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gh2008

Friend needs help MCOL claim received***Claim Dismissed***

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Long time since I have been on here - hope you can help a friend of mine in need, I have never come across anything like this so am out of my depth :(

 

MIf0LGg.jpg

 

This MCOL POC has been received by a friend. As with all of these types of disputes it is rather sad & very, very messy.

 

In a nutshell (I hope)

 

The claimant's family owned a pub, the defendant lived there with the claimant's sister.

In 2008, The claimant's family bought a 12mx6m 'marquee'/party tent for the pub. This was used for various beer festival summer party events and those type of things.

 

In 2009 the pub went bust, the marquee was removed and stored at claimant's premises prior to the receivers attending.

Summer 2010 Claimant's sister declares bankruptcy

 

Summer 2010 marquee used at a football tournament by claimant

Autumn 2010 sister & defendant became civil partners and marquee was used together with a new identical one (owned by someone else) for the reception at the stables where claimant's sister worked.

Pictures from the reception show many missing parts to pub's marquee & held together with ratchet straps & cable ties.

 

Both marquees then left at stables in an open sided barn.

 

Summer 2011 the new marquee was taken from stables by claimant's sister, used by claimant and then removed to defendant's garage by sister (at this point defendant & sister were not at a good stage in their relationship & Police were involved).

 

Claimant's sister sacked for gross misconduct (violence towards staff & customers) at stables

Xmas 2011 claimant's sister imprisoned (on remand, refused bail) for criminal offences against defendant

Claimant (& other family members) warned by Police re harassment of defendant.

New marquee i.e. not the ex-pub's one removed from garage returned to stables by owner to make space for the sister's belongings to be removed from house ready for collection by third party.

 

Spring 2012 claimant's sister imprisoned again for repeatedly breaching injunctions against defendant

 

Claimant collects (his) marquee from stables

Writes to defendant, saying badly stored, damaged & incomplete then issues an invoice to defendant for double the price of a new replacement. (Claim is for £900+ new they are £450)

 

During the letter ping-pong, the Defendant questioned ownership, denies any liability for safekeeping/storage (down to sister/claimant), disputes invoice, urges claimant to seek proper legal advice.

 

Claimant confirms ownership as being bought personally by sister (never owned by pub??), then transferred to claimant as part payment of a debt owed to him

 

Claimant also claims lost income as well (subsequently dropped in claim)

 

Defendant requested details of original purchase, date of transfer (as sister went bankrupt on or around the same time so either property not declared or debt not declared at time of bankruptcy). Copies of his accounting records showing the value of the marquee when brought into his business, depreciation etc etc & recording showing historic income generated by the marquee

 

Defendant retracts loss of income & now denies running any business, but stands by issuing the invoice and demands payment

 

LBA received but no copies of documents. Mediation offered at cost to defendant

Reply to LBA again requesting documents and adding that photographs of the marquee in 2010 may be used in any defense. Paying for mediation refused but will accept court appointed mediation.

 

 

So, as I said one real mess. The problems I see in writing a defence are

1. He should be claiming damages not an unpaid invoice then could defend on denying liability etc

2. An incomplete (in 2010 before any involvement of the defendant), commercially used, 7yr old party tent is not worth anything anyway! He is claiming double the price of a new one! Attempted unjust enrichment or what!

3. the POC is err, not sure how to describe it

 

Unfortunately 'the family' want to have a go at the defendant because the sister got booted out of the marital home with nothing except the clothes on her back and several injunctions & restraining orders together with an order to pay the defendant's legal costs of >£24,000 (which obviously she will never get back)

 

So, what is my friend's best course of action.

  • Simple denial defence and let it go to court (if it is not struck out at the court's own will)
  • Full detailed defence to all possibilities
  • Apply for a proper POC
  • Apply for a Summary Judgement / strike out
  • Something else?

 

Hope you can help


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Those are terrible POC's. Even worse than most DCA's. It's more like a story than a legal claim POC.


Any advice i give is my own and is based solely on personal experience. If in any doubt about a situation , please contact a certified legal representative or debt counsellor..

 

 

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Yes, throughout the whole sorry mess we have urged him to seek proper legal advice (I think his 'strings' are being pulled by others. But, him & his family know best!!

 

Problem is as they are not really a POC at all it makes it difficult to know what is best action to take, there is nothing to really to get started with.

The defendant doesn't have money to go to a solicitor (her parents raised the previous £24k :( )


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Well, unless he submits additional information, then you could put forward a defence saying you have no idea of the claim as the POC's are minimal at best.

 

Im not the best to ask about court claims, but i think im right when i say that so far, you have nothing to defend without further info.


Any advice i give is my own and is based solely on personal experience. If in any doubt about a situation , please contact a certified legal representative or debt counsellor..

 

 

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Playing 'Devil's Advocate', the problem I see with that is because of the letter ping-pong, it is clear the defendant knows exactly what the claim is about.

In one letter the claimant was told he should not be issuing an invoice and suing for non-payment but suing for damages and that he needs to work out the damages & show the defendant's liability, having first proved it was even his. (At this point we realised that he was not going to stop so were hoping for a proper POC)

 

My experience of small claims is that almost anything goes on the day if it gets to court, especially when it is between 2 LiPs


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Im not saying he doesnt know about the claim, im saying that the POC's are insufficent unless he adds further points. There is no mention of money etc, or anything really. It's pretty much a rambling story and not a descriptive or short POC.


