Court Papers issued over something I never signed up for HELP!

[colecc]

Hi DG,

 

The info requested by 42man is that which i have posted above. That small paragragh is the Claimants Particulars of Claim beleive it or not. All that follows is a list of the amount claimed inc. interest etc.

 

In reference to the claimant saying full particulars have been issued prior to the claim being filed, all I can imagine is that they are referring to the correspondance I detailed in my first post, as nothing else has been delivered.

 

Thanks again for everyones input

[diamondgirl]

Ok our posts crossed.

Please don't worry someone with more knowledge will be along soon.

DG

[42man]

OK.....as I said before i'm not really 100% on business debts so this is my take on this......you'll need to edit the document below....

 

Dear Sir,

 

Re: (Claimant's name) v (Your name) Case No:

CPR 31.14 Request

 

On (date) I received the Claim Form in this case issued by you out of the (Name) County Court.

 

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest all of your claim.

 

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of [each of the following / the] document(s) mentioned in your Particulars of Claim:

 

1 the agreement. You will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

 

You should ensure compliance with your CPR 31 duties and ensure that the document(s) I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

 

Where I have mentioned a document and there is in your possession more than one version of that same document owing to a modification, obliteration or other marking or feature, each version will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any version(s) to include an obligation to recover and preserve such version(s) which are now in the possession of a third party.

 

In accordance with CPR 31.15© I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

 

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

 

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

 

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

 

I do hope this will not be necessary and look forward to hearing from you.

 

yours faithfully

[42man]

Defence as in post 17

[42man]

Am I correct in stating that they wrote out an email for you to type up and return confirming this ? You might be scuppered if they produce the email you wrote out in confirmation.....

[colecc]

Hi 42,

 

They dictated the email to me on the phone, which i sent saying i confirm i will go ahead. At the time i thought nothing off this, however i now know different. Hopefully the judge will be lenient in that I was only 19, and the sales person made a cold call to someone he would of been clearly aware of had know idea what he was doing.

 

The salesman did however make it clear that a contract must be signed, which he sent me to sign. The small print on this contract stated that this document consituted the contract. I never signed this and never returned it which they are aware of, and are using the email i sent as there only case it would appear. I do not doubt they will produce the email, as this is their only form of evidence.

 

 

Thanks again, I have wrote a defence which i will post now and would appreciate any feedback, Thanks a lot

[colecc]

1. The Defendant denies ever having been indebted to £2,510.07 and denies any business relationship with Ten Alps Communications LTD.

2. The Defendant repeats paragraph 1 of his Defence and denies a debt to the Claimant.

 

3. The Claimant's claim to be entitled to £2,510.07 for debt, to statutory interest or to any monetary or other relief of any kind is denied.

4. The Defendant denies having any signed agreement with the alleged creditor.

5. This whole situation arose from a cold call The Defendant received from the Claimant on 10/06/08.The Consumer Protection (Distance Selling) Regulations 2000 give consumers an unconditional right to cancel an order. As The Defendant was not provided with written confirmation of all the required information, the cancellation period can be extended up to three months and seven working days. Numerous written and verbal attempts to cancel were made by The Defendant within this period.

6. Claimant made clear during the initial cold call with The Defendant that the contract would be constituted by signing an ‘order form’, something which The Defendant never signed. The terms and conditions on this order form actually state "This Order Form, including these Terms and Conditions, constitutes the contract and no employee or agent purporting to represent the Publishers has any right to vary the said Terms and Conditions".

7. The ‘order form’ emailed to The Defendant was pre-filled with The Defendants details by The Claimant and then emailed to The Defendant to print and sign, which was never done. As a result, The Defendant believed, as was the case that no contractual agreement was made between himself and The Claimant. As soon as further information was received by The Claimant, The Defendant exercised his right as a Sole Trader under The Consumer Protection (Distance Selling) Regulations 2000 to cancel under the extended cancellation period.

8. The Claimant refers to The Defendants ‘written request’ for advertising in their Particulars of Claim. This would be in reference to an email dictated to the Defendant during the cold call made by the Claimant, which was requested to be sent in order to ‘get the sales reps boss off his back’, which would then allow The Defendant more time in which to consider The Claimants offer, something which at 19 years of age The Defendant would never have done without first taking advice.

 

9. The Defendant sought advice from his Father in relation the cold call proposition received by the Claimant, who advised to ignore this deal and to make no further contact with The Claimant. On this advice, The Defendant chose not to go ahead and sign the Order Form which The Claimant had emailed, subsequently creating no contractual agreement.

