Ccj claim form received

[miss_b]

Hi All

 

 

Long story short my previous employer claimed to have overpaid me by £600.

 

 

I have since paid £200, last payment October 2013. I wrote to them shortly after this requesting for my payments to be reduced as I became a full time student.

I never received a response and then forgot about the payments (MY FAULT).

 

 

They have sent a claim for to recover the amount, but I am happy to pay the £400, but not the interest court fees and solicitors cost they are claiming. I would like to pay 4x£100 starting from this month.

 

 

Are the courts likely to accept this and not give me a CCJ or does it need to be paid in full? I've never had one of these before so unsure of what to do, any advice would be greatly appreciated.

 

 

Thanks

[Sidewinder]

If the case goes to court then the interest and costs will be a formality - the judge would have to have a very good reason not to award them. Your only opportunity to avoid these would be to get the employer to agree to withdraw the claim - even then they will almost certainly want you to pay the court fee that they will have paid to apply for the claim.

 

If you have no defence to the claim itself, then you should write to the employer with a proposal that is sufficient to get them to drop the claim - they may not agree to do this unless the payment is made in full, although you could then argue to the court that they are being unreasonable in not accepting your proposal. That isn't to say that the claim would fail, merely that the judge may frown on the fact that they pursued action unreasonably - especially as they would be most unlikely to order payments which are higher than you are proposing anyway!

 

Just be aware that if the claim succeeds then a judgment will be registered against you - if not paid within 28 days then this will stay on your credit file for six years, making it difficult to obtain credit (and it may affect credit facilities that you already have). Paying £100 a month will not be enough to prevent that.

 

Can you actually afford £100 per month? If it does go to court then they can only order what you are genuinely able to afford. You might be able to use that fact to convince the employer that you might be able to get the money together more quickly if they drop the claim, otherwise they might have to wait for longer if the court decides that you can only afford a lesser monthly amount in view of your circumstances?

 

You definitely need to write to the employer with a proposal - but don't forget to acknowledge the claim and keep an eye on the deadlines involved otherwise the judgment will be obtained by default!

[miss_b]

Hi Sidewinder

 

 

Thank you for your reply. I am definitely going to contact them with a proposal- should I do this direct to the company or to the solicitors acting on their behalf?

 

 

I was going to propose to pay £400 and the £50 court cost for the claim. They are trying to claim for solicitor fees and interest on the amount which I do not want to pay, do I only have to pay this amount if the judgement is passed or do I have to defend these fees. Although I forgot about the debt they had means to contact me and did not.

 

 

If they refuse my offer and the Judgement is passed but I pay it within the 28 days, will it still show on my credit file?

[BankFodder]

If I were you I would start paying them the installments now - regardless of whether or not they agree.

It is always a good tactic where there is a dispute as to the amount of money owed - or as to the way it should be repaid, to start making the proposed payments immediately despite the lack of agreement.

The "creditor" is not entitled to prevent you from trying to reduce or to mitigate the alleged debt. By making installments, you reduce the debt - you reduce the size of the claim against you - to the point that the other side may decide that it is not worthwhile continuing - and also you show willing to the court and this may help reduce your exposure to interest and to any costs.

In the event that they do refuse payments, you should make this clear in your defence or explain it to the judge at trial.

 

You haven't really given enough detail to understand what has happened. Also you haven't told us about the efforts which have been made before the issue of the claim to get you to pay them.

 

I suggest that you pay them £100 now. Make sure that you point out to them that it is paid on account and not in full settlement - but that also it is paid without any admission of liability - otherwise they would be chary of accepting your money.

 

Acknowledge the claim with intention to defend. Send the second tranche of money just as you file your defence. When the claim is transferred to your home court, you will receive an allocation questionnaire. Indicate that you want the matter to go to mediation. You can complete that and at the same time send the third tranche of money - and follow up with the fourth as quickly as you can.

I can imagine that even before the mediation date is settled, you will have had time to pay the £400 and the claimant may be left in a position where they left holding on to a straw. You would be advised also to make them a payment of the claim fee - "as a gesture of goodwill".

Then it is up to the claimant whether or not they want to discontinue.

 

If you supply better details of your story , I might amend some of this advice.

[miss_b]

Thanks for your advice- apologies for not explaining this better.

 

 

So the amount is for over paid wages from a previous employer. They notified me last year but with held my request for payslip, p45 or explanation of how the overpayment was calculated. This went on for several months.