Any advice i give is my own and is based solely on personal experience. If in any doubt about a situation , please contact a certified legal representative or debt counsellor..

 

 

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Sorry, misunderstood your post :oops:

 

back to this then

 

 

So, what is my friend's best course of action.

  • Simple denial defence and let it go to court (if it is not struck out at the court's own will)
  • Full detailed defence to all possibilities
  • Apply for a proper POC
  • Apply for a Summary Judgement / strike out
  • Something else?

 

I am not sure of the best course of action especially as it is between 2 LiPs


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Any chance you could scan the full page N1 gh and the right way up...Im getting a crick in my neck and cant really make it out.Is it a money claim or a PT8 claim?

 

Regards

 

Andy


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Thanks for looking in Andy

I will get it scanned in properly and emailed to me tonight and I will post it up.


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jGRVUH2.jpg Edited by gh2008
removed password & barcode

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You could use CPR part 18 to ask what parts are supposed to be missing.

 

Or simply ask for proper PoC ?


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Personally I would be inclinded to file a defence clearly setting out the reasons why the claim is disputed and let the claim proceed through the court system.

 

The POC is not well written but I think the nature of the claim is clear. The Claimant is claiming that the Defendant is refusing to return the missing parts for a marquee. For this reason I don't think you would get an order that the POC should be rewritten and I'm not sure what this would achieve. The POC has no suggestion of a claim for bad storage and the Defence should not pre-empt this: just focus on the simple allegation in the POC.

 

I don't think you could get a strike-out or summary judgment. For these the claim generally needs to be hopeless based only on the documents ... while your description makes the claim sound hopeless these are evidential issues which the court could only decide at a hearing. You would also have to come up with the court fee.


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Personally I would be inclinded to file a defence clearly setting out the reasons why the claim is disputed and let the claim proceed through the court system.

 

Thank you for your advice. AFAIK, the missing parts have been missing since it was used in 2010. It is only now, in the POC that he is saying the parts exist and that the defendant is not returning them (which is untrue). Until now (and in the LBA) he was saying that the defendant had not stored it properly and that it had been damaged.

 

In the defence, should it be a short and concise? One just denying the allegations in the PoC? i.e. ownership, that it was ever stored with the defendant's agreement, that it was moved etc

should it also cover the fact that the claim is for an unpaid invoice (rather than what it should be)?

should it cover the fact that a new replacement is £450? or not go there and confuse things

 

Thanks again for everyone's help - way forward is getting clearer now


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The Defence does not need to be very detailed, but it should raise any points which you might wish to raise in court. I would certainly cover all the main points you mention - ownership of the marquee, denial of being responsible for the missing parts, denial of possessing the missing parts, cost of the replacement being around 450 (and putting Claimant to proof as to the cost of a replacement). It is best to put each point in its own short, numbered sentence or paragraph.

 

The point about the invoice can be mentioned, but legally I don't think it matters a great deal whether this is treated as a claim for an invoice or a claim for damages.

 

Happy to look at a draft Defence if it would make you feel more comfortable.


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Just to update the thread with the outcome - my friend won (easily)

 

It did actually go all the way to trial !!

 

I assisted my friend as a McKenzie (sp?) friend. The Judge was very good. Explained the Law carefully re bailment

 

Basically and ignoring any of the disputed facts over ownership, whether it was ever in my friend's care or even its value, as the alleged bailment was for the sole benefit of the bailor (the Claimant), then the Claimant had to prove 'gross negligence' in the care of the property in order to be able to make any claim.

 

The Judge carefully explained this at the beginning of the trial. I made a big thumbs up to my friend under the desk :-D

 

BTW the Claimant had COMPLETELY changed the 'story' between the LBA and the WS presented to Court!!

The carefully drawn up list of questions to ask the Claimant on the day where he had contradicted himself was swiftly reduced to a single question which just highlighted his complete lack of any proof of anything.

My friend did not need to add anything on the day to her defence/ws and the Claimant didn't know how to react to that and didn't ask any questions either

 

So, case dismissed & some more Law learnt :whoo:

 

Thank you to those who assisted on here.


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Congrats.

 

I hope you asked for some costs, you should of prepared a Summary Assesment of Costs before hand and sent them to court and other side using the £18ph LiP rate and the tried to argue that the Judge award costs as the claim was vexatious and had no prospect of success and he didnt comply with the Pre-Action CPR, etc.. no doubt the Judge would of stuck to the small track rules and awarded no costs except for court fees and money for time off work, did you/your friend ask for/get these ?

 

Its worth mentioning the Summary Judgement/Strike Out process, this can be used to dismiss meritless/useless cases and as its pre-allocation you can claim costs, but there is a costs risks should the other side 'win' or pursuede a Judge that it should go to trial.

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We had spoken about costs and the Judge did prompt my friend BUT my friend cannot put a price on having nothing ever to do with this family again. and for the sake of £80 or so ...

 

So best just left ...

 

 

just fo rinfo - the costs aspect was included in the WS and the Judge dealt with it with the Law in his opening address saying as it was 2 LiPs then the only costs he would allow would be the 'normal' SCT ones


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Fair enough..its always worth asking for costs you are entitled to..Court Fees (which as defendant you prob didnt have) and time off work (upto £90) :)

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Nice one gh...thread title amended to reflect the result.

 

Regards

 

Andy


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Excellent news :)


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Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

 

PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE:D

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