10. All of the Defendants requests to cancel were made before any advertisements were designed or printed by the Claimant, therefore being before any claimed ‘services rendered’ and before any possible costs could have been incurred.

11. The Claimant refused to acknowledge The Defendants requests to cancel, despite being told by The Defendant they did not have legal permission to use or print his details in any of their publications. The Claimant then designed a crude advert using details copied from The Defendants own website. This advert was claimed to of been printed twice by The Claimant, although no actual evidence of this was ever received by The Defendant. As a result there was no evidence to The Defendant of the claimed ‘services rendered’.

 

I BELIEVE THE FACTS SET OUT IN THIS DEFENCE ARE TRUE

 

 

Signed:

 

 

Dated:

[colecc]

The Defendant strongly denies any contractual agreement with the claimant. The Claimant has based their case on an email confirmation, which was a return email sent to The Claimant by The Defendant. In the original email sent by The Claimant outlining all clauses of their claimed original contract one of the terms was to be a 6 month website button, to be placed on The Claimants website linking back to The Defendants. This was to run from 30/06/08 until 31/12/08. This never materialised, and as such would leave The Claimant in breach of any claimed contract, rendering it void. This clause is included in both the emailed terms The Defendant received and in the ‘order form’ contract which was never signed.

 

 

the above is a paragrapgh I have added which refers to a breach of any claimed contract between myself and the claimant, which should be enough if my first argument of no contract existing does not hold.

 

Any feedback anyone? I am going to submit this defence at the court in person tomorrow morning, as the deadline is Thursday.

 

Thanks

[diamondgirl]

Sounds good, sure someone else will be along in a bit to check it out.

Couple of things I think need amending:

Item 7 Line 3 should that not be The Defendant (not himself as you are the Defendant?)

 

"9. The Defendant sought advice from his Father in relation the cold call proposition received by the Claimant, who advised to ignore this deal and to make no further contact with The Claimant. On this advice, The Defendant chose not to go ahead and sign the Order Form which The Claimant had emailed, subsequently creating no contractual agreement."

 

Think it should be:

The Defendant sort advice from his Father (in relation to the cold call received from the Claimant) who advised The Defendant to ignore this deal and to have no further contact with The Claimant. On his Fathers advice the Defendant chose not to go ahead and sign the Order Form which The Claimant had emailed, subsequently creating no contractual agreement.

 

Nit picking I know but I think it reads a bit better, but sure someone will come along and re-arrange it as its only early yet. You can edit it on your post if you think what I have said is right but I'm not a legal person and have only been learning a lot recently myself.

 

Good Luck with it. DG:)

[colecc]

Thanks for the input DG, I will make the changes

[42man]

Common sense should prevail here colecc.....if you had willingly wanted the advertising then you would have signed the contract and returned it....(keep this document to show to the judge) also with regard to the use of emails as evidence this may help....

 

Email as court evidence | OUT-LAW.COM - emails can be used as admissable evidence BUT it would have to come under close scrutiny

 

The 49th Update to the Civil Procedure Rules introduces changes in a large number of areas. The changes come into force on 6 April 2009 unless stated otherwise. You may want to note the following amendments:

 

Practice Direction – Protocols

 

A new Practice Direction is created on the pre-action conduct of parties. This includes the requirement in business debt claims for the creditor to provide information about sources of advice to the debtor before issuing proceedings.

Preview

 

You can preview the rule changes in this amendment by viewing the Civil Procedure (Amendment No. 3) Rules 2008 Statutory Instrument (PDF - opens in new window); and the Civil Procedure (Amendment No.2) Rules 2008 Statutory Instrument 2008 N0.3085 (L.26) in relation to Financial Restrictions Proceedings under the Counter-Terrorism Act 2008 (PDF - opens in new window). You can also view the Practice Direction and Pre-Action Protocol amendments by viewing the making document (PDF - opens in new window).

[colecc]

Thanks 42, todays the day so I will keep you all updated on the outcome of this mess,

 

Thanks again all for your input over the last few days

[colecc]

UPDATE:

 

A legal friend of mine created a list of CPR Part 18 questions to send to the claimant. The following post will list these questions with names removed for reference.

 

The court granted me an extension on the deadline, as this was all last minute. The claimant received the following questions, and after a couple of days rang me to say they were dropping all charges and were choosing not to answer my questions. I received a form from the claimant detailing this, which i was to sign and return. I have not heard anything else yet, but part of the judges order said that if the answers to the questions were not received by the 1st of may then the case would be struck out anyway.

 

Thanks again for everyones help

[colecc]

REQUEST FOR FUTHER INFORMATION

 

UNDER CPR PART 18

 

 

 

This is a request made on 15 April 2009 by the defendant for further information. The Defendant expects a response by 20 April 2009.

