Stopped cheque

[aztecmusic]

I had a minor car accident where i hit the back of a man who was unable to drive an automatic car and he went to change gear and hit the brake, my car glided to a stop and nudged him in the back corner. He admitted it was his fault and agreed to pay for my damages. He sent a cheque which turned out to be a company cheque. The boss came back and stopped it after i had banked it. Been to see a brief who said the cheque must be honoured and i can sue for breach of contract and that the accident is now irrelevant since liability has been acknowledged in the sending of the cheque. I forgot to ask him, who do i name on the court papers. the printed name on the cheque, the signatory on the cheque or the guy who sent it?

Anyone help????

aztecmusic

Edited November 25, 2008 by aztecmusic

[lookinforinfo]

I am not sure you brief is correct. As you drove into the car in front, the fault is yours, regardless of what the other driver said at the time.

It may well be therefore that his boss has realised that it is you who should be paying for any damage and has stopped the cheque.

Best to contact the company to find out why the cheque was stopped before you shell out any more money on solicitors or Court fees.

[Mossycat]

Your brief is totally wrong.

 

You are liable for the accident, it was totally your fault, the boss of the Company was right to stop the cheque and will probably send you a bill for any damage you caused to the other car when you failed to stop in time.

 

Mossy

[21stcentury]

I Hate to disagree with some but the above two posts are as far as i'm concerned wrong and the OP is correct.

 

You can now sue the driver for the full amount of the cheque, plus interest and costs under the

Bills of Exchange Act 1882

and there is virtually no defence that they can use.

 

Under the

Bills of Exchange Act 1882

, cheques are contracts in themselves. As such, they are a promise by the drawer of the cheque that the person to whom it is addressed will be paid the money as stated on the cheque. This is the case irrespective of the purpose for which the cheque is paid and there are only very limited exceptions. If there are insufficient funds in the account to meet that promise or if the drawer of the cheque stops payment, the cheque has been dishonoured and the contract broken. You need only give notice to the bank that the cheque has been dishonoured and then you are entitled to sue them on the dishonoured cheque, get judgment and enforce it.

 

Under law, when you write a cheque to someone you effectively promise that the cheque will be honoured and if, for whatever reason, the cheque is not honoured you imply that you will compensate that person in full. So as this cheque has not been honoured you can immediately sue the driver and there is virtually no defence that the driver can raise to that claim.

 

Hope this helps

 

Derek

 

Edited November 27, 2008 by 21stcentury

[NYM]

Why not just instruct the Insurance company and let them deal with it ?

[butty_a]

Insurance companies are in the whole useless. Mine paid out even though it wasn't my fault, becuase it was my word against thiers and they lied about not reversing the wrong way down a one way road I lost out. The insurance companies will work on the cheapest option should there be any doubt. Mine wouldn't budge at all as it was cheaper to pay than fight. On the up side they let me keep my no-claims and reduced my next years bill. Left them after that cheap year though.

 

Will be easier to fight if you know what your doing, as the OP has seen a brief already I suggest that they do. As for the question, the company that origonally issued the cheque I would have thought after reading 21stcentury's post because it was signed on behalf of that company by an authorised person representing them.

[21stcentury]

The OP should go after my original post, if he goes down the insurance route this could go on for a long time and he may even loose, whereby my information means that he will win without having all the difficulty.

 

Derek

[NYM]

The fact that the company paid a cheque, could be interpreted as an admission their employee was at fault. It would be difficult for them to argue they've changed their minds.

 

I was only suggesting the Insurance company route as it would be the least troublesome to the original poster.

 

Not that I trust the Insurance industry in any way.....

[Aequitas]

Derek is right. Why the cheque was issued does not come into it. There is no defence. That does not however mean that there cannot be a counterclaim.

[lookinforinfo]

Thank you for your post 21st Century. Though I would have thought that when a cheque is issued in payment, that should the drawer discover that what he had paid for was not what had been agreed, he would be able to withdraw his consent to that payment. Indeed, the point is included in the BOEA 1822 under "Presumtion of Value and Good Faith"

Every holder of a bill is prima facie deemed to be a holder in due course; but if in an action on a bill it is admitted or proved that the acceptance, issue, or subsequent negotiation of the bill is affected with fraud, duress, or force and fear, or illegality, the burden of proof is shifted, unless and until the holder proves that, subsequent to the alleged fraud or illegality, value has in good faith been given for the bill.

