Help Needed for Court Case. Claimant ignoring Directions and Witness Statement needed by Friday

[Desperate Daniella]

I have started two new threads.

 

If your card interest rate had remained at the original rate you signed for, wouldn't you have paid it off by now?

 

A bit of a mouthful, but couldn't work out how to shorten it.

 

and

 

Yet Another Suicide through Debt about that poor woman who sat in front of a train.

 

These rip-offs and horrible practices have got to stop.

 

DDx

[Desperate Daniella]

Hi everyone,

 

Have been dealing with all sorts of other nightmares for the past few days which I won't go into here.

 

Today I received a letter from her solicitors saying they have paid the fees and enclosing the Listing Questionnaire, which says she has provided the documents I asked for from the Standard Disclosure (which they haven't) and sending an Estimate of Her costs for £6315.

 

They also sent it by email yesterday afternoon, but I have only just gone online and found it.

 

Should I just email him back and say that clearly I must obviously counterclaim against their client, because she is refusing to acknowledge all the work I did on behalf of the company,and that I have records to prove everything I did for her, and they will be receiving my invoice in the next day or so, and obviously I shall be in touch with the various people we were working for to get their statements for my counterclaim?

 

I really feel I need to send a short, curt email acknowledgment to this to show I'm not remotely intimidated, because this is what I think this estimate of costs is supposed to do.

 

The only thing that is holding me up on the invoice is the bloody telephone calls. I honestly don't know which ones were related to the business and which ones weren't, and I can't find out without calling them all? I can show my mobile phone costs quadrupled in comparison with previous months. I think I can put down an estimate, providing it's reasonable.

 

There's also the matter of what I should charge for all the time when I was working for the company before it was formally incorporated, and obviously Elsa has given me the Chapter and Verse of the Companies Act, reliance on her before incorporation, which is included in the letter I have been working on, also including the IOUs, and their validity.

 

Does £100 a week sound unreasonable? I was in touch with her every week about this company.

 

Anyway, what do you think?

 

I think I should send off a very short email saying

 

Dear Sir,

 

I acknowledge receipt of your letter and enclosures of xxxxxx. Clearly your client is in "complete denial" (this is using a phrase of hers about the money) about the enormous input I made to (the company) and you will be receiving my invoice for these services within the next day or so. Obviously I now need to enter a counterclaim against your client should she fail to pay my invoice, and will advise the Court of this.

 

I have records of the work I did on behalf of (the company), including copies of correspondence with clients, potential clients and telephone records. I will obviously need to contact various witnesses to give evidence on my behalf. I have spoken to people who are horrified by your client's conduct. I have not wished to involve them but must now do so.

 

Clearly you and your client do not wish to acknowledge the work I did on behalf of (company), and are trying to pretend that the monies advanced to me were on the basis of personal loans, but the fact remains that I have proof of what I did for the company, and your client has failed to answer the question: "On what basis did she think I was working for her?" I expect any judge would see through this.

 

She had made a number of untrue statements in her Allocation Questionnaire statements before she instructed you, as you are aware, so I am not surprised that she is trying so very hard to state that the funds had nothing to do with the company.

 

With regard to the IOUs, I will refer to these in my letter which you will receive later this week. Apart from one, they show no payment dates, nor do they state "payment on demand".

 

Y/s

 

I just feel I need to send something like that straight back to show I am not intimidated. I don't think it's a knee-jerk reaction, as they sent the email yesterday

 

Obviously the solicitor has a rich client here!

 

DD

Edited November 3, 2009 by Desperate Daniella

[pedross]

Hi DD

 

This is just my opinion please obtain others.

 

I don't think you should rush the reply I think if you are going to reply it needs to be calculated and accurate. You need some comments from the real legal bods on the site to guide you.

 

The legal case is that they she is claiming the money on the IOU's. She is saying you owe the money and she wants it now.

 

The issue is that you either owe the money with no conditions or you owe the money with conditions. I don't think you dispute that you owe the money but I think that there are conditions as to how and when you should repay it. Therefore my post about the IOU's could be very useful but you need a legal opinion about it.

 

If the situation with the IOU's is as I understood in my post then your point should be that you will claim that the money is not yet due and it is only due from the proceeds of the company. Your next point should then be that if the court does not accept that it is due from the proceeds of the company then the invoice you have produced for work you completed for the company is payment of the debt by crediting the amount against the debt as a contra exercise.

 

Thats a quick thought from me but I really think you need more opinions first.

 

However, if they really have paid the fees (you should check with the court) then you should be planning the defence not playing games with the solicitor.

 

Pedross

[Desperate Daniella]

There again,

 

Maybe I should just say:

 

I acknowledge receipt of your letter and enclosures.

 

I will be sending you an invoice for the work I did on behalf of (company).

