phone could have been clearer. This supports the discretionary decision to offer a refund. Mr R has not taken up this offer. Overall, we have not seen anything to tell us HMCTS should have given a full refund.
HMCTS lost Mr R’s application sent by post
37. Before we decide if we should do a detailed investigation of a complaint, we look at whether there are signs the events complained about had a negative effect which the organisation has not put right. We have found HMCTS has already done enough to put right what went wrong with this issue.
38. Mr R sent his application to amend his claim by recorded post. The court received and signed for the application on 16 August 2021. The court lost the application. Mr R contacted the court to confirm receipt on the same day. When it could not be located, he was asked to send the documents by email, which he did.
39. HMCTS should not have lost Mr R’s application. We understand this would have been frustrating for Mr R. There is a gap between what happened and what should have happened. It should try to put things right.
40. Mr R paid £6.85 in postage. Because his application was lost, this caused him annoyance, frustration and inconvenience. There was a very minimal delay in the court viewing Mr R’s application (same day) and there was no impact on the processing of his application.
41. HMCTS recognised its mistake, apologised and offered a payment of £81.85. This was for the money spent on postage and to acknowledge the general stress and confusion in Mr R’s dealing with the court.
42. Our ‘Principles for Remedy’ say:
‘4. Acting fairly and proportionately Offering remedies that are fair and proportionate to the complainant’s injustice or Hardship
5 Putting things right If possible, returning the complainant and, where appropriate, others who have suffered similar injustice or hardship, to the position they would have been in if the maladministration or poor service had not occurred.’
43. The refund and goodwill payment offered puts Mr R back in the position he would have been in had the post not been lost. This action is in line with HMCTS’s guidance and our Principles.
44. We acknowledge Mr R is not happy with this offer and has not accepted it. It is up to us to decide if HMCTS’s actions have resolved a complaint. HMCTS has done enough to put right Mr R’s injustice and we are not taking any further action.