Advice on pursuing company through small claims court

[tickettyboo]

Hi, apologies in advance for a long post.

 

My partner is a butcher and owns his shop as a sole trader. Last August we were approached by a representative of a company called Approved Care Homes, who were supposed to be an umbrella organisation for care homes.They pitched us a very convincing hard sell to become an Approved Supplier of meat to local care homes allegedly part of their organisation.It seemed a really good deal and a payment was made at the end of August 2012 for £380 + VAT for a 12 month contract on the understanding that his business would become the Approved Supplier,i.e the one their homes were expected to use for meat, to five local care homes following publication of his details with some artwork in a brochure of local approved suppliers that would be received by him and also the care homes 8-10 weeks later.

 

Having heard nothing since the ad was approved, I contacted them on 20th November by telephone to be told that the brochure was still in production, but was assured that there would be no further delays and a list of the local care homes associated with the Company was sent by email pending the arrival of the brochure. In January, having heard nothing further from the company, I wrote to them requesting the return of the £456, as I was very concerned having made telephone calls to several of the care homes on the list that was emailed to me, and in each case the person I spoke to denied that their business is associated with the company.Future telephone calls to ACH were ignored.

 

I then contacted Trading Standards who advised me that ACH is in Breach of Contract, and to write again stating that which I did. The local Trading Standards office phoned me a week later and told me that apparently ACH's local Trading Standards are pursuing several complaints against this company.Two weeks later, again having no response from ACH, I submitted a claim online to begin the small claims procedure. ACH replied defending the claim and part admission, quoting production problems as the reason we had not received the brochure. They offered us £126 being "a 20% discount to upgrade to their premium service and have a presence on their web site" This was laughable-why would we want a premium service from a company that could not deliver what they promised within seven months, nor would a local butcher want a presence on a national company's website! Added to which they did not appear to have any relationship to the local care homes as claimed, so the brochure is pointless anyway. So we have returned the form to court, not accepting their part admission.

 

My concern about taking this further is where we stand legally. If my partner had supplied goods that he had not been paid for then the case would be clear cut, but what we have paid for is effectively an ad in a brochure that theoretically ACH could still produce. The fact that it would be useless and we were sold the idea under false pretenses could be disputed by them. Trading Standards have told us that they would rather we didn't mention we are aware of other complaints against ACH as part of our claim. I feel so angry that I didn't research this before we parted with the cheque but it seemed such a good business proposition, now I just feel we've been had.

Edited March 27, 2013 by tickettyboo
grammar & typos

[steampowered]

There is a simple solution to your concern about them suddenly producing the brochures. Send a letter to them formally terminating your contract. You are entitled to terminate contracts when important terms are breached - state that you accept their repudiatory breach of contract in failing to ensure you are appointed as the approved supplier and failing to provide the brochure. Once you have terminated the contract they do not have an option of producing the brochures. To be honest I think asking for a refund was probably enough to terminate the contract anyway.

 

To me this sounds like a fairly clear-cut case. I think your problem will be getting money out of them. Winning in court does not guarantee payment if the money has been removed from the company. If the company has simply been used as a front for fraudulent activity you could potentially sue the directors personally, but that would be a much less straightforward claim.

[tickettyboo]

Thanks for your reply. ACH seem to be a legit company; they advertise in glossy magazines and on local radio and several respectable companies have sponsored links on their website. I've done a bit of digging and the MD is the sole director.

 

I don't suppose you know whether when a small claim is reviewed by a judge does he/she only take into consideration information provided on the form, or is any background info gathered in any way e.g. research into the company (such as dealings with Trading Standards that might be relevant but we've been told not to use?)

[ploddertom]

I'll move this to the Legal Forum where others should also be able to help.

[tickettyboo]

Thanks, I wasn't sure of the best place to post this originally!