 

 

Their solicitors sent me a letter before claim in August, I responded with proof I had tried to contact them to resolve and they had apparently not received my last letter. So I agreed repayments with the company. 4 months into the payments my financial circumstances changed and I wrote in November requesting for the monthly payment to be reduced- never received a reply. I cancelled my standing order whilst awaiting a response and then admittedly forgot about the payments (my own fault).

 

 

Since then there has been no contact until this claim form arrived, I would have thought another letter before claim would need to be sent but I assume as I missed monthly payments they saw this as a breach.

 

 

I will definitely make a payment asap as you suggested, so in your opinion I should admit

the £400 plus £50 claim costs in goodwill?

 

 

My main concern is I would like to resolve this out of court and do not want a CCJ. If I make reasonable attempt to resolve and the court agrees do I still get a CCJ because a claim was made in the first place?

[SabreSheep]

What did your contract say re overpayments and what was company procedure?

[miss_b]

What did your contract say re overpayments and what was company procedure?

 

 

The company may deduct from your wages any sums due by you to it including, without limitation , any overpayments, loans or advances made to you by the company. You will receive prior written notice of the company's intention to make the deduction. You authorise such deductions upon signing this contract.

[SabreSheep]

Ok very familiar with that clause.

Now normally u can argue before court stage that overpayments made as a result of their mistake should be agreed as to be done in a manner that does not cause you financial hardship.

 

but this recovery is post employment and a plan was made you say and you missed payments. Humm. Ok no legs there that i can see.

 

mediation approach offered seems to be the best option offered so far

[SabreSheep]

Oh and if i am wrong do correct me. Ccj does not get applied if you pay within a set time of judgement

[miss_b]

Thanks Sabresheep, I know my options are limited due to missing payments.

 

 

If I had continued they would be due to finish next month. I may pay the full amount over the next week therefore the debts is settled earlier then agreed.

[BankFodder]

 

I will definitely make a payment asap as you suggested, so in your opinion I should admit

the £400 plus £50 claim costs in goodwill?

 

No - you admit nothing. If you admit, then judgment will be given against you including the costs and interest.

 

Having understood a little more about your story - although not all of it, I think that you should follow this link - estoppel - and consider whether your circumstances fit that doctrine or not.

 

If you received an overpayment which you accepted in good faith - with reason to believe that it was due to you - and if it would cause you difficulty to repay it, then you may well have a defence to the whole lot.

 

As I have said, send in an acknowledgment but hold fire on any repayments for the moment until we have the full story.

Are the facts broadly as I have outlined above?

 

I am struck also that it appears also that they withheld any explanation from you despite your requests. Do you have these request in some written form? This would go towards your good faith in the matter and would show that they had acted unfairly.

I'm not sure what the law is about withholding payslips or a P45. I can't imagine that it is lawful. Maybe one of our employment people might help on that.

 

Could you please lay out the sequence of events in bullet pointed chronology - including dates, who said what to who and how much.

[BankFodder]

There's your answer - although you need to find the legal authority for this.

 

Where an employee has accidentally been overpaid, can the employer withhold the employee's P45 until he or she repays the amount in question?

 

An employer must normally issue the relevant parts of a form P45 to HM Revenue and Customs and the leaving employee when his or her employment ends. Where possible, form P45 should be handed or posted to the employee on the last day of employment. However, this can present practical difficulties within the employer's payroll office, for example where employees are paid on their normal pay date, irrespective of their date of leaving.

Employers are permitted to issue form P45 after the last day of employment, if it is not practicable to issue it on the final day. However, form P45 must not be withheld by an employer and used as a 'bargaining tool' in any outstanding dispute with the employee in respect of other employment aspects, such as return of company property or recovery of an overpayment of wages.

The employer should deal with any recovery of overpaid wages as a separate entity and not withhold form P45. They should issue the form to the employee as soon as it is reasonably practicable to do so.

http://www.griffinshr.co.uk/index.html?pgid=508

 

Also, it seems pretty clear that it is unlawful to withhold a payslip

https://www.gov.uk/payslips

 

All employees are entitled to an individual written pay statement on or before the time they are paid. The statement must show gross pay and take-home pay, with amounts and reasons for all variable deductions.

http://www.acas.org.uk/index.aspx/index.aspx?articleid=1366

 

I think that this gives you a great deal of leverage against them as they have acted unlawfully

[miss_b]

Hi BankFodder- I'm afraid I have just paid an instalment today so that must mean I have lost any possibility to defