Company Car- left employment now being chased for upgrade costs...

[Undercover-Elsa]

Hi M200,

Might be an idea to try posting your problem on the Swarb legal forum too.

They're not as friendly as on here, but very businesslike.

I'd advise writing your circumstances as briefly and concisely as possible in a word doc, then copy/pasting your question on their forum once you're happy with it.

Whether or not you qualify for legal aid, check solicitors in your area to see which offer a free half hour initial consultation.

You could also check out whether you qualify for pro bono help here:

The Bar Pro Bono Unit: Free Legal Advice and Representation

 

Good luck and best wishes,

Elsa x

[MrShed]

Hi M200,

Might be an idea to try posting your problem on the Swarb legal forum too.

 

Cant argue with that advice

[m2000]

Thank you all, so so much

 

I am still very worried, and hate the prospect of having to attend court. Do you think that there is a chance it will be sorted out prior to a physical court hearing?

[MrShed]

At this stage, almost certainly not.

 

I assume you have never been to court before?

 

It isnt something to worry about. Its basically in an office, and is "relatively" informal.

 

It isnt some high powered lawyer battle like you see in films and TV.

 

Many people describe it as being similar environment to a meeting at work.

[m2000]

No, never been to court before.

 

I am worried, as the lawyers they are using are, or certainly appear to be, very robust and agressive. I am relaly concerned that the fact they have chosen not to accept my offer of £50 per month (which is all I can go to) means they have something up their sleeve..

[MrShed]

Solicitors in many cases rely on tying the LIP (litigant in person) in legal knots.

 

That isnt what small claims is about - small claims is about two sides putting their side of the story and deciding (on the balance of the evidence) who is correct. Nothing more.

 

I doubt they have something up their sleeve - they simply believe they are in the right.

 

They may, in fact, BE in the right - but at this stage I feel you have some good arguments (none cast iron mind) and it should be up to a court to decide.

 

More importantly, if nothing else, the court will usually allow a scheduled repayment based upon what you can afford.

[m2000]

Yes - at this stage I guess i jsut need to concentrate on putting everything down in writing and within the timescales.

 

The defence statement is the hardest part of the document, as its not jsut tick boxes, its all freehand. At least now I have a basic structure/number of points

 

Thanks again

[MrShed]

When is the deadline to submit defence by?

[m2000]

The cliam was is dated 4th Feb, I have submitted the acknowledgment of service saying i wish to defend, which gives me an additional 14 days to provide my defence... i hope!

[Undercover-Elsa]

The fact that you have offered them payment at £50 a month (a very realistic offer) which they have refused should go in your favour with the Judge. It highlights how unreasonable they have been, perhaps to the degree of abuse of Court Process by failing to accept your offer of payment to obviate the need for Court action?

[m2000]

In the Birmingham County Court

 

Claim number ______________

 

Between

 

XXXXXXXX Society - Claimant

 

and

 

Mr M2000 - Defendant

 

1) The defendant was an employee of XXXX Society from xxxxx until xxxxx

2) The details in the POC outlined by the Claimant surrounding the notice period given, as well as the details within the contract of employment are not disputed.

3) The defendant disputes the figure owed, and whether any monies are owed at all, based upon the following points.

4) The Claimant has granted usage of the vehicle in question to a new employee within the company.

5) The Claimant has failed to demonstrate to the defendant that this case is not a double recovery, other than a written statement that no double recovery is taking place. There has been no proof provided that the new employee is not, and has never been, paying for the upgrade lease costs in question.

6) If the Claimant can prove that no such payments have been occurring, then the Claimant has failed in his duty to mitigate the loss due to breach in contract.

7) Moreover, the terms and conditions relied upon by the Claimant have not in fact been enforced by them in other circumstances. Specifically in the case of not enforcing upgrade payments upon the new employee, but also by not enforcing upgrade repayment on two other previous employees who left the employment of the Claimant - hence the defendant can only assume that the decision to enforce in this case is inconsistent and based upon discrimination for some unknown reason.

8 ) The Claimant has furthermore prevented any further possibility of mitigating loss by providing the vehicle to the new Employee, therefore preventing the return of the vehicle to the lease company (at lower overall cost) or by re-allocating to an employee and charging this employee the upgrade cost, as detailed in the Society’s Car Policy.

9) Furthermore, the Claimant has provided no proof of the actual financial loss, and has not demonstrated that the alleged money owed has been paid to the third party lease company.

 

10) If such payments have not been made, then no interest will be due regardless of the results of the rest of the claim.

