Small claims court

[Credit hire hater]

I want to take a big company to the smells claims court to sue them for money I ended up paying under duress. To cut a long story short, I got a bill for over £15000 and threatened with court if I didn't pay it. I got this down to just over £4000 which they said they would accept in full and final settlement. Not being in possession of the evidence I needed I decided the only course of action was to pay,under duress which I notified them of, and then to get the evidence I needed from them, recorded phone conversations, and sue them for the money back.

 

 

My question is whether they can put in a counter claim against me for the other £11000 or so they originally tried to get off me, or can they not do that since they accepted the £4250 in full and final? I cannot pay that amount, hence why I couldn't risk fighting them in court originally, £15000 would have put it in fast track where if I'd lost I would also have to pay costs, and they said they'd charge interest so I would have been looking at way over £20000. I feel robbed but I can't fight back if that £11000 could be claimed by them again. Any advice would be welcomed.

Thanks

Edited January 24, 2014 by citizenB

[Ganymede]

Hi,

 

Does this relate to another thread somewhere with a background to the debt? If not can you give us some more information please.

[steampowered]

I will wait to hear more information, but my initial reaction is not good.

 

If you pay money and it is agreed that will be in full and final settlement that is a contract. Contracts which are entered into freely and voluntarily are legally binding. Duress has a specific legal meaning. In order to show that the contract is void, you would need to show that the other side made an illegitimate threat which was so serious that you did not really consent to the contract. This is an extremely strict test.

 

Threatening to do something which is lawful can almost never be duress. It was entirely lawful for them to threaten you with court proceedings if they thought they had a possible legal claim. If you disagreed with the claim then you should have let it go to court and let the court decide. Unless their conduct was actually illegal or the threatened claim was fraudulent I don't think you have any realistic hope of claiming duress.

[Credit hire hater]

Thanks for the replies. Essentially it stems from a car credit hire following an accident where liability was disputed but it ended up being my fault. I really didn't know it was my fault, and I told them I wasn't sure what had happened. Anyway, initially I was told I had a protection policy which meant at no time throughout the process would I be personally liable for hire charges. I signed paper work.

 

I had to sign more documents again about 2 months later, I rang them up, and was told (on a recorded conversation which I now have) that they were taking me on at their own risk and they wouldn't be coming to me for any money. I have a further 2 recorded conversations where they tell me the same thing. At the time of the bill, they told me it didn't matter what they had said, since it was my fault they had to present me with the bill. This is despite being told that even if it turned out to be 100% my fault, they knew the risk they were taking and they wouldn't come to me for money, they would just take the hire car off me once it was established it was my fault.

 

 

As I said I managed to get them down from over £15000 but once they set a deadline to pay the reduced amount I couldn't get any evidence from them. I spoke to a barrister at the time, with the very limited info I had,please bare in mind I had loads of calls with this company and couldn't remember everything that was said, he said I had a good claim to defend it.

 

He also said that if I paid them, stating I did not believe I owed the money and was only doing so out of duress, I could then seek to claim the money back in court. I was slightly wrong in my first post, I didn't in fact pay it in full and final, but they did dispense all liabilities of the debt from me.

Thanks

Edited January 24, 2014 by citizenB

[Credit hire hater]

I should say it is my intention to sue for misrepresentation, the duress was only on the payment I made and so I don't believe I affirmed the contract as I said I didn't believe I owed the money

[steampowered]

Misrepresentation for what? How you were sold the protection policy?

 

 

The difficulty is that you accepted their offer to settle the litigation for £4,000. It is going to be extremely difficult if not impossible to reopen the dispute at this stage. I don't really understand what is different now that you didn't know at the time.

[Rex Shepherd 7]

The court is unlikely to allow you your desired second bite of the cherry in the cirumstances and suspect that if you sue for the return of that payment then a counterclaim for the 11k is almost certain to follow and is likely to put your integrity in doubt when making your case. In any event, if they did counterclaim for 11k, the value of the dispute would still be on fast track and render you liable for significant costs so really you are back to square one in that regard. And of course, your reneging on your full and final settlement agreement won't exactly look good.....

[Credit hire hater]

Thanks again for the replies. Yes misrepresentation of the policy, if you read it it is in fact barely worth the paper it's written on and most certainly does not mean "under no circumstance will you be personally liable for any of the hire costs" it's a complete lie. As was being told that I need not worry, sign the second lot of paperwork, we won't come to you with a bill as we've taken you on at our own risk. I guess all that has changed is before hand whilst I was sure what I was told, I now know I can prove it (the recorded calls) and I also know that they never said anything different, or threw in any caveats. I couldn't take what would effectively have been a £15000 gamble before hand. I did rectify my first post to say that I didn't pay in full and final,I just asked for confirmation they wouldn't come to me for any more money.

I don't want this to come out the wrong way, but you do both seem to know your stuff, are you legally trained? I only ask because both a barrister and solicitor told me that by paying under duress (and financial duress does exist, £20000+ would bankrupt me) then I could sue this company for the money back. I know the law and what seems fair to the common man aren't always the same thing, but to be backed into a corner by a multi million pound company who can afford to take chances in court doesn't really seem fair.

Thanks again

[Rex Shepherd 7]

Economic duress exists in law but in circumstances where a person who is owed say £15000 under a contract is told by the other party to accept either a much lesser amount or get nothing at all. It is the fear of getting nothing that forces, unlawfully, the other to take a lesser sum than he is entitled to. But the reverse applies in your case in that arguably this company agreed to accept 4.2k for fear of you not being able to afford to pay anything near the amount they believe they are entitled to,, especially if their legal costs were to be added in a successful fast track action.

 

As regards alleged misrepresentation, any wording on the document signed that contradicts it is likely to prevail.

 

I have stated my profession in my user details but all comments given are based on extremely narrow and one sided information supplied by you.

Edited January 22, 2014 by Rex Shepherd 7
minor ambiguity corrected

[steampowered]

Firstly I just want to add my sympathy for what must be a very difficult situation for you. On the legal aspects, yes economic duress exists. But it is a narrow concept. In order to prove economic duress you must show (1) that the economic pressure applied was illegitimate and (2) that it caused you to enter into the contract.

 

You may refer to the short judgment at http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/1993/19.html which is the leading authority on the specific issue of whether threatening someone with a lawful act, like bringing a court claim, can be economic duress.

 

The problem you have is proving that the threat to bring the claim against you was 'illegitimate' in the legal sense of the word. This is difficult. Unless you can prove that the threat to bring a claim was completely unwarranted or fraudulent because the other side did not believe that they had a valid claim to put before the courts, its very difficult to show that the threat was 'illegitimate'. I don't know enough about your case to say definitively whether it is possible or impossible.

 

Obviously if you have a solicitor and barrister on board listen them. But do make sure you give them the full details. Acknowledging that economic duress exists is not the same thing as saying whether or not it would apply to your case.

[Credit hire hater]

Thanks again for the replies. That judgement was fascinating reading, in essence the court ruled they weren't entitled to the money in the first place, but once paid, it couldn't be claimed back under duress.

It seems as though I would need to show that the company had no grounds to believe they were due the money from me. They did tell me that I wouldn't be given a bill, even if 100% liable, so why did they then believe it was owed to them from me?

I must say this seems extremely complex, could a lay person get anywhere near arguing this, and is it so complicated that it might not even be assigned to the small claims. I appreciate your understanding of the situation I found my self in.

[steampowered]

No worries. I think it is very difficult for lawyers as well as LiP. The courts are reluctant to strike down voluntary agreed contracts and settlements and will only do so in very exceptional circumstances. You'd need an incredibly good reason.

 

It could be done by a LiP in very extreme examples, such as an obviously fraudulent case, but for the most part I wouldn't recommend it.

[Credit hire hater]

Thanks again for the replies. That judgement was fascinating reading, in essence the court ruled they weren't entitled to the money in the first place, but once paid, it couldn't be claimed back under duress.

It seems as though I would need to show that the company had no grounds to believe they were due the money from me. They did tell me that I wouldn't be given a bill, even if 100% liable, so why did they then believe it was owed to them from me?

I must say this seems extremely complex, could a lay person get anywhere near arguing this, and is it so complicated that it might not even be assigned to the small claims. I appreciate your understanding of the situation I found my self in.

[hman]

Excellent example/Judgement Steampowered.

May try that in my own case - monies paid by us, denied, 'full' amount + interest Claimed (still sought, incl full interest, after proof provided/acknowledged). 'Duress' ? Every letter demands FULL total/interest and 'warns' of Dangers/costs of going to trial - have ignored!

 

In matter of £15,000 and Small Claims; sum claimed with us is similar - at Allocation the Plaintiff asked D/J if this could go to Small Claims.

This was granted - it CAN happen.

 

Very best of luck Cr Card Hater!

[Credit hire hater]

Thanks hman, so are you in a similar situation to me?