[Aequitas]

Thank you for your post 21st Century. Though I would have thought that when a cheque is issued in payment, that should the drawer discover that what he had paid for was not what had been agreed, he would be able to withdraw his consent to that payment. Indeed, the point is included in the BOEA 1822 under "Presumtion of Value and Good Faith"

Every holder of a bill is prima facie deemed to be a holder in due course; but if in an action on a bill it is admitted or proved that the acceptance, issue, or subsequent negotiation of the bill is affected with fraud, duress, or force and fear, or illegality, the burden of proof is shifted, unless and until the holder proves that, subsequent to the alleged fraud or illegality, value has in good faith been given for the bill.

 

What you quote covers the following type of situation:

 

1. Someone knocks on your door and says he is collecting for charity, but is not. You later discover this and stop the cheque.

 

2. Someone breaks into your house and forces you to write a cheque. When he leaves you stop the cheque.

 

3. You send someone a cheque in the post and they inform you that their post has been intercepted. You stop the cheque and someone tries to negotiate it.

 

In all these cases you will have a defence if sued on the cheque by the fraudster, burglar or thief, but not if sued by someone who takes the cheque from the fraudster, burglar or thief in good faith for value. (In fact these days with virtually all cheques being crossed "a/c payee only" the risk of a third party claiming is negligible - if your bank pays an endorsee you have a claim against your bank.)

 

If you write someone a cheque as a gift and then change your mind and stop the cheque, the payee can sue and you have no defence even if no consideration was given.

 

If you enter into a contract and pay the other party a sum due under the contract by cheque and then stop it, you have no defence even if the other party does not perform his obligations. Even if the cheque is for the wrong amount you have no defence. However, if the other party is in default or a mistake was made in the amount, you can counterclaim for breach of contract or on account of the mistake. If you win on the counterclaim you only have to pay the difference between the amount you are awarded on the counterclaim and the amount for which the cheque was drawn and justice is done.

[21stcentury]

Thank you aequitas. Just sue the driver of the vehicle and you will win with no chance of a defence under the Bill of exchange act 1882.

 

ENd result is the OP wins gets his money and doesnt have to fight with insurance company, which in my opinion he may loose out. This way is water tight.

 

Derek

[Conniff]

21st is correct.

Once a cheque is issued it is a solid promise of payment. You could sue for the amount and would win, but (isn't there always one), if they had good cause to not pay you then they could counterclaim on you for return of the payment.

 

As for rear end shunts, there is the 'law of negligence' and comes under -

 

Failure to drive with reasonable care and skill:

 

(a) Driving at a speed greater than the speed limit, or driving at a lawful speed which is inappropriate in the light of road and weather conditions.

 

(b) Driving too close to the vehicle in front so that a collision cannot be avoided if the leading vehicle stops.

 

© Sudden braking without good cause, although gentle deceleration is not of itself negligence.

 

(d) Failure to observe road signs or traffic controls such as halt, give way or roundabouts, including going through an amber traffic light without leaving enough time to clear the junction and failure to not appreciate that traffic lights are not working properly.

 

(e) Failure to carry the lights required by law or lights appropriate to visability conditions or to use undipped headlights so as to dazzle oncoming motorists.

Edited November 28, 2008 by Conniff

[Josie8]

interesting thread

[aztecmusic]

Many thanks for your replies.

After further investigation I can confirm Derek is correct. The accident is irrelevant and the dishonoured cheque is now the arguement in question.

The person I sue is the name printed on the cheque (who the funds belong to) and there is indeed no defence for a dishonoured cheque in this instance. But for future reference, who you sue depends on whether an individual or a LTD company as separate rules apply.

Thanks Derek and to all.

[21stcentury]

Well done Aztecmusic, just progress the claim and you shouldhave no issues, my only concern for you was that if it went through the insurance company you would probably loose. Now you can win and thats the end of the matter.

 

Let us know how you get on.

 

Derek

[Mossycat]

Well done Aztecmusic, just progress the claim and you shouldhave no issues, my only concern for you was that if it went through the insurance company you would probably loose. Now you can win and thats the end of the matter.

 

Let us know how you get on.