11) The defendant therefore wishes to defend the entire claim entered by the Claimant, as the Claimant has made it clear that no further correspondence will be entered into, and hence the defendant has no way of acquiring evidence (including but not limited to: Schedule of Payments to the lease company with proof of payment, schedule of payments made by the new employee in possession of the vehicle to the Claimant, and full Terms and Conditions of the lease agreement detailing early termination charges) without defending in court.

[m2000]

So the above is the slightly edited draft version of my defence.

 

Can anyone think of any further points/angles?

 

Thanks again guys, you are all really helping

 

I will buy you all a virtual beer!

[m2000]

Wondering if I should add a point about me offering a monthly settlement which was offered on a not accepting liability basis, but with the intention of amicably resolving the claims outside of court and that it was turned down by the claimant?

[MrShed]

It is worth mentioning, but I'm trying to think how to word it without it coming across as "well I offered to pay, they rejected, so now I'm not paying at all"...

[Jasper1965]

9) Furthermore, the Claimant has provided no proof of the actual financial loss, and has not demonstrated that the alleged money owed has been paid to the third party lease company.

 

10) If such payments have not been made, then no interest will be due regardless of the results of the rest of the claim.

One would assume that being a lease agreement the company have been making a monthly payment in respect of this vehicle which then throws their claim for the interest on the amount into disarray. They are claiming interest as though the payment was made as a lump sum in full at the inception of the contract. I suspect that they've been paying it by means of an increased premium on a monthly basis and if this were the case the interest claimed is wholly innacurate.

 

TBH. I am inclined to suggest that you enter nothing more than an "Embarrassed Defence" at this stage. It will give you an opportunity to put the claimant on the back foot a bit and also bring into court the fact that they have been unco-operative and inconsistent.

 

Here's a sketch, for heavens sakes don't use this but you should get the gist.

 

The defendant is unable to either admit or deny the claim whether in full or in any part since the defendant is embarrassed by the lack of documentary evidence supplied to him by the claimant despite request.

 

The defendant avers that without sight of the original lease agreement he is unable to establish whether the perceived loss claimed against him might have been mitigated by the claimant returning the vehicle under the terms of any early redemption clause attached to this agreement, the defendant puts the claimant to strict proof that the amount claimed against him could not have been mitigated by an early termination of the vehicle lease.

 

The defendant avers that without sight of the original lease agreement he is unable to establish whether the perceived loss claimed against him might have been mitigated by the claimant downgrading the vehicle under any relevant term of that contract which may or may not exist, the defendant puts the claimant to strict proof that the amount claimed against him could not have been mitigated by replacing the vehicle with the standard model at the appropriate time.

 

The defendant avers that without sight of the original lease agreement he is unable to establish whether the interest claimed upon the perceived loss is lawfully due in the amount claimed. The defendant avers that the claimant is not entitled to the interest in the amount claimed unless the claimant is able to prove that the payment in respect of the upgrade was made as a lump sum at the inception of the lease rather than as an additional sum above the value of the standard vehicle on a monthly payment basis.

 

The defendant avers that by failing to charge the current driver of the vehicle in question the claimant is in breach of the very same part of their own terms and conditions that they seek enforcement under by virtue of this action and this breach is a gross failing on behalf of the claimant to mitigate their perceived loss. The defendant puts the claimant to strict proof that they have failed to charge the current driver of this vehicle for the upgrade.

 

In the event that the claimant can prove that the current driver receives the benefit of this vehicle at no cost to themselves, the defendant intends to enter a counterclaim to this action under CPR part 20 in the whole amount claimed against him and will apply to have this third party benefactor made party to such a counterclaim, it appears that the claimant is happy to seek enforcement of their contract of employment through the Courts against specific but not all ex-employees yet strangely reluctant to enforce exactly the same term against this current employee. The defendant avers that this failure of the claimant to apply the same term of the same contract to the current employee is the action which has directly led to the loss claimed in this action. No loss would have occured had the claimant been consistent in their application of this contract for any shortfall would have been met by the current employee who does after all enjoy the benefit of the upgraded vehicle at no cost to themselves contrary to the terms of the claimants contract. The claimant had the opportunity to completely mitigate their perceived loss by charging the new driver of this vehicle. That the claimant failed for whatever reason to charge this owner should not be a matter for the defendant to be held culpable or compensate.