 

 

 

Two requests have been sent already and no response has yet been received. I am not able to file my defence until your response has been received.

 

 

 

General Issues

 

 

 

1. Please provide full details of how did the Claimant obtained the

contact details of the Defendant?

 

 

 

2. How long has Mr X worked for Ten Alps publishing?

 

 

 

3. Is Mr X still employed by Ten Alps publishing?

 

 

 

4. What is the amount of Mr X’s basic salary?

 

 

 

5. Is Mr X paid a commission and / or bonus for completed sales in

addition to his basic salary?

 

 

 

a. If the answer is in the affirmative;

 

 

 

i. How much commission is

he paid and how is this calculated?

 

ii. How much commission was

he paid during the last financial year?

 

 

 

6. Does Mr. X have a sales and / or billing target to meet?

 

 

 

a. If the answer is in the affirmative;

 

 

 

i. What was his target for

the current financial year?

 

ii. Has he met his sales

target?

 

iii. If he did not meet his

sales target would he penalised?

 

 

 

Contractual Issues

 

 

 

7. Did the Claimant attempt to repudiate the alleged contract

between the parties?

 

 

 

a. If the answer is in the affirmative;

 

 

 

i. What was the date when

he first repudiated the alleged contract?

 

ii. How many times did the

Defendant contact you by telephone and what were the dates of these telephone conversations?

 

iii. How many times did the

Defendant contact you by Fax? And what were the dates of the received fax transmissions?

 

 

 

iv. How many times did the

Defendant contact you by Email? And what were the dates of any emails received?

 

v. How many times did the

Defendant contact you by Royal Mail? And what were the dates of any letters received?

 

 

 

8. Did the Defendant ever sign a contract for advertising services?

 

 

 

a. If the answer is in the affirmative;

 

 

 

i. Please provide a copy of

the signed contract

 

 

 

b. If the answer is to this question is no;

 

 

 

i. Please provide the

documentary evidence of the existence of a contract between the parties.

 

 

 

9. For Clarification can you please explain the purpose of

condition 6 in the advertisement order form?

 

 

 

10. Did the Defendant ever send you any artwork proofs?

 

 

 

a. If the answer is in the affirmative;

 

 

 

i. What dates were these

received?

 

 

 

b. If the answer is in the negative

 

 

 

i. What was the response

from the Defendant when these were requested?

 

 

 

11. Did the Defendant ever pay you any money?

 

 

 

a. If the answer is in the affirmative;

 

 

 

i. How much did the

defendant pay?

 

 

 

b. If the answer if in the negative

 

 

 

i. What was the Defendants

response when payment was requested?

 

 

 

12. How many days had elapsed between the initial telephone call

with the Defendant and his reputation of the alleged contract?

 

 

 

13. The alleged contract stated that a “Link” would be provided for

on a website which is owned and maintained by your company for a six month period, which was to run from 30th June 2008 and end on 31st December 2008

 

 

 

a. At what date was this link placed and made active on the

website?

b. How much traffic was generated by this link?

 

 

 

14. In an email sent by ?? on the 18th November 2008 to the

Defendant, he states “Following on our chat of 7 November when you said that you were not supplying any editorial content, I have been informed that we are still to be expecting content from ?? and have been asked to give you a final chance to submit some editorial content for the space”

 

 

 

a. Who informed Mr ?? that “We are still to be expecting

content from ??…………”

 

 

 

b. What was the date when Mr ?? was informed of the above?

 

 

 

 

 

15. Is it normal practice to proceed with the publishing of an

advertisement without a signed and completed order form, where the terms have been agreed by the parties and a signature obtained?

 

 

 

 

 

16. Did the Claimant perform any credit check or obtain any trade

references to ensure the financial stability of the Defendant?

 

 

 

a. If the answer is in the affirmative;

 

 

 

i. What were the results of

these checks?

 

 

 

b. If the answer if in the negative

 

 

 

i. Why were references not

taken?

 

 

 

17. Does the Claimant record any telephone conversations during

sales related calls?

 

 

 

a. If the answer is in the affirmative;

 

 

 

i. Please provide

recordings of any conversations

 

 

 

18. Does the Claimant keep any records relating to any contact or

otherwise with its customers?

 

 

 

a. If the answer is in the affirmative;

 

 

 

i. Please provide a copy of

the said notes in relation to the Claimant.

[42man]

Hmmm this may be an unreasonable CPR for them to answer....and each point should relate to potentially a point of your defence.....

[42man]

Any update on this colecc ?