That's bad news, so we have three options:

1. Write to the court and explain that the defendants are being represented by a 72 year old former director who would find it easier to attend a local court.

2. If that fails appoint a local rep, who reads up on the case two minutes before the hearing.

3. Pay up, but ensure the interest is corrected,

Has the defendant submitted their witness statement and disclosures yet?

Just the initial defence statement

Have you yet to recieve your Notice of allocation ? Its just with you referring to the hearing date and hearing fee payment which is normally stated within the NoA ?

The Notice of Allocation will give directions for each party to comply with by the dates stated...disclosure of documents and exchanging witness statements.

You could utilise CPR 27.9 by giving notice to the court and claimant when you submit your witness statement that you will not be in attendance for the final hearing.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.9

Doesn't non-attendance put us at a disadvantage in not being able to answer any questions the judge may have?

Marginally.....hence the need for a good witness statement

Thanks for your help today Andy

Drafting another chasing letter to Shine today.

So far they have failed to provide any VAT invoices for the several hundred pounds they have taken. Surely they are breaking some law or Direct Debit directive by this?

Also, should they have copied us in on any court documents, as we have done with them?

" Also, should they have copied us in on any court documents, as we have done with them? "

Yes what dates are in the Directions for disclosure and witness statement exchange ?

Andy

I believe it is 30 days before the hearing next March.

I believe it is 30 days before the hearing next March.

Then thats when they must send you their documents and witness statement by

up to now, the claimant were under no obligations to copy us in on anything, as the defendants were to them?

I have been dealing with the people who control Direct Debit as we the defendants are yet to receive one invoice from Shine.

They said Shine were breaking no rules in not supplying invoices but they must inform us that if the monthly charge charged.

It took about three weeks to get the figures from the defendants but the amounts which totalled nearly £1,100 and according to the BACs Service Desk

"If the amount has changed and they did not receive advanced notice of this then they are entitled to claim this bank under the Direct Debit Guarantee."

Although they have not received £1,100 of service, they are prepared to write this off and advise Shine that they will not request their bank to reverse these charge if they drop the case.

Any thoughts?

Shine as an Internet provider may find it easier than most to falsify their records and I can't see the defendants stumping up tp have them forensically examined by an expert to prove the fraud.

Before discussing how to tackle this with the defendants I asked BACs service desk what methods can be used to advise clients of cjanges to payments anticipating Shine will deny our clai,

They replied..

Advance notice can be given in written, electronic form or orally.

The organisation may need to provide proof to the paying bank that advance notice has been issued but this doesn’t provide proof of receipt by the payer, therefore the bank would have to make a decision on this if the organisation challenged the claim.

" up to now, the claimant were under no obligations to copy us in on anything, as the defendants were to them? "

Both parties disclose all documents to each other and the court by the dates stated......

" I believe it is 30 days before the hearing next March."

As we have already discussed in previous posts.

Andy

The defendants I am trying to help

have to submit their paperwork by next Tuesday (30 days before the hearing).

Can this be done online or should they send recorded delivery to the court and plaintiff?

I was thinking of drafting them an email to send to the plaintiffs saying something along the lines of:

You have already taken more than was contractually due without any invoices or explaination of how the figires were arrived at.

We have spoken to the body that oversees direct debits and we are told that we are able to reverse these in full due to your actions or lack of them.

We are prepared to write these costs off in full if you confirm by 9am Monday 29 January you are withdrawing your action.

Failing this we will be fully defending the action and requesting our bank to recover your withdrawals.

Would this be a good move or a bad move (in the courts eyes)?

Witness statement cant be done online to the court...you can email the claimant.

Dont send the above.......you must submit a fully particularised witness statement as per the court directions.....otherwise you risk your defence being struck out.

OK, thanks

I am going through the Notice of Allocation to the Small Claims Track (Hearing).

The witness statement and copies of any backup documents need to be received by 4pm 1st February so I will get them to send 1st class recorded on Wednesday morning to the court, and get them to email the claimant just before 4pm on Thursday.

It states "If you cannot, or choose not to, attend the hearing you must write and tell the Court 7 days before the date of the hearing. So I will have them write in to them 10 days beforehand as the defendant really doesn't like courts, plus a 4 hour round trip. I will also ask them to enclose the originals of any documents being used as proof. I assume they do NOT have to advise the claimant of their intention not to go.

I can't start drafting a Witness Statement for them, as I accidentally deleted their defence from my computer and they can't find the email with it on. So I will get their moneyclaim.co.uk case number and password and get it from there tomorrow and download the defence.

I was thinking of providing two witness statements - one from the director of the defendants and one from myself as the their IT Support to confirm I had spoken to Shine's support manager early in their contract, who explained to me that the only way of getting the Shine Internet to work was by turning off the Fixed IP and allow it to pick up dynamic IPs from the range that Shine hold. I later found that the defendant required a constant fixed IP in order to allow their CCTV to work and to allow remote connection to their office PCs.

I will take into account on both statements the points outlined in section 3e, i.e numbering etc.

It occurs to me, and this is where I need help, the defendant’s witness statement will be a repetition of the defence already made. How should if differ from the defence? I know it’s a silly question for someone experienced in law, but I really don’t know.

A lot of good points have been made on this thread and I have picked out the 17 best bits to put together on the statement.

a ws is not repetition of the defence

I am obviously missing something here. I am being thick, but as I see it.

