wages over payment Claimform ***Resolved/Claim withdrawn***

[stephen7]

hi all,

some help and advice sought.

 

my daughter has today received a court summons issued by dtm legal in the northampton county court.

 

 

all the papers enclosed are photocopies, including the supposed summons, there is a ordinary blank envelope enclose with no return address. there is a claim number stuck onto a couple of the enclosed documents.

 

is this normal practice?

 

the claim is in relation to an overpayment of wages paid to her from a previous employer back in 2008/09. she admits that there was an overpayment but not to the amount they are demanding, they have also added interest from april 2010 till sep 2012 at 8% per annum and a daily rate of 26p from then on and contiuing till judgement day.

any thoughts/advice/ help as to where she stands and what to do from here would be greatly appreciated

[ims21]

Is the claim form Blue and does it have the court stamp on it?

 

Might be an idea to post them up with all personal information removed so we can have a look.

 

Use this method by dx100uk

 

scan the required letters/agreements/sheets - as a picture[jpg] file

don't forget you can use a mobile phone or a digital camera too!!

or

convert existing PC files to PDF [office has an installable print to PDF option]

.

'

BUT......

ENSURE: remove all pers info inc barcodes etc using paint program

but leave all figures and dates.

.

goto one of the many free online pdf converter websites

it would be better to upload a multipage pdf if

you have many images too rather than many single pdfs

.

or if you have PDF as an installed printer drive use that

or use word and save as pdf

.

open a new msg box here

hit go advanced below the msg box

hit manage attachments below that box

hit the add files button on the top right

hit select files, navigate to your file on your pc

hit upload files

[stephen7]

the claim form is not blue, it is a photocopy, but does have a court stamp on it, will try uploading a copy.

[dpick]

I think you need to ring the court and check if genuine claim.

 

dpick

[stephen7]

hopefully this has worked

[wonky100]

Hello Stephen7

 

I'm no expert but I thought that overpayment of wages had to be repaid. Whilst I accept that your daughter disputes the amount they are claiming has any correspondence been entered into about the overpayment prior to court papers having been issued.

 

When I received court papers, the documents were simply photocopies with a copy of the Court stamp.

 

Defo ring the Court as per dpick and see if they are aware.

 

Good luck.

[stephen7]

I think you need to ring the court and check if genuine claim.

 

dpick

thought of doing that, had a look through the court lists and northampton court has a couple of different telephone numbers depending on where it has been issued so not sure who to call

 

Hello Stephen7

 

I'm no expert but I thought that overpayment of wages had to be repaid. Whilst I accept that your daughter disputes the amount they are claiming has any correspondence been entered into about the overpayment prior to court papers having been issued.

 

When I received court papers, the documents were simply photocopies with a copy of the Court stamp.

 

Defo ring the Court as per dpick and see if they are aware.

 

Good luck.

although the claimant states that papers were sent, none were received and no correspondence over this issue has ever taken place

[wonky100]

Unfortunately it's not difficult to type up a letter after the event.

[robcag]

If you have photocopies of the actual court documents you should be able to login with the claim number and password (on the claim form) on the MCOL website. If you can do that I think it would be safe to say the claim is genuine.

 

Rob

[Ganymede]

Hi,

 

Yes they are genuine Court documents.

 

They are no longer blue in colour from the Northampton CCMCC issued through the Salford Business Centre.

 

The stickers with the Claim number on them are all standard practice and part of the bulk issuing scheme.

[stephen7]

have managed to upload the particulars of claim, these are typed on ordinary a4 paper and not on "official" court paper

[Ganymede]

PoC are drafted by the Claimant so would not be on "official Court paper".

[stephen7]

Hi,

 

Yes they are genuine Court documents.

 

They are no longer blue in colour from the Northampton CCMCC issued through the Salford Business Centre.

 

The stickers with the Claim number on them are all standard practice and part of the bulk issuing scheme.

thanks for clearing that side of things up. can anyone guide her as to the next stage, she obviously disputes the amount claimed, as they are asking for interest also, how is that worked out and are any replies sent directly to northampton?

[Ganymede]

How much of the overpayment does she dispute and why?

 

The Claimant would be entitled to the interest.

[wonky100]

Did your daughter move from where she was living when employed with these guys?

 

OK, so they sent an invoice in March 2010 but, whilst I appreciate that they don't have to do anything straight away, issuing a demand over 2 years later seems a bit odd. So a) they overpaid your daughter and b) it takes them an age to do anything about it. Seems like their admin is a bit useless. Did they give a deadline in their letter in July or did they tell your daughter that they were going to issue proceedings if she didn't pay?

 

I think I'm learning things from CAG!

[Mike_hawk]

Was the invoice received [or posted], it states issued........ why the change in terminology between points 4 and 5 of its particulars?

 

There is a change position defence but it relies on absolute good faith, if your daughter knew at the time that she was being unjustly enriched the court won't wear the argument.

 

It may be a case of negotiating on the service issue, reducing the overall exposure to interest and coming to an agreement to settle by Consent or Tomlin.... or a reduced single payment in full settlement with agreed withdrawal [if you have immediate access to funds]

[stephen7]

1. the invoice was never received. ( as a note, the employer was the NHS, and we all know how good their admin is)

2. the july letter was dated 31st, and gave her till 7 aug. to pay in full, or court action will ensue.