[assisted blonde]

As a matter of interest the company has 3 ccjs against them and they are not creditworthy, i would try and get your money back asap, Mr jackson is the sole director and he does have 4 other companies 2 of which are newly incorporated

[steampowered]

I don't suppose you know whether when a small claim is reviewed by a judge does he/she only take into consideration information provided on the form, or is any background info gathered in any way e.g. research into the company (such as dealings with Trading Standards that might be relevant but we've been told not to use?)

 

 

This might be an interesting link, it is a story I was told on a training day that has always stuck with me: http://etclaims.co.uk/2008/01/a-bit-of-a-git/

 

I guess you could include this information in a witness statement if you wanted to. But to be honest it is not that relevant. There is nothing unlawful about having a bad reputation, especially when we are talking about hearsay unproven allegations. You need to focus on proving your own claim against him not someone else's claim.

[tickettyboo]

 

I guess you could include this information in a witness statement if you wanted to. But to be honest it is not that relevant. There is nothing unlawful about having a bad reputation, especially when we are talking about hearsay unproven allegations. You need to focus on proving your own claim against him not someone else's claim.

 

I agree, but the local Trading Standards office had phoned me to ask permission to forward my details to Blackpool Trading Standards where ACH are based because apparently they have had numerous complaints against this Company. I wouldn't class that as hearsay,I would class it as relevant supporting evidence. The reason for my question was since Trading Standards would prefer I didn't mention their involvement, is this the type of information a judge would be aware of if some background research was done as part of assessing a case, or does his/her decision rest solely on the information given by both sides on the form? I was hoping somebody who knows the legal system might know what is standard procedure in these cases.

[steampowered]

It is very unlikely that the judge will do any background research. The general rule is that judges will only look at the evidence you put in front of them. Apart from the form there may also be witness statements (which should attach the documents they are relying on) and the judge will hear from both parties at trial. There is a helpful guide to small claims procedure here: http://www.crippslaw.com/guidance/guide-to-dealing-with-a-small-claim.pdf.

[Desperate Daniella]

This is a clear case of misrepresentation and in your claim you must specify which misrepresentation you are claiming, otherwise the other side will attempt immediately to have the case thrown out. That nearly happened to me and fortunately my very quick solicitor said that we had intentionally not specified because we were leaving it "for the judge to decide", but we were very lucky to get away with that.

 

The representative told you that you would become the approved butcher to the care homes. That is not true, and you were told that in order to get you to advertise in their brochure.

 

Misrepresentation can be innocent, negligent or fraudulent and fraudulent is very difficult to prove unless you have something in writing from them which clearly states that you will become the approved butcher. I would go for negligent.

 

Did Trading Standards put anything in writing about the other complaints? If not I would write to them in a way that they have to reply and basically confirm it.

 

Then I would write a letter before action (LBA) to ACH stating quite clearly that you agreed to advertise in the brochure solely because Fred Bloggs, their representative, assured you that you would be the approved butcher to the care homes, etc., and this was clearly misrepresentation on their part.

 

Also, the brochure was promised within 8-10 weeks and it is now over seven months since you made your payment.

 

Then, if you have the confirmation in writing from Trading Standards that there are other complaints I would mention this. (Personally I would mention it anyway, even if you don't get it in writing, but that is up to you.)

 

Say that as you were misled you expect the immediate repayment of the £456 and should you not receive their cheque in full settlement within 14 days you will issue a Claim against them and will also be adding the lost of interest on the £456 to your claim, as well as any court costs incurred.

 

DD

[Desperate Daniella]

And, just to confirm what steampowered has said above, the judges/courts do not do their own research in cases like these. You put the evidence in front of them, and that's why it would be good to have something in writing from Trading Standards.

[tickettyboo]

Thank you all for your very helpful replies. The link steampowered sent re the guide to small claims is really useful. I've posted the form back saying that we do not accept the part admission, the next step is presumably filling in the allocation questionnaire (unless by some miracle the money gets repaid in the meantime, which I very much doubt!)