 

Clearly I need to make a counterclaim against your client.

[Desperate Daniella]

Hi Pedross,

 

I have been working on a very complex letter to her solicitor, and had a horrible few days.

 

I do dispute that I owe the money, on the basis that I worked for well over 100 hours on behalf of her company, on the basis of her assurances that I would be paid for the work. You could well be right that in order to prove that she owes me the money for the work I have to counterclaim. I wish someone on this site could tell me how I go about changing my original defence to an equitable defence, because that way I don't have to pay out £200. I also don't know what happens if I do enter a counter claim with regards to court fees, hearing fees. Anyone?

 

DD

[Desperate Daniella]

Also Pedross, or maybe that should be 'Alas Pedross', there has been no sight of any legal bods on this thread since it started.

[pedross]

I personally believe that the IOU's are an acknowledgement of a debt and not a promise to pay it as I mentioned in my IOU post.

 

You agreed to repay it from the income that would become due to you from the company. So if you prove the income that you claim has become due I am not convinced that it is a counterclaim. I think it is proof that the debt is being repaid as agreed or has already been satisfied. If they claim that the debt is not yet satisfied in full or at all then until there is more income from the company it cannot be repaid. You were a director of the company so she cannot claim that you were self employed in the work you did while you were a director. Therefore I do not see why you now need to invoice them just provide a breakdown.

 

My defence would be that the agreement was to repay it from income from the company which is why no repayment date could be put on the IOU because it was an unknown date and maybe still is.

 

You must decide if I am on the right track or not it's just my opinion.

 

Pedross

[pedross]

Also Pedross, or maybe that should be 'Alas Pedross', there has been no sight of any legal bods on this thread since it started.

 

I am sure CB knows how to find one.

[caro]

Legal bods are a bit thin on the ground being a self help site. What is it you're asking for exactly?

[Desperate Daniella]

I have no idea what income she has had from the company because they are refusing to provide the accounts/bank accounts, etc, saying they would only have to provide them under CPR if I entered a counterclaim.

 

You are absolutely right that there couldn't be a repayment date specified.

 

She (and solicitor) are completely ignoring the fact that I was a director of the company, did all the work, and they won't answer Elsa's brilliant question about on what basis I did the work.

 

Clearly they are trying to frighten me. What do I do?

 

DD

[pedross]

Hi Caro

 

Thanks for looking in. DD has summed up the claim details in post 227 and I have posted my thoughts on the validity of the IOU's in post 239.

 

Perhaps 'legal bods' was a bad choice of words but some posters have a better legal knowledge than others and I think DD just needs to make sure that she goes in with the correct defence.

 

In fact surfaceagentx20 is a whizz at this type of problem as are others who you may be aware of better than I.

 

Pedross

[caro]

Hi Citizen B,

 

The long story is at the beginning of the thread but to summarise:

 

My friend asked me to start a company with her. She said she had the contacts to get us business but not the expertise, which I did. I explained to her that I was very concerned about my financial situation, and my own business, (was seriously considering emigrating and at that time would have had enough money to do so) and could not really take time out for this business unless it brought in money quickly. She assured me that if I needed funds during the setting up period she would advance these against future income from clients.

 

We started trying to set up this business in early 2007. I did 90% of the start up work. She procrastinated about everything and instead of the business being up and running with a few weeks it dragged on for over a year, and during this time I had endless meetings with her, going over, and over, and over the brochure design, meetings with website designers, etc.

 

She had said the shares of the business would be split 50/50 and I believed her. She registered the company in 2007 at Companies House. I was named as a Director but she put herself down as a 100% shareholder. I didn't check. I trusted what she had said.

 

During this time she advanced various sums to me when I really needed them. Most of this money was paid back to her in March 2008 as I did not want the money to go up and up, and I was only taking these advances on the basis of need. At that time there was only £1,500 outstanding and I asked her again if she really wanted to continue with the business and was absolutely committed to it and she assured me she was.

 

Three months later we still hadn't started the business, she wasn't approaching any clients so I took matters into my own hands and found the first one and we started work. Set out press release, etc at this time too.

 

I was having a great time working on the first project. The client, advisors and others we were in contact with were saying I was doing a great job and I was really enjoying it and she got very jealous. Clearly she had no real interest in the company - she could have done research and helped but she never did.

 

She tried to keep me away from the next two clients but had to put me in touch with them as she was going on holiday. Both had needed help urgently but she had made one phone call. (Only last week I heard that she took on a client in January this year, took the registration payment, and has done absolutely nothing for them.)

 

She became very nasty and snide towards me and decided to throw me out of the company, saying it was all hers because she had paid for the registration at Companies House. She wrote to me saying I could work for her on a self-employed, self-funding basis, which she knew was impossible for me - my phone bill had quadrupled and the car was eating up petrol at £1.21 a litre at the time - and said I therefore terminated my employment. As far as I was aware all the time I was working on behalf of the company it was as a 50% shareholder, not as an employee.

