Employer wants 3 years of salary back!!! - ** Case struck out **

[oldmanmille]

Thanks Gordies and Andy...now I might be too late becuiase whilst i was away the Allocation forms came for me and my wife and I have until the 25th May to get them back to Court. Does this mean i am too late for CPR 24.2 and CPR 3.4?

 

If i am OK with submitting them what sort of costs am i likely to incur?

[oldmanmille]

I am now just looking at CPR 24.2 but I cannot see a form to fill out - can you let me know what it is please, thanks...sorry for being a pain!

[andydd]

Nope..theres no hard and fast rule for SJ or Strike out, it just says it should be done (ideally !)before allocation to a track, apparently you should mention you are going to apply for SJ/SO on the allocation form (although bit confused here, as I read form actually had question asking whether you were going to apply for SJ, but the form I had didnt have this section), anyway..I sent off my allocation questionaire and then waited to see if court would do SJ or SO on its own inititaive (they have the power to do this for obviously hopeless claims....as your appears), anyway they didnt do it of own initiative so I put in application.

 

There was a delay in my case as it wasnt allocated straight away and there was due to be allocation hearing in June so my SJ/SO was still after allocatiopn questionaire but still before actual allocation.

 

So even if your AQ form like mine doesnt have question about SJ, it would be best to fill it in normally but add extra note that you will apply for SJ/SO..and then ideally make sure you ghet that application in before the nactual allocation (which make take a few weeks/months depending on how busy court is).

 

Andy

[oldmanmille]

Guys, I have just re-read all of your advice and looked at what I have received. I better go over each of them to let you know what i now have and what my intentions are:

 

I have received the following:

1. Claim forms (me and my wife as seperate defendants but same claim numbers)

2. Claimants breakdown of their claim and their 'proof' - just a list of moinies they have paid me and my wife and what I have spent on company credit card over 3 years

3. Allocation questionnaire

 

I have completed the following:

1. Allocation questionnaire

2. N244 (Strike Out order)

 

So,

1. Do I send off the Allocation Questionnaire as instructed by 25th May?

2. Do I send off N244 before the Allocation Questionnaire?

3. What do I fill in for Summary Judgement?

 

Apologies in advance for being a bit thick on this but I see from your message Andy that ''.... easy to win becuase the other side ignored CPR 24.5 and didnt file evidence so Judge wasnt plaesed....''

 

However, ex employer has sent me 'evidence' and assume they will send same 'evidence' when they complete the allocation questionnaire. Or am I incorrect on my assumptions?

[oldmanmille]

Nope..theres no hard and fast rule for SJ or Strike out, it just says it should be done (ideally !)before allocation to a track, apparently you should mention you are going to apply for SJ/SO on the allocation form (although bit confused here, as I read form actually had question asking whether you were going to apply for SJ, but the form I had didnt have this section), anyway..I sent off my allocation questionaire and then waited to see if court would do SJ or SO on its own inititaive (they have the power to do this for obviously hopeless claims....as your appears), anyway they didnt do it of own initiative so I put in application.

 

There was a delay in my case as it wasnt allocated straight away and there was due to be allocation hearing in June so my SJ/SO was still after allocatiopn questionaire but still before actual allocation.

 

So even if your AQ form like mine doesnt have question about SJ, it would be best to fill it in normally but add extra note that you will apply for SJ/SO..and then ideally make sure you ghet that application in before the nactual allocation (which make take a few weeks/months depending on how busy court is).

 

Andy

 

OK i got it Andy, I think! Complete the AQ and add in that I am applying SJ/SO and send it back to Court by 25th may. In addition submit Applicatyion Notice (N244) and see what they allocate - either SJ and/or SO or whatever they feel fit.

 

Thanks.....

 

John

[andydd]

Theres no specific form for CPR 24 or indeed CPR 3.4, you use the general N244.

 

Ill find mine, i just filled in form N244 and in 3. I put

 

Summary Judgement

Pursuant to CPR 24.2

and/or

Strike out of Claimants statement of case

Pursuant to CPR 3.4

 

and then I attached my statement of case.. (See attached)

 

As you can see my m,ain argum,ent was abuse of process, but my alternmative argu,ment (2) was that claim was bound to fail anyway.

 

Andy

Summary Judgement.pdf

[oldmanmille]

Excellent, thanks Andy, i think i am on top of this now...just printing out forms and ensuring all things square...wife in bed as she had a belly full of it now.....

 

Cheers,

John

[Gbarbm]

As you know John, can't help with the legal stuff, but just wanted to wish you all the best.

Keep us updated. I'm sure that once the district judge is in full procession of the facts he will strike out the claim and award you your wasted costs!

 

Regards

Gbarbm

[andydd]

Excellent, thanks Andy, i think i am on top of this now...just printing out forms and ensuring all things square...wife in bed as she had a belly full of it now.....

 

Cheers,

John

 

Remember that the hearing will generally be paper only..not oral..ie. not lots of questions, so make sure you put all of your points in the statement of case, you can continue to file evidnce later on (I did !) but it must be relevant evidence reffered to in yourb statement of case, i.e not bringing up new points.........(although itn is possible to amend statemenmts of case but at a cost).

 

The 7 days rule is the respondent must file his response/'defence' 7 clear working days before hearing date, if you wish to respond to that, you must file your further respionse 3 clear working days, (this applies to cpr 24, cpr 3.4 doesnt mention it though), as I said earlier in my case, the respondent didnt file anything but handed me some scraps of paper(and his costs £444 !) on the day, they didnt provide any new evidence and the judge didnt allow them..and of course his costs wernt allowed either...he was truley incompetent !.. He mumbled about wanted a stay but judge said there was no defence so would decide there and then.

 

Couple of points I missed out on that you should do..in your statement of case you are supposeed to actually put...

 

(i) that claimant has no real prospect of succeeding on the claim or issue

 

and

 

(b) there is no other compelling reason why the case or issue should be disposed of at a trial.

 

and also a reminder of cpr 24.5 (I didnt, but wrote to other sides solicitor reminded him later...this looked good for me on court as I told judge I had specifically reminded him about it )

 

 

(1) If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must –

 

(a) file the written evidence; and

 

(b) serve copies on every other party to the application,

 

at least 7 days before the summary judgment hearing.

 

 

Andy

 

Andy

[LaughingGirl]

Nothing further to add to the excellent advise that you've already been given - just wanted to wish you the best of luck. I still can't quite believe he's trying it, but hey-ho.

[Gbarbm]

Hi oldmanmille,

Did you get to see the legal advisor at CAB and get your claim form in?

[oldmanmille]

Hi one and all....Its been quiet on the action front until today and I have received the attached.

 

Its says the matter is olisted for a case management conference on 9th August and I have to file at court and with the claimant any directions to seek no later than 7 days prior to court hearing.

 

A couiple of questions please:

 

1. Does the court conference mean this will been done in front of both claimant and defendants or is it without us being there?

2. For the files do i just simply write a defence again to the court and to the claimant?

3. If we are in person on 9th August can I change that date? Of course if it is done without us being at court then this is irrelevant!

 

Thanks.....John

[andydd]

The attachement is too small to read, youll need to scan it as a PDf and repost or use one of the picture sharing sites to link to.

 

Generally I would of thought you both need to attend the CM conference, you may find the Judge is a bit confused and may possibly hint that the case has no merit, thus giving the claimant a hint he should drop it.

 

Not sure what you mean by 'files' for directions, you should list things you believe that you and the claimant should do and documents that you and he should provide to the court.

 

(i.e Claimant to provide Contract of Employmenmt by xx 2012).

 

It is possible to say you are unavailable at certain dates, I think there is an option to put holidays dates on AQ is it ?

 

Whats happened to SJ, did you request this ?. I would of thought this should be heard before any CM conference (In my case, an allocation/directions hearing was set by the SJ was before this).

 

Andy

[oldmanmille]

Thanks Andy...I will re-scan as pdf and upload.

 

I put the SJ in but they returned it as I hadnt pauid 80.00 but I didnt see anything in costs so will need to do it again!