 

The defendant avers that any loss perceived by the claimant has arisen because the claimant has failed to charge the current user and the current user has failed to pay the balancing payment in question for a large number of months, both failings being contrary to the terms of the contract which the claimant seeks to enforce. In the event the Court finds the term enforceable in Court against the defendant, the defendant will seek by way of the counterclaim to have the same term enforced upon the claimant and the current employee in order to mitigate his liability under this claim.

 

In the event that the claimant cannot prove that the current driver receives the benefit of this vehicle at no cost to themselves, the defendant avers that the claimant is attempting to enrich themselves unjustly by double claiming the upgrade amount from both owners of the vehicle.

 

The claimant has indicated that they are unprepared to furnish the defendant with the information required to ascertain his standing in this case, this unwillingness to co-operate being a breach of the CPR rules on the duty of disclosure.

 

The defendant wishes to be permitted to serve a correctly pleaded defence to this claim once the claimant has either voluntarily or under an enforcement order of this Court complied with their responsibilities under CPR and furnished the defendant with the documentation which will enable the defendant to accurately assess what liability if any he has in this matter.

Edited February 13, 2010 by Jasper1965

[MrShed]

I think thats rather good Jasper

[Jasper1965]

Why thank you MrShed.

 

You can see where I'm going here, leave the Court in no doubt that there's more than a little monkey business going on at the claimants end, stick the boot in a couple of times and possibly prepare the claimant for a counterclaim by virtue of enforcement of exactly the same term against the current driver of the vehicle under the same action. I think a counterclaim would be effective because the OP has the right (if adverse judgment is forthcoming) to have his liability mitigated and how better than to seek mitigation through enforcement of exactly the same term in a contract as that under which judgment was obtained?

 

The claimant is only claiming a debt is owed because for whatever reason the claimant failed to charge the subsequent user for the upgraded vehicle. I don't see why that should be the OP's fault.:-|

 

 

(But I do think it's a point the OP should take and beat the claimant over the head with time and time again:D).

[m2000]

Good Morning All,

 

Jasper1965 - you are a star!!! I like it....

 

So, to ensure I am on the same track as you and MrShed, we will use the embaressed defence, along the lines of what is above?

 

Shall I leave the fact that I offered a "gesture of goodwill" payment plan out of this stage of defence, I can then play this card if needed at a later date???

 

Once again, MANY thanks to both Jasper1965 and MrShed, and all those who are helping!

 

Keep any views/ideas coming!

 

Many thanks you all!

[m2000]

Ok - here is the new draft defence. Does it flow correctly? have I broken the points up too much?

 

 

 

In the Birmingham County Court

Claim number XXXXXXXXX

 

Between

XXXXXXXXXXX - Claimant

and

Mr M2000 – Defendant

 

1) The Defendant was an employee of XXXXXX from xxxxx until xxxxx

 

2) The details in the POC outlined by the Claimant surrounding the notice period given, as well as the details within the contract of employment are not disputed.

 

3) The Defendant is unable to either admit or deny the claim whether in full or in any part since the Defendant is embarrassed by the lack of documentary evidence supplied to him by the Claimant despite request.

 

4) The Defendant avers that without sight of the original lease agreement he is unable to establish whether the perceived loss claimed against him might have been mitigated by the Claimant returning the vehicle under the terms of any early redemption clause attached to this agreement, the defendant puts the claimant to strict proof that the amount claimed against him could not have been mitigated by an early termination of the vehicle lease.

 

5) The Defendant avers that without sight of the original lease agreement he is unable to establish whether the perceived loss claimed against him might have been mitigated by the claimant downgrading the vehicle under any relevant term of that contract which may or may not exist, the defendant puts the Claimant to strict proof that the amount claimed against him could not have been mitigated by replacing the vehicle with the standard model at the appropriate time.

 

6) The Defendant avers that without sight of the original lease agreement he is unable to establish whether the interest claimed upon the perceived loss is lawfully due in the amount claimed. The Defendant avers that the Claimant is not entitled to the interest in the amount claimed unless the Claimant is able to prove that the payment in respect of the upgrade was made as a lump sum at the inception of the lease rather than as an additional sum above the value of the standard vehicle on a monthly payment basis.

 

7) The Defendant avers that by failing to charge the current driver of the vehicle in question the claimant is in breach of the very same part of their own terms and conditions that they seek enforcement under by virtue of this action and this breach is a gross failing on behalf of the claimant to mitigate their perceived loss. The Defendant puts the Claimant to strict proof that they have failed to charge the current driver of this vehicle for the upgrade.

