They may submit a further one......wasn't the last one in support of an application ?

So received a updated Witness Statement. They are still claiming there points from the initial Witness Statement and my WS proves some of there points they deny.

Couple of points though, they are referring us to a clause in there terms and conditions, that all amounts owing are to be made without set off, counter claim or deduction - there claim is based on us not paying a disputed amount. Also that it was our responsibility to check acknowledgements and invoices before paying - we had paid and not picked up for several months.

These 2 points do worry me and i wonder if this will weaken our defence.....

Irrelevant if its a disputed amount

Has there been any clarification yet on how the order with your supplier was made? Was there a Purchase Order, and what did that state? In their initial response to your defence they mention an acknowledgement as well, was that received and what did that state?

Can you buy this product elsewhere? It might be worth getting other quotes to demonstrate the true market value of the product in question. I only know from dealing with various electrical distributors that the trade pricing is vastly different from discounted pricing, so if someone was to make an error in pricing and charge full price it "should" be easy to recognise any error in pricing. £8500 is quite a lot, so assuming other suppliers would offer similar discount structures to the one originally offered by your supplier

That's probably the key to their argument though - that the quote merely indicated an offer, not acceptance or the formation of any contract. They have been harsh though - This has happened in the past to me and the suppliers I deal with would generally meet you half way.

Normally our manufacturers will give a % discount off the RRP. The quote/price was honoured for 2 months, and then prices reverted back to full rrp and when we pointed out the problem prices reverted back to what was quoted. Other suppliers to use are no problem, and we found another easy enough. We did try and meet them half way but they wouldn't listen - despite evidence in our favour. There WS is very vague, as though they haven't been briefed internally within the company, and the solicitor again i believe wasn't briefed fully.

Let's see if we hear any more prior to the court date in a couple of weeks time....

So we have received a trial bundle with all the relevant WS and notes in from the claimants solicitor, as the case is soon. He has also said, these have been passed onto the Barrister.... so it looks as though the case has been passed to a Barrister as well as the solicitor who we had been dealing with - which is not what I expected. I thought the hearing would be in a 'room' as opposed to a fully blown 'courtroom'

Can be a room or chambers or actual court room subject to whatever is available on the day...as for Barristers ...this is small claim track and costs are fixed/restricted...so dont let that concern you...should concern the claimant has they are not guaranteed getting their costs back ...win or lose.

I think I am more concerned having the barrister there - was just expecting a solicitor (Could we have both?) as I was always lead to believe it was the solicitor and claimant only. I do wonder if once they received our WS they decided on a barrister approach to try and beat us - lets see anyway....

Can I also ask your opinion on post #63 -

''but as the judge said he will deal with also the 'strike' out application on the same day - what argument would i need for this first do you think?''

If they have pots of money you may have both but I think it hardly requires that level of counsel to be honest....dont worry about the barrister...he cant ask you anything ...all runs through the District Judge.

To strike out a claim/defence there has to be legal basis

Defences which appear to fall within rule 3.4(2)(a) or (b)

3.1 A court officer may similarly consult a judge about any document filed which purports to be a defence and which he believes may fall within rule 3.4(2)(a) or (b).

3.2 If the judge decides that the document falls within rule 3.4(2)(a) or (b) he may on his own initiative make an order striking it out. Where he does so he may extend the time for the defendant to file a proper defence.

3.3 The judge may allow the defendant a hearing before deciding whether to make such an order.

3.4 Alternatively the judge may make an order under rule 18.1 requiring the defendant within a stated time to clarify his defence or to give additional information about it. The order may provide that the defence will be struck out if the defendant does not comply.

3.5 The fact that a judge does not strike out a defence on his own initiative does not prejudice the right of the claimant to apply for any order against the defendant.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03/pd_part03a#3.1

The fact the court is dealing with the application at the main hearing is good for you...in that proceedings are being conducted under SCT costs rules rather than a separate hearing which could incur higher costs than normal.

on post #71 - i asked about 'without prejudice' - I have read through (and confused my self...) and 2 letters we wrote 'without prejudice' from us to the claimants I have included in the WS statements - have I done wrong?

Depends on what the content was..was it offer of settlement or was it detrimental to the claimant ?.....and who told you mark them so ?

The first was a bullet point and timeline of dates and who we spoke to before the claim was issued and sent to the first solicitor - these points are also in the witness statement and email chains it was to just simplify.

And the second was to the new solicitor after the claim was issued confirming a earlier offer to settle with them at half of the disputed amount. This reads a without prejudice settlement of xxxx in the sentence and not at the top of the letter.

I'm can't recall why we wrote without prejudice at that time.

What do you think?

Well they will either be allowed or rejected...but as they were a genuine attempt to settle the matter there is case law you could rely on were without prejudice were allowed as apart of evidence......I personally wouldn't worry either way as they are not pivotal to the defence.

