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CCJ from Marstons Brewery. Advice needed re: procedure


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Dear All

 

As some of you may recall, my partner and I were up in Court a couple of weeks ago to try to set aside a default judgement made in June against her and her ex by Marstons brewery re: non-payment of a £20K loan, and for unlawful retention of goods amounting to £10K. Some of the details of this case are immaterial, so i shall spare you!

There was no dispute regarding the £20K; my partner acknowledged that she and her ex had been made jointly and severally liable for the loan, and the judge made the interim charge against our property final in the sum of £20K, but adjourned the hearing in the matter of the extra sum (which is in total about £13K) until around Christmas, as our barrister argued reasonable prospect of success in us being able to defend said amount, but that the claimant (Marstons) had not issued details of the original claim early enough for us to form a defence.

We are now compiling our defence for this case, as we have been advised by the solicitor to keep our legal costs down at this stage, to save them for later hearings. She feels we should be able to defend with the witness statements and other documentation we have at our disposal.

Our defence is based on the outright assertion, by both my partner and her ex, that Marstons cannot produce a true signed copy of an agreement stating [our] liability for these goods. They will not be able to produce this, as no such document exists. They never signed anything in this regard, unlike the £20K loan, which is now no longer in dispute.

 

SO, we need to know what happens next, so that we can assess when best to employ a good counsel.

 

As this hearing will be continuation of an adjourned hearing to set aside (part of) the original judgement, am i correct in assuming that it cannot result in this disputed amount being struck out immediately?

 

However, if this part of the judgement is set aside, assuming the judge believes us to have reasonable prospect of successful defence of the original claim, it is like we are back to the original claim hearing (which we did not attend due to court papers not being served at our present address - a pathetic flaw in the system, if you want my opinion!), where the burden of proof will be on Marstons to show that there IS a document with my partner's autograph on it, accepting liability for the goods concerned. Is this correct?

 

If they decide not to challenge our defence that there is no signed document at the upcoming set-aside hearing, CAN the disputed amount be struck out, or do we have to make an application to the court to have this done, and attend a further costly hearing?

 

Not wishing to put the cart before the horse, but IF it turned out that there was no documentary evidence to support the original claim for this disputed amount, and hence the subsequent judgement, could we have a case against Marstons for attempting to obtain money by deception, and subsequent damages? Just a thought.

 

 

Many thanks in advance for your help here, as always.

 

Best wishes to all.

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What is the extra £13k for? Have you got any information from Marstons on this now or do you know what it's meant to be for?

 

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Hi Caro

 

Thanks for your interest.

The £13K in dispute arises from some unpaid invoices from the period after my partner left the business, and for "unlawful retention of goods" to the tune of £10K, which Marstons say relates to the cellar equipment they installed (rather than it being commissioned by my partner and her ex) when they first started supplying beers to the pub. We are hoping to demonstrate to the judge (the adjourned hearing is now set for 2nd Feb, but the papers have to be submitted by this Friday) that (a) my partner and her ex never saw, or signed, a contract or agreement outlining a penalty clause that would become active in the event of them either selling the pub, or changing beer supplier, (b) that the amount of £10K is entirely arbitrary, and therefore unenforceable, © they have never asked for their goods back (so how can they be retained unlawfully), and (d) that it is entirely standard industry practice for brewers to replace each other's equipment without any liability to the licensee.

 

If you have any other pointers, i'd be most grateful to hear them.

 

 

Cheers

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