 

8.)In the event that the Claimant can prove that the current driver receives the benefit of this vehicle at no cost to themselves, the Defendant intends to enter a counterclaim to this action under CPR part 20 in the whole amount claimed against him and will apply to have this third party benefactor made party to such a counterclaim. It appears that the Claimant is happy to seek enforcement of their contract of employment and Car Policy through the Courts against specific but not all ex-employees yet strangely reluctant to enforce exactly the same term against this current employee.

 

9) The Defendant avers that the failure of the Claimant to apply the same term of the same contract to the current employee is the action which has directly led to the loss claimed in this action. No loss would have occurred had the claimant been consistent in their application of this contract for any shortfall would have been met by the current employee who does after all enjoy the benefit of the upgraded vehicle at no cost to themselves contrary to the terms of the claimants contract.

 

10) The Claimant had the opportunity to completely mitigate their perceived loss by charging the new driver of this vehicle. That the Claimant failed for whatever reason to charge this owner should not be a matter for the Defendant to be held culpable or compensate.

 

11) The Defendant avers that any loss perceived by the Claimant has arisen because the Claimant has failed to charge the current user and the current user has failed to pay the balancing payment in question for a large number of months, both failings being contrary to the terms of the contract which the Claimant seeks to enforce.

 

12) In the event the Court finds the term enforceable in Court against the defendant, the Defendant will seek by way of the counterclaim to have the same term enforced upon the Claimant and the current employee in order to mitigate his liability under this claim.

 

13) In the event that the claimant cannot prove that the current driver receives the benefit of this vehicle at no cost to themselves, the defendant avers that the Claimant is attempting to enrich themselves unjustly by double claiming the upgrade amount from both owners of the vehicle.

 

14) The claimant has indicated that they are unprepared to furnish the defendant with the information required to ascertain his standing in this case, this unwillingness to co-operate being a breach of the CPR rules on the duty of disclosure.

 

15) The Defendant wishes to be permitted to serve a correctly pleaded defence to this claim once the claimant has either voluntarily or under an enforcement order of this Court complied with their responsibilities under CPR and furnished the defendant with the documentation which will enable the Defendant to accurately assess what liability if any he has in this matter.

[MrShed]

Its certainly 10 times better than you had 24 hours ago

 

It looks good to me.

 

I know that Jasper says not to use it, but it looks good to me.

[m2000]

Cheers MrShed! I still have a week or so before it needs to be submitted, ill leave sending it until the last minute, may be able to think of some more ammunition!!

[m2000]

Not sure what you all think, but should I add an extra point expressing the fact i have made previous offers? i.e....

 

16) The Defendant has, on numerous occasions, expressed his desire to resolve the issue amicably and, as a matter of goodwill offered to make token payments in the region of £30-£50 per month. The Claimant has refused this offer and has continued to pursue the matter to the stage we now find ourselves in

 

Also, is it worth adding something in about my now limited financial means or would that go against what I am trying to do here?? I basically took a lower paid position outside of the industry and that justifies the goodwill gesture i was looking to pay?

Edited February 14, 2010 by m2000

[m2000]

Hello again All,

 

Has anyone had any thoughts on the use of the extra points above?

 

Also... do you think it would be a good idea to add a further point basically raising the fact that two previous members of staff who also both had upgraded vehicles and left employment of the company were 'let off' paying their alleged liability. This flies in the fact of the company car policy which clearly states "ANY employee leaving" will have to pay back...

 

 

Thanks again all

[Loser4u]

I don't think you should make reference to the other two people as they left under different circumstances to you. This may well have been negotiated into the deal for them to go as part of an agreement.

[monkeychicken]

"you need evidence of this by way of a statement from the person who told you. Perhaps by telling them that you are being asked to pay for the new guys upgrade - try to get the stateemnt signed"

 

I think the above will be impossible... the person who told me this still works there and has already told me it is strictly off the record

 

 

Hi OP

you seem to be getting some good advise- way better than anything I could suggest. However, just two points - firstly, you could simply state in your evidence that and existing employee has told you that the new employee actually wanted the upgrade and this is simply a case of the company trying to force you to pay the upgrade costs of the new employee. Also state that the person advising you of this information did so anonymously as they were fearful of their position.

 

Than state that the original signed vehicle request form of the new employee would clear up the issue.

 

This may force them to disclose the form and also call the new employee as a witness.

 

This part of your statement, because its hearsay, will carry less weight, however together with the other points, may strengthen your case.

 

Secod point in the next post.