 

Derek

 

Disagree with that, whilst he will win the argument that the cheque should have been honoured the Company will probably put in a Counterclaim and will succeed in recovering the money that they pay out.

 

Mossy

[Aequitas]

Duplicate

[Aequitas]

Disagree with that, whilst he will win the argument that the cheque should have been honoured the Company will probably put in a Counterclaim and will succeed in recovering the money that they pay out.

 

If the company was responsible for the damage the counterclaim will fail. If the company was not responsible for the damage there is no basis on which to make a counterclaim.

[Mossycat]

OK first consider the accident (which is the crux of the matter regarding the cheque but ignore the legalities of stopping a cheque), the OP drove into the back of another vehicle, therefore they failed to drive without due care and attention. There could be a counter argument that the other person drove erratically and braked sharply for no good reason and possibly a split liability.

 

Immediately after the accident the other party writes a Company Cheque, which is then stopped.

 

The OP has an argument that it is illegal to stop a cheque and as others have said will succeed in an action to get the cheque honoured, however if they issue proceedings the Company will in my opinion issue a counterclaim saying he is not entitled to the money and they (The Company) do not accept liability and are seeking this money back. Any dispute on liability can only be decided by the Courts (that is if both parties dispute liability for the accident).

 

Therefore the Court will have two issues to decide (if a Counterclaim is received).

 

Issue 1 - Stopping a Company Cheque, the OP will win

 

Issue 2 - Liabilty, in my opinon (but it depends on what the other party argue) would at best be 50/50 at worst the OP will lose. I say it depends on what the other party say because people do not always state the same after an accident as they do when they have had time to think about it or received 'advice', ie if the other party now states that they thought something ran out into the road (ie animal etc) and they braked instinctively to avoid it then the OP will lose outright because they failed to stop in time, failed to leave sufficient space and generally drove without due care and attention. If the other party tells the truth and confirms that they braked for no good reason then liability would probably be split.

 

It matters not that the other party may originally have appeared to have accepted liability immediately after the accident (as far as liability goes, although that may now allow their insurers to refute the claim for indemnity).

 

Mossy

[Aequitas]

Consider this:

 

A bangs into the back of B. A admits liablilty for the damage. A's great-aunt, C, writes out a cheque and sends it to B. She then talks to A who says that perhaps he was not responsible after all. C puts a stop on the cheque. If B sues C she has no counterclaim because there is no connection between B and C.

 

The company is in the same position as the great aunt.

[Mossycat]

Consider this:

 

A bangs into the back of B. A admits liablilty for the damage. A's great-aunt, C, writes out a cheque and sends it to B. She then talks to A who says that perhaps he was not responsible after all. C puts a stop on the cheque. If B sues C she has no counterclaim because there is no connection between B and C.

 

The company is in the same position as the great aunt.

 

With respect the Company is NOT is the same position as you describe.

 

The Company cheque was issued by the person who was involved in the accident, (probably outside of their remit with regard to the issue and use of Company cheques but that's not really salient), when the owner or someone senior in the Company are advised of this they stop the cheque.

 

Mossy

[Aequitas]

With respect the Company is NOT is the same position as you describe.

 

The Company cheque was issued by the person who was involved in the accident, (probably outside of their remit with regard to the issue and use of Company cheques but that's not really salient), when the owner or someone senior in the Company are advised of this they stop the cheque.

 

Mossy

 

The Company on the one hand and its employees/shareholders/directors on the other are distinct legal entitities. Someone with authority to do so signed the cheque and it became a promise by the company to pay the amount specified on it to the person in whose favour it was drawn.

[Mossycat]

Yes and the OP possibly caused damage to a vehicle owned by the Company when they ran into the back of it, hence Counterclaim

 

And the Company now having reviewed the situation do not feel they are liable and wish to recover monies paid to the OP, hence Counterclaim.

 

Mossy

[aztecmusic]

Hi guys,

Just to throw a spanner in the works, it turns out the driver of the other car was NOT INSURED! He has no insurance at all. Only as a named driver on his wifes policy (which wasnt the car he was driving) . I have emails from him the day after the accident confirming that he will pay direct upon receipt of estimate 4 damage to my car and did not wish to go thru insurance company!.... Interesting, You guys are making me nervous that I may lose now!!!!

Any more thoughts!!!

 

Aztec