 

She refused to speak to me, just sent nasty emails demanding that all stationery, brochures, etc., be delivered to the porter at her flat, and that I had no rights to anything. She did not at that time, October 2008, make any mention of repaying the advanced monies, she just thought of it in March this year, and issued court proceedings which I have defended.

 

She made no reference in her POC to the company, saying the loans were from her personally. They did come from her bank account but only because the company did not have a bank account. That account was set up in August 2008 when we got the first client. She is saying the amounts would have been entered in the company's books if they had been anything to do with the company. There were no books - she herself kept receipts for any expenses she incurred in a folder to be claimed back from future client income.

 

Were these books on the disclosure list and have you seen them now?

 

She made a number of untrue statements in her AQ statement. This was before she got a solicitor. They relate to the business. One for example says I was demanding money for petrol and expenses before the company brought any money in. She had said she'd advance it anyway, and at that time all three of the clients had told me they had paid the registration fees.

 

She will not supply the accounts and bank statements I asked for under CPR because they will obviously show that she lied.

 

Has she still failed to comply with your CPR request?

 

She has refused to state on what basis she thought I was working for the company. That has been ignored.

 

My defence includes copies of correspondence with her which shows exactly what I was doing for the company, and the documents attached to my Defence have a chronological statement of everything I did and how she behaved towards me. In her witness statement she describes this as a "partisan" account. She previously in the AQ statement said that it was all her idea and I had "no input". I was a director of the company. Why would she have paid for stationery with my name on as a director if I had "no input".

 

My witness statement pointed out all the lies she had told in her AQ statement. Her witness statement says the company has nothing to do with it.

 

She actually states that there were no discussions about the money being advanced against future income of the company. What does she think I was doing all the work for?

 

The case was allocated to Fast Track in July and to date she has not complied with one Direction on time.

 

Has she complied with them all now?

 

Her Standard Disclosure List was supplied five weeks late. I could not inspect the documents I requested it from it because they have not been supplied.

 

Has she still failed to comply with disclosure?

 

Her witness statement was provided four weeks late, this Friday.

 

As of Friday her pre-trial checklist and payment for the court fee and the listing fee due on 16th November had not been received by the court. It wasn't struck out because of non-payment of fees as four court officers told me it almost certainly would be, and she has been given until 6th November to comply. This has upset me dreadfully. She and her solicitor are completely ignoring Directions and just get away with it.

 

Have you posted directions anywhere on the thread? If so please link to them or quote the post number.

 

I would counterclaim if I had the funds, but it is £200 so I am wondering about an Equitable Defence, but the court hasn't heard of it, and I don't know how to go about getting it registered at the court as an Equitable Defence.

 

Where have you heard about equitable defence? If the court haven't heard of them, you will have to show them the CPR or legislation that allows this. It isn't something I've heard of either.

 

I am wondering if I should send her an invoice for all the work I have done - Elsa has given me some fantastic links here about being reliant on her assurances, etc., quantum meruit, etc.

 

Clearly they want just to say that they were personal loans on IOUs. Need more info on whether these would be legally binding. I have got to bring in all the work I did as my Defence.

 

Hope that is clear - ish. Sorry if I have missed anything out as I am trying to keep it brief - ish.

 

The case is listed for 17th December. I know that in some cases if there is a counterclaim you can apply to have it heard at the same time, because even if I put in a counterclaim in the next fortnight, surely she would get the 28 days to respond to that, just like a normal claim?

 

Just very frightened that if I don't do the counterclaim the judge will just say I had the money and have to pay it back.

 

DDx

 

If she hasn't complied with CPR, directions or disclosure I'd be inclined to apply for the case to be struck out.

[Desperate Daniella]

Hi Caro,

 

I really have tried to help people on CAG wherever I could, and I appreciate it's a self-help site, but I know there are people with legal knowledge here so I'm hoping they can give me some advice.

 

Thank you for coming on the thread. I need some help on IOUs, and Pedross has been brilliant about this, but I'd love some legal advice here. I need to know how to put in an Equitable Defence.

 

Elsa has also given me enormous info about company law.

 

She is claiming £9000-ish, plus her estimated costs of £6,400-ish. She threw me out of a company we started together purely out of jealousy and spite (part of which was directed at my four-year-old daughter). Now she is trying to ruin me.

 

I really need help here.

[caro]

It's the luck of the draw who is available and if they pick up on your thread. I've given what limited input I can and others with more knowledge may be able to help, but please don't rely on it. For example I know PT is very busy at work at the moment. Also your claim is not typical so I'm not sure who may have specific knowledge in this area of the law.