3. at the time when she finished with them, my daughter was suffering from a mental illness, ( the reason for finishing work)

4. there are 3 payslips copied ( dated nov, dec and jan ) and as she finished in nov, and was paid month in arrears, the nov and dec payments were her due salary, any overpayment would only be the jan payment.

not sure what you mean by a "change position defence" or " tomlin". could possibly get access to funds, but would need a couple of weeks, depending on amount.

[Mike_hawk]

1. the invoice was never received. ( as a note, the employer was the NHS, and we all know how good their admin is)

 

I thought that may be the case, hence the looser term 'issued' within its PoC

 

2. the july letter was dated 31st, and gave her till 7 aug. to pay in full, or court action will ensue.

 

Over 3 years to notify the initial overpayment, seems a little tardy!, They've issued now so the court would consider the case.

 

3. at the time when she finished with them, my daughter was suffering from a mental illness, ( the reason for finishing work)

 

Assuming she is OK to publish this in a defence it may assist.

 

4. there are 3 payslips copied ( dated nov, dec and jan ) and as she finished in nov, and was paid month in arrears, the nov and dec payments were her due salary, any overpayment would only be the jan payment.

 

You need copies of payslips for the relevant period, you could make an informal request if she still has contact details for her HR department. Failing that a part 31 request would help establish proof of the true values.

 

not sure what you mean by a "change position defence" or " tomlin". could possibly get access to funds, but would need a couple of weeks, depending on amount.

 

Change position defence, try Lipkin Gorman v Karpnale http://www.bailii.org/uk/cases/UKHL/1988/12.html, read Lord Templeman [first page] from the paragraph .......'The Club was enriched 'to the paragraph postulating the effect of the purchasing [conversion] with monies received in good faith. It's a better explanation than I could ever articulate on here.

 

Tomlin; a schedule of terms agreed and drafted by the parties in staying the case and eventually settling the claim [assuming the terms are adhered to]. Either party can approach the other and draft same if terms can be agreed. There is a £45.00 fee for filing the order for sealing. If you want to settle but don't have immediate funds you could agree terms over any given period acceptable to both parties.

 

 

You've got a while yet to consider what you want to do, deemed service 3.10.12 so your timeline would be file AoS by 17.10.12, file defence by 31.10.12

 

Try an informal approach first and ask them if they are prepared to discuss matters off the record, don't mention any possible defence [for obvious reasons].

Edited October 3, 2012 by Mike_hawk
Spelling, punctuation...... usual sausage fingers typing excuses :-)

[stephen7]

thanks mike,

had a look at the link you provided, but still unsure if this could apply to her, admitidly she was not " enriched" as it just went on day to day living.

could you elaborate on what a part 31 request is, and maybe offer some guidance as to the aos, not sure if she would be able to defend the whole debt, as above, or admit to owing the final month, or can she defend the whole claim and hopefully if things don't go right, admit owing part.

[Mike_hawk]

I think perhaps the mitigating factors that the court may consider would be; 1. Mental health, ergo whether she was aware of the overpayment or accepted the full value in good faith. 2. Whether by accepting in good faith she converted the money to goods/items of reducing value. 3. Delay from the other side in notifying her of the issue, hence a reduction in interest.

 

Part 31 explanation is here http://www.consumeractiongroup.co.uk/forum/showthread.php?159445-Getting-Them-To-Reveal-Their-Vitals.-Using-CPR-31.14-to-Your-Advantage

 

There's a template in the 1st post but please bear in mind it was drafted for cases involving disclosure for credit related cases. You'll need to strip out any reference to the CCA and request documents peculiar to your case.

 

AoS, just the acknowledgement of service.......... you have a couple of weeks to decide how you intend to plead, no rush. Might be an idea in the meantime to check you can register OK on MCOL rather than leave until the last minute.

[stephen7]

thanks again,

have decided to contest the whole claim, well, you never know. will check with mcol see if she can register with it, i assume the AOS still gets sent back to northampton bulk centre, is that right?

[Mike_hawk]

Hi s7

 

Yes, AoS can be completed on line. Print a receipt when completed.

 

Don't lose sight of the possibility of a compromise with the other side, and try to get some proof the the overpayment so you can establish very early on if the figures they state are accurate.

[stephen7]

tried calling them today, supposed to be phoning my daughter back tomorrow, see what comes of that first

[stephen7]

hi all,

an update,

tried calling them a couple of times but the " person" dealing with the case was unavailable.

have sent off the AOS and in the process of completeing the defence of the claim.

have sent off the part 31 but no response yet, and my daughter has requested medical proof of her illness at the time.

question: if the forms and medical docs are not here in time to be posted with the defence can i make refernece to them in the defence without providing copies and hope they are available when it goes to court?

can i represent her in court or does she have to " go it alone"?

thanks

[Mike_hawk]

Yes, you can make reference to anything relevant, no requirement to file docs with the defence. Disclosure and evidence of the docs would usually be ordered post allocation.

 

Not been able to find any reference to anyone using the change position defence on here so can't point you in the direction of anyone who may be able to assist. Post your defence on here when completed [best as an attachment rather than pasted directly into a post] and ask for some further input.

 

You should be able to act as a Mckenzie friend, check with her local court what their procedure is....... it'll be transferred to her nearest CC for trial.