A defence is the defendant's account as he or she sees the events that happened and so is the defendant's witness statement. Rather than changing it from third to first person, I can't fathom the difference.

a defence states the reason a defendant admits or denies or notes the claimants Particulars

a witness statement takes those and other reasons and makes a series of statements, with evidence if possible, to verify their truths

OK, I think the defence I suggested for them was more like a witness statement

Is that not the defence in post #52 ?

Many thanks Andy for taking the trouble to look.

I should have mentioned that defence was from a draft to show on CAG and not the final defence.

This was 98% of it, , and enough to work on to get the info for the Witness Statement.

Does Shine need to pay a hearing fee of £80 by 1 February? And can we check if this has been paid?

Will the case be struck out if they fail to pay this?

Provisional WS - are the figures in 13 correctly calculated?

Shine Networks Ltd. vs Maggiesclient Ltd.

Case no ddfdfdffg

Witness Statement from Pablo Sanchez, director of Maggiesclient Ltd.

Page 1 of 2

I am the sole director of Maggiesclient Ltd. At the time of taking out the agreement with Shine, a fellow director, Raimondo Cortes, was also working. Mr Cortes retired in November 2017.

1. We were cold called by Shine Networks to provide telephone (landline) and Internet Broadband services. They emphasised the saving we would make by switching from BT to them for our telephone line and Broadband service. The figure of £28.50 per month was constantly bandied about and as we were led to believe this was the total all inclusive figure plus VAT, we agreed. We later discovered in excess of £80 per month was being taken from our account. Rather than making a saving we were now paying considerably more than we were to BT.
    
   2. We signed a Service Agreement (marked X) on 10/10/16 and this states:
    
   Broadband:
    
   One off payments: Router charge £39.99, connection charge £0, line installation £105.00
    
   24 x monthly rental charges of £28.50.
    
   Notes:
   Shine Hosted Services (to be collected by direct debit ) - 3 x Shine hosted seats licences (users), unlimited local and national calls, 1000 mobile minutes £24.80. *** Although, after consideration it would appear this was a monthly charge - nowhere does it state that and the full service was sold as costing £28.50 per month as the Agreement would appear without very careful scrutiny.***
    
   Notes:
   Additional one-off/setup charge
   3 x SIP Cordless Handsets £162.72
    
   During the cold call we were not made aware of the installation and handset charges, but we accepted these.
   
2. The telephone system was rarely used, as most of our calls are made and received by mobile phones. Therefore, we cannot comment on the performance of the single telephone line.
   
3. The broadband service was constantly going down for long periods. Their only resolution was to disable our fixed IP and change it to a dynamic (random) IP. As we use CCTV and Remote Desktop to connect to the office PCs this was an unacceptable solution as the Internet address we need to connect to must constantly remain the same and a dynamic could potentially change frequently.
   
4. Our business was considerably disrupted due to the constant breakdown of the Internet.
   
5. We constantly contacted the ISP but the Internet continued to fail.
   
6. They claimed the same problems would be experienced with BT and yet since switching back to BT their Internet has been problem free.
   

The following amounts were taken by Shine by direct debit:

November 16 £472.81.

December 16 £82.02

Jan 17 £80.69

Feb 17 £81.19

March 17 £80.69

April 17 £80.69

May17 £81.71

June17 £80.69.

Shine Networks Ltd. vs Maggiesclient Ltd.

Case no ddfdfdffg

Witness Statement from Pablo X, director of Maggiesclient Ltd.

Page 2 of 2

1. As they have not sent any invoices it is impossible to reconcile these charges. If we say the initial one-off charges of £307.71 and monthly fees we cannot get close to the £472.81, and even adding VAT, this doesn't explain the monthly charge of £80.69 to £81.71.
    
   Furthermore, without any explanation on 19th July they attempted to take £570.34 and £882.58 on the 18 August. Both attempts failed as the direct debit had been cancelled.
   
2. Because of the risk to our business we had warned them that we were going back to BT, but their attitude was you have signed a contract and you are bound by it.
   
3. However, in June the unreliability of Internet had made the situation untenable and we returned to BT.
   
4. We have only received one email from Shine and this was on 21 July (marked B) demanding payment of £570.34 or the service would be cancelled on 31 July.
   
5. Despite their advice of the service being cancelled, we confirmed this by email on 1 September (marked C), once again requesting all the invoices.
   
6. We have paid them a total of £1,039.95. If we take the contract to have run from 11/10/16 to 31/07/17 when they said they had cancelled the service it the total owing would be:
    
   9 full months and 20 days at £53.30 (£28.50 and £24.80) is £525.23.
   Set up and equipment is £307.71.
   VAT on this £164.59
   Total payable of £987.53
    
   we have overpaid them by £52.42, which I am prepared to write off.
   
7. The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 19/07/17 to 18/08/17 on 882.58 and also interest at the same rate up to the date of judgement or earlier payment at the daily rate of £7.54.
    
   £7.54 X 365 is £2,752.10 per year interest. £2,752.10 divided by 8 then multipled by 100 is based on a claim for £34,401.25 and not the amount they claim.
   
8. In their terms clause 14.5.1 allows the customer to terminate when the ISP has materially breached the contract and they have not rectified the breach within 60 days of first being notified (or if the IPS fails to provide a service for 60 or more consecutive days). Few modern businesses could survive 60 days without internet or email and this is an unreasonable condition.
    
   
   

I believe the facts stated in this witness statement to be true.

Date: 29 January 2018 Signed………………………………………………

Does Shine need to pay a hearing fee of £80 by 1 February? And can we check if this has been paid?

 

 

Will the case be struck out if they fail to pay this?

Yes...assuming you push it.

Andy