 

I did put dates down on original AQ but appears they have ignored that. i will contact the court to advise we are unavaliable...thanks again

[Gbarbm]

Hi John

I will flag this up for Andyorch as he is MUCH more knowledgable than me on legal matters!

 

Kind regards

Gbarbm

[andydd]

Nearly all applications to court will need a fee, in my case I put in my defence and mentioned the abuse of process hoping that the court would use SJ/Strike Out on their own initiative (would of been no fee !) but they didnt so I then had to put in actual SJ application (although it was very obvious of the abuse so I think the judge prob should of struck it out of own inititiave really !).

 

Andy

[andydd]

A succesful SJ will get it thrown out early and avoid all the shennigans of directions/case management/disclosures etc that happen in a fast track trial.

[AndyOrch]

Hi any chance you can post up a copy of your defence and your returned application?

 

Regards

 

Andy

[oldmanmille]

Hello one and all; an update for you and probably a little chuckle

 

My wife and I got our court date and it was 9th August but we are on holiday so I called the court and explained and they said write a letter explaining. So, I duly did and posted it off last week. I called them yesterday to ensure they got the request to which they replied yes.

 

The lady went on to tell me that the 9th August date had been vacated - great I said - however, not on the grounds of our holiday and request to change but because.....the claimant (my ex employer) paid by cheque and it bounced - lmao!

 

This is simply typical of my ex employer - it is not something new but to do it to a court when he is trying to recover 98k is beyond me! This does make me feel even more convinced that it has been scare tactics all alone. There is though a possibility that they will pay and I will end up face to face with them but in the meantime i am smiling and chuckling to myself lol...

 

The MD does have a lot on his plate though - tribunal in July from the ex finance director plus his own court appearance for fraud plus something else that he doesnt know will land on his desk soon - the latter will keep him more than busy that's for sure!

 

So for now that is my update and we shall see what comes up next....bye for now and thanks again....

[Gbarbm]

Well well well a leopard doesn't change it's spots eh!

[andydd]

Good news.

 

I too was in similar position, the claimant didnt pay fee and claim was struck out (this may well happen in your case), if so, he will have to apply for set aside, this is your chance to argue against the claim continuing..(in my case it wasnt allowed due to cpr 3.9 - lack of evidence).

 

He then ignored this and started the claim again about a year later and this is when I won using summary judgment/strike out (as Ive already mentioned earlier in he thread).

 

Perhaps your employeer is begining to see that there will be further and further costs as case progresses and he will be at risk of losing them all.

 

You should of course use this 'bouncing' as evidence if you are going down sj/strike out route as evidence that the claim is simply not serious.

 

Andy

[Mike_hawk]

Have you considered prompting a favourable order by filing w/s?

 

Part 3.7B, read in conjuction with PD 3B and 44.12 [deemed costs order], links are all below........ you wouldn't be applying directly for s/o, but you would be referring to the courts case management powers and requesting that 'should' the court strike out the case it should also consider your costs [to be assessed] on the standard basis within any order.

 

I would imagine the claimant has already been served notice to file the fee.

 

Phil

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03#IDAEYWKC

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part03b

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part44#IDABZ1HC

[sallypotter]

How can an employer justify asking for 3 years' salary back when you have a contract of employment saying you will be paid such and such for work undertaken?

 

If you hadn't done the work after 1 month, 2 months'.......3 years' why would he have paid you?

 

Absolute nonsense on the face of it.

 

I wouldn't be worried at all, he'll hopefully be locked up for his fraud case though doubtful unless Local Authority, DWP, serious fraud which perhaps this fraud case is.

 

He sounds like a right wide boy.

[lbruk]

The more I read of this the funnier it gets! Good luck!

 

I'm wondering if there is any way of counter claiming at some point, I'm not sure what for, but that would be just desserts for someone like this..

[LaughingGirl]

The more I read of this the funnier it gets! Good luck!

 

I'm wondering if there is any way of counter claiming at some point, I'm not sure what for, but that would be just desserts for someone like this..

 

I'm not sure that the OP's former boss has anything worth claiming for, by the sounds of it!