Vertex Data Science Ltd - Statutory Demand - ***WON + COSTS***

[chrismc]

They received my costs this morning, confirmed on the PO site.

[chrismc]

Martin

 

You were right, just recevied Bill of costs from them, extortionate, should have claimed for a lot more in mine.

 

However, true to form, they do have it headed in the wrong court, in the wrong City (lets hope they go to the wrong city) but what does CCFA Success Fee @ 100% mean? this doubles their costs.

[42man]

Abuse of process....and very amateurish for a 'professional' firm.

[chrismc]

Abuse of process....and very amateurish for a 'professional' firm.

As you said upthread, a comedy of errors, and yes for a professional firm they don;t have a clue what they are doing, lets hope the judge sees it that way too.

[42man]

Chris to be honest, it's a whopping great comedy of errors, it shouldn't even be set aside it should be completely thrown out...(you could even ask the judge to grant you a bankruptcy restraining order on this company - he or she may not grant it but all the judge could say is no....)

 

Creditors who petition the court for the winding-up of a company or the bankruptcy of an individual as a debt-collecting remedy are not free from risk.

 

HHJ Peter Coulson QC sets out in Jacob v Vockrodt [2007] EWHC 2403 (QB) when petitioning is an abuse of process that could involve the tort of malicious presentation of a bankruptcy petition.

 

The key parts of the judgement on abuse of process are:

 

Mr. Davies relied on the well-known passage in the judgment of Harman J in Re a Company [1983] BCLC 492 in which he said:

"First, it is trite law that the Companies Court is not and should not be used as (despite the methods in fact often adopted) a debt-collecting court. The proper remedy for debt collecting is an execution upon a judgment, a distress, a garnishee order or some such procedure. On a petition in the Companies Court, in contrast with an ordinary action there is not a true lis between the petitioner and the company which they can deal with as they will. The true position is that a creditor petitioning the Companies Court is invoking a class right (see Re Crigglestone v. Coal Co. [1986] 2 Ch 327) and his petition must be governed by whether he is truly invoking that right on behalf of himself and all others of his class rateably, or whether he has some private purpose in view. It has long been an order that a petition presented for the purpose of putting pressure on the company is not properly presented: see Re a Company [1894] 2 Ch. 349 and, in a slightly different context, Re Bellador Silk Ltd. [1965] 1 All ER 667."

It is, of course, right that a bankruptcy petition must not be utilised where the petitioner knows that the debt is the subject of a bona fide dispute, but chooses to proceed with the petition in any event, so as to put illegitimate pressure on the other party to pay the debt. But the authorities cited above cannot be taken as authority for any wider principle or proposition. In my judgment, the correct approach to the facts, in a situation where the petition has failed and it is subsequently suggested that the presentation was malicious, was that applied in Partizan Ltd v OJ Kilkenny & Co Ltd [1998] 1 BCLC 157 by Rimer J, when he concluded at page 173:

"It follows that I am not satisfied that, when it presented the petition, Kilkenny was moved by notice or considerations different in any way from those which ordinarily motivate creditors who petition to wind up a company on the grounds that a debt claimed to be due to them (not being one which is regarded by the petitioner as disputed on substantial grounds) is unpaid despite demand; namely, at least an element of hope that, if the company can pay the debt despite its previous failure to do so, it will pay it and, if it cannot do so, a hope and expectation that it will be placed in liquidation so that there can be an orderly realisation of

its assets for the benefit of its creditors generally."

What the cases show (and the point I take Rimer J to be addressing by the phrase in brackets in the quotation from his judgment set out above), is that the presentation of a petition is an abuse of process only if the petitioner knows or believes that the debt is in truth the subject of a substantial dispute.

[chrismc]

Chris to be honest, it's a whopping great comedy of errors, it shouldn't even be set aside it should be completely thrown out...(you could even ask the judge to grant you a bankruptcy restraining order on this company - he or she may not grant it but all the judge could say is no....)

 

Creditors who petition the court for the winding-up of a company or the bankruptcy of an individual as a debt-collecting remedy are not free from risk.

 

HHJ Peter Coulson QC sets out in Jacob v Vockrodt [2007] EWHC 2403 (QB) when petitioning is an abuse of process that could involve the tort of malicious presentation of a bankruptcy petition.

 

The key parts of the judgement on abuse of process are:

 

Mr. Davies relied on the well-known passage in the judgment of Harman J in Re a Company [1983] BCLC 492 in which he said:

"First, it is trite law that the Companies Court is not and should not be used as (despite the methods in fact often adopted) a debt-collecting court. The proper remedy for debt collecting is an execution upon a judgment, a distress, a garnishee order or some such procedure. On a petition in the Companies Court, in contrast with an ordinary action there is not a true lis between the petitioner and the company which they can deal with as they will. The true position is that a creditor petitioning the Companies Court is invoking a class right (see Re Crigglestone v. Coal Co. [1986] 2 Ch 327) and his petition must be governed by whether he is truly invoking that right on behalf of himself and all others of his class rateably, or whether he has some private purpose in view. It has long been an order that a petition presented for the purpose of putting pressure on the company is not properly presented: see Re a Company [1894] 2 Ch. 349 and, in a slightly different context, Re Bellador Silk Ltd. [1965] 1 All ER 667."

It is, of course, right that a bankruptcy petition must not be utilised where the petitioner knows that the debt is the subject of a bona fide dispute, but chooses to proceed with the petition in any event, so as to put illegitimate pressure on the other party to pay the debt. But the authorities cited above cannot be taken as authority for any wider principle or proposition. In my judgment, the correct approach to the facts, in a situation where the petition has failed and it is subsequently suggested that the presentation was malicious, was that applied in Partizan Ltd v OJ Kilkenny & Co Ltd [1998] 1 BCLC 157 by Rimer J, when he concluded at page 173:

"It follows that I am not satisfied that, when it presented the petition, Kilkenny was moved by notice or considerations different in any way from those which ordinarily motivate creditors who petition to wind up a company on the grounds that a debt claimed to be due to them (not being one which is regarded by the petitioner as disputed on substantial grounds) is unpaid despite demand; namely, at least an element of hope that, if the company can pay the debt despite its previous failure to do so, it will pay it and, if it cannot do so, a hope and expectation that it will be placed in liquidation so that there can be an orderly realisation of

its assets for the benefit of its creditors generally."

What the cases show (and the point I take Rimer J to be addressing by the phrase in brackets in the quotation from his judgment set out above), is that the presentation of a petition is an abuse of process only if the petitioner knows or believes that the debt is in truth the subject of a substantial dispute.

42man

 

I have put that I request a "bankruptcy restraining order" in my documents with the court.

 

Thanks for the other information BTW.

[MARTIN3030]

Martin

 

You were right, just recevied Bill of costs from them, extortionate, should have claimed for a lot more in mine.

 

However, true to form, they do have it headed in the wrong court, in the wrong City (lets hope they go to the wrong city) but what does CCFA Success Fee @ 100% mean? this doubles their costs.

 

 

Success Fees and Costs Draftsmen’s Fees

Crane v Canons Leisure[2007] EWCA Civ 1355

The Court of Appeal considered the SCCO judgment of Master Wright who ruled that costs draftsmen’s fees which fell squarely within the definition of a disbursement could only be recovered between the parties as a disbursement. No success fee could therefore be recovered on those fees.

The Court of Appeal disagreed. The CCFA provided for work done by the solicitors to be charged on an hourly rate and, in addition, a success fee applied to those fees. The work done by the costs draftsmen was clearly solicitors’ work. The solicitors still retained control and responsibility over that work. That was a key point.

As to the amount of the success fee recoverable the Defendants sought to argue that a lower success fee should apply. The Court disagreed and followed KU v Liverpool City Council [2005] EWCA Civ 475. The Court did not have the power to rewrite the CCFA so as to provide for a lower or no success fee in respect of the costs−only proceedings. There was no reason for party who had entered into a CFA to have separately assessed the risks of costs proceedings at the outset.

 

 

 

As a LIP Chris you would be entitled to two thirds of what it would cost you to have hired a brief to defend your case.

Edited May 13, 2009 by MARTIN3030

[MARTIN3030]

in simple terms heres an example;

 

Solicitors can deal with your claim on a "no win - no fee" basis in one of the following ways:-

Conditional Fee Agreements (CFA). If your case is not successful, the solicitor does not get paid.

If your case is successful, your solicitor gets paid by whoever agrees to pay your compensation. Your solicitor gets paid a success fee as well as his basic costs - but you may still have to pay some of your compensation towards your legal bill if your case is successful because some solicitors will charge you part of the cost of the insurance premium or medical experts' fees and Court costs if they do not recover all of these from the other side.

 

Collective Conditional Fee Agreements (CCFA). This is similar to a CFA but it is intended to enable membership organisations such as Trade Unions to deliver a "no win - no fee" legal service. Most Trade Unions offer a TRUE "no win - no fee" legal service to their members and also to widows and other dependent family members in fatal cases. Trade Union members do not pay if their case is not successful - but where the case is successful they receive the full compensation they are awarded without being charged any deduction towards legal costs.

[MARTIN3030]

Jeez I am trying to edit the bloody text.

[MARTIN3030]

Sorted:)

[MARTIN3030]

Notwithstanding-their behaviour has been has been without doubt Vexatious-that in itself is something that the Judge might mention.

Theres no reason why the Judge may not ask you if you are happy with the costs that you have submitted-and he/she has the discretion to give you more-in this instance it could be "Special Costs" on account of the suffering and inconvenience that you have been put through.

[MARTIN3030]

Maybe help you buy some of this;

[chrismc]

Notwithstanding-their behaviour has been has been without doubt Vexatious-that in itself is something that the Judge might mention.

Theres no reason why the Judge may not ask you if you are happy with the costs that you have submitted-and he/she has the discretion to give you more-in this instance it could be "Special Costs" on account of the suffering and inconvenience that you have been put through.

 

 

Well I will be asking for an Indemnity award, also, but a sucess fee of 100% is a new one to me, seems like they can do it though according to all that.

[chrismc]

Maybe help you buy some of this;

 

 

I have a 2 litre bottle ready and waiting (Horilka) for the celebration afterwards the Nemiroff is all long gone now.

[MARTIN3030]

Ahhh My Horilka (black label) has long since gone but will be replaced soon....at 24uah a bottle its an absolute steal.

[MARTIN3030]

What time is hearing then Chris ?

[MARTIN3030]

Bet the defence is just arriving -at Lytham St.Annes Court

[42man]

I have good feelings about this Martin, hopefully we should get some good news !!!

[MARTIN3030]

Yes I am sure we will-looks like he has gone now-I saw him on here early on.

Will be eagerly awaiting the result:)

[chrismc]

What time is hearing then Chris ?

 

3pm

[chrismc]

Bet the defence is just arriving -at Lytham St.Annes Court

 

Yes sure they could be anywhere

[chrismc]

I have good feelings about this Martin, hopefully we should get some good news !!!

I hope so too 3pm is the time though, I will report in after the event.

[MARTIN3030]

Ah...so no rush this morning then.

Do you think they will have found the right Court by then ?

[MARTIN3030]

This could suggest that they arent going to use a local Solicitor-but their mentions of CCFA would seem to contradict that thought.....A local Solicitor would not be getting the venue mixed up I mean.

[chrismc]

Ah...so no rush this morning then.

Do you think they will have found the right Court by then ?

 

Based on past performance, NO, but I guess even a blind man falls over a dog now and again

 

 

Scott Rees are from Skem, not that far away.

Edited May 14, 2009 by chrismc
typo