 

Can you link me to information on equitable defence and we'll see what we can do to work through it.

[caro]

From what I've read, I'd still be inclined to think about applying for the claim to be struck out.

[Desperate Daniella]

HI Caro,

 

Our posts crossed.

 

In answer to your questions:

 

There were no such books as such. She didn't organize a bank account until the first clients were taken on in August 2008 and all her expenses were just in a file. First accounts were due in October 2008, and her solicitor is refusing to respond to the CPR because they say they are irrelevant in this case and would only supply them in a counterclaim, so they are ignoring the CPR request.

 

I asked for inspection of two things she has listed, and her solicitor has ignored them, but on the Listing Questionnnaire she/he says they have complied. I hadn't chased him because they'd ignored all other Directions and I thought they might not proceed after they didn't pay the fees on time.

 

I haven't applied for Directions because I can't afford the £75 because the Court said she could just apply to have those Directions set aside, so it would be wasted money. Every time she missed a Directions deadline I notified them, but they refused to do anything unless I paid. Even when the orders said she had to pay the fees by 16th October and she didn't, I applied for a strike out by letter on the basis that she hadn't complied with a single Direction and hadn't paid the fee on time, the court still gave her another three weeks to comply.

 

Dad (on this thread) posted about Equitable Defence, and I googled it and it says that you can defend on the basis that they owe you money (in this case because of all the work I did) and therefore you don't have to pay the £200 for the counterclaim.

 

Thank you again for looking at this thread. Think I have answered all your questions. Let me know if I haven't made something clear.

 

DD

[Desperate Daniella]

Caro,

 

I realize it's not the normal (bank/credit card/employment question) but it is a (sort of) employment question, and I've been getting tremendous help and support from everyone on the thread, but could just do with some legal insight if anyone has the time.

 

Thank you.

 

DD

[caro]

I was wanting to know what the courts directions were.

 

I will see if I can find what Dad has said about equitable defence, but you need to find out more about it if you are to convince the court.

 

I understand that the court fees are expensive, but, assuming that you aren't eligible to be exempt from them, they are a hell of a lot cheaper than this claim would cost if you had to pay up, and could get it out of the way a lot sooner.

 

At the same time as applying for a strike out you could ask for wasted costs.

 

Have you posted anywhere about the claimant's witness statement?

[Desperate Daniella]

Court Directions were (I think) the normal. Standard Disclosure, Inspection on request of any documents, Witness Statement, and then Claimant (and me) to produce Pre-trial checklist and Claimant to pay Listing Fee and Hearing Fee on 16th October - £600 in total. Every time she missed a deadline I contacted the court who said I could go for a strike out if I paid, but she could have it overturned. They then told me that if she missed the deadline for the payment of the £600 fee and Pre-trial checklist it would be struck out by the Court and no need for me to pay a fee but then they gave her another three weeks. Why? Why can't they see that a claimant who hasn't got all her case on time is dodgy?

 

They are hiring a barrister. She can afford it.

[caro]

I've seen dad's post, but all I can find on the issue relates to Australian or US law, and a search of the CPRs doesn't come up with anything either. I did find something on equitable estoppel but not sure if this helps.

 

Estoppel - Wikipedia, the free encyclopedia

[Desperate Daniella]

Caro,

 

Thank you so much for that. It does sum up what she did to me very well.

 

My brain is not working well this morning - exhausted by it all - and I'm not certain how to phrase this in a letter to her solicitor to tell him that they cannot ignore everything I did for her company and the assurances she made and just deny it all because I can prove everything I did for the company and wouldn't have done anything it it hadn't been for her assurances.

 

Will carry on drafting but I'd be very grateful for any input.

 

DD

[lexis200]

DD - am I right in vaguely remembering you saying she had in fact set up the company with herself as a 100% shareholder, even though she told you it was 50/50? Or is this just something she said in her statement?

[Desperate Daniella]

Morning Lexis,

 

Yes. The first I knew that I had not been a shareholder was when she put that in the statement she sent in with the Allocation Questionnaire. She told me when she set up the company that it was 50/50. When I downloaded the info from Companies House it confirmed that she held all 100 shares, but I was named as a Director.

 

This estoppel stuff is great because it goes back to my reliance on her statements but of course in her Witness Statement they are just ignoring anything I did for the company, just saying my account is highly partisan.

 

Although I provided a lot of copies of email correspondence between us which backs up what I have said, I also have loads of copy letters I sent to potential clients' advisors which is more proof of what I was doing.

 

Morning Elsa and Shadow!

 

DD

[Undercover-Elsa]

Morning dear!

I'm just multitasking whilst mulling over some thoughts about your case.

[Undercover-Elsa]

Do you know how much she received from the clients as deposits, roughly, in total?