[Desperate Daniella]

So sorry, I misread your post and didn't realize you had started proceedings. Do stick with it, and I would also write to them about the misrepresentation if you haven't already mentioned that exact word. Say that their representative is guilty of misrepresentation and you will be taking legal advice on whether this misrepresentation is innocent, negligent or fraudulent. If their rep is going round selling brochures on this basis it is definitely fraudulent and they may back off and settle rather than face up to that in court.

[tickettyboo]

We have now received the allocation questionnaire, and I have a couple of questions.

 

1. I understand that if it goes to a hearing, only my partner as the claimant and the defendant will be allowed to be present. However we both think that it would be better for me to be there-I am the person that has dealt with this from day 1; I have written the letters, filled in the forms and I was there when the salesman came to persuade him to sign up to the agreement. We both agree that I am the more articulate of us. Should I put myself down as a witness?

 

2. Location of hearing. is it a good enough reason that my partner as a sole trader would lose a day's takings if he had to close the shop to travel to the defendant's local court for a hearing to ask for it to be held at our local court?

 

3. Do I include copies of the letters that I have sent to the defendant by registered post prior to starting this claim (which I assume is meant by the pre action protocol) with the form at this point or will the judge request them at a later date?

[postggj]

Look up Mackenzie friend to your first question

 

http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0CGIQFjAB&url=http%3A%2F%2Fwww.courtsni.gov.uk%2Fen-gb%2Fjudicial%2520decisions%2Fpractice%2520directions%2Fdocuments%2Fpractice%2520note%252003-12%2Fpractice%2520note%252003-12.htm&ei=mqByUdv_Maey0QWT-YCYAw&usg=AFQjCNEAB0slYxuIGHSZli0PI87hAYGuzA&sig2=QQFMw-K68-kYG9Q9EjAnRg&bvm=bv.45512109,d.d2k&cad=rja

 

If you are the claimant, it will be transferred to the defendants local court

 

In question 3, that is covered by your court bundle, has witness statements been exchanged yet prior the the AQ

[tickettyboo]

Thanks squaddie. I've read the mackenzie friend link but still not sure whether to name myself as a witness on the form.

 

I was already aware that normally the case would be transferred to the defendant's local court. That was why I asked the question as to whether the reason I outlined would be sufficient reason to ask for it to be heard at our local court.

 

Nothing has been exchanged yet. We did not accept the defendant's part admission and received the AQ this week. I just don't know whether it's appropriate to include copies of letters I sent to the defendant as proof of trying to settle outside of court at this point (none of which were replied to), or am I supposed to wait until these documents are requested?

[steampowered]

1. Witnesses have a limited role. They are not supposed to represent either side of the dispute and are there to give truthful evidence about what happened. Witness evidence is only used to establish questions of fact, which means things that the witness personally saw or heard. No legal arguments and nothing which is just an opinion.

 

You say "they pitched us a very convincing hard sell". If you actually heard the hard-sell then you can put yourself as a witness to that fact, although your evidence probably will not add much to your partner's. Only put yourself down as a witness if you think it is worth filing your own separate witness statement about factual matters you personally observed. Remember that your partner should be named as a witness because he/she will be the main person giving evidence.

 

Putting yourself as a witness does not enable you to represent your partner. However, assuming this is small claims track, you will be able to present your Partner's case anyway so long as your Partner attends the hearing. This goes beyond what a MacKenzie friend can do (you would be a McK friend in fast track or multi track however in small claims track lay representatives can present a case - see paragraph 3.2 of the small claims practice direction). In any event your partner will still need to file his/her own witness statement about what happened and may be questioned on that statement.

 

 

2. The rule that proceedings are automatically transferred to the Defendant's local court only applies when you are suing an individual. I believe it does not apply if you are suing a company. I think the reasons you give are good; you should also add that the business conducted between the Claimant and Defendant took place near your local court.

 

 

3. No. This correspondence should be included in the bundle you bring to the hearing. No need to send it to court now, just return the AQ.

Edited April 20, 2013 by steampowered