Cammack v Ashby & Others [5]

The Court of Appeal:

• reiterated that communications created in the context of settlement negotiations are privileged regardless of whether the words ‘without prejudice’ are used;
  
• clarified that for such a communication to be without prejudice save as to costs the latter proviso must be expressed; and
  
• confirmed that without prejudice privilege can only be waived with the consent of both parties.
  

The appeal was allowed in full.

ok thanks Andy for that - I'm not sure what the Judge will say obviously but I'm just looking into everything very close today.

One thing I missed - not sure if it makes any difference and maybe I should have put in my witness statements is;

Letter received from xxxxxx xxxx May 2018 warning if payment is not received in 7 days court action will be commenced. We replied with a letter with bullet points / timeline trying to settle - this is the 'without prejudice' letter i refer too.

Letter received by xxxxxx on xx June saying a letter before action had been sent to our registered company address – the same day we received the county court claim.

Important point......non compliance with pre action protocol......you can raise it verbally...make note to raise it.

I have added to my notes. Can't believe i missed before.

Anyway thank you for all your help and i will let you guy's know the outcome.

So we lost the case.

To be honest within 1 minute of sitting down in the courtroom, and the judge beginning I could tell we were going to lose.

The Judge opened by saying, the Judge who read the initial papers and directed should not have allowed the strike out application and main trial to be all on one day - he would have done differently and had separately, he said the case probably wouldn’t have got to trial. He felt that it would take too long and asked if an adjournment was needed and we all said no. He said ok, let’s move to the main trial then.I think the Judge wanted over quickly. He also said this was a commercial agreement and would be looking at law in this area.

He explained that at the end when judgement by him was confirmed, we could appeal but he would confirm if the appeal was allowed depending on what this was based upon.

It already felt like I was on trial by both judge and claimants barrister...

He then opened the claimants witness statement and skipped to point xx which was the claimant and there terms and conditions and said this was the relevant part to start. He told me my witness statement was irrelevant as the whole case would hinge on this by the claimant. When I tried to point out parts of my witness statement, I was asked by the Judge to not go any further, as we won't be talking about this. I was reminded of this when I tried to run through points of my witness statement.

The claimant went into the box first and explained the ordering process and terms and conditions aided by their barrister. When I was able to ask questions, as to the agreement between there company and ours the claimant and barrister told me this agreement was only for a 30 day period - and I could see the Judge roll his eyes.....very professional.

Next, I went into the box and as expected the barrister tried to discredit emails between us and the claimants representative. He also pointed out at the terms and conditions to say we were not allowed to withhold payment as there was no overcharging. The judge was researching terms and conditions on his laptop, and stated a couple of examples which I knew was against us – as I could see where this was going. The barrister was asking me for my yes or no on questions and I simply said no - I do not agree in your interpretation of what happened and agreements we did make. I asked the claimants barrister, why did the claimant meet and offer a rebate if we stayed with them - which would offset any overcharging - before I finished the question the Judge told me to stop as this was not a relevant question (this was in my witness statement by the way) to which he replied I know.

He then spoke for about 20 minutes and awarded judgement - and also costs to the claimant, and basically said our case was rubbish, it was clear we had breached terms and conditions and owed the money. There was no discounted pricing agreed (which gobsmacked me as the emails were there - along with what I had written on the witness statement). It was akin to a stitch up because we didn't have a barrister - he did hint we should have maybe paid the money to the claimant and then went after them for the overcharges. He did say to the claimant I am not awarding you xxx as costs (one of the application costs) as this was not the defendants fault, and also he said to the claimant you will be asking for statutory interest at 8%? But as you know I will not award more than 2%....

So the whole case stemmed on the terms and conditions and the law around this, which we had broken by withholding a payment. This payment these invoices refereed to were not in dispute, and as we had paid disputed invoices already we were in the wrong.

So that's it, look we did prepare if we lose we would have to pay up - no problem. But the case I felt was awful. It was more like a crown court case not a small claims – not that I had been to either before. Maybe I wasn’t fully prepared or what.

Anyway, thank's Andy for your help - we did our best.

Hi Liam.

I'm sorry to hear this, it sounds like the judge lottery. I expect Andy will be along to comment later, I'm sure you did your best.

HB

Sounds very much like a Crown Court case.....You were in a box ? Barrister speaking to you and asking you questions in SCT ?

Which County Court was this again ?

Discounted deals do not run with the normal Terms and conditions of business....its a verbal agreement...which in your case was backed up by emails.

Were costs fixed ? Did they get their Barrister fees ?

Andy

Definitely a county court, Cambridge, and a court room and the Judge had the claimant in the box first and then me and questioned by the defence Barrister - or rather grilled. The judge would just not listen to our argument (which helped the Barrister) and said it all boiled down to terms and conditions and withholding invoice payments.

The Barrister got his fees, along with court fees. The Judge though refused one of the court fees brought by the original solicitor as he said this was not the defendants fault.

As I said, it felt as though the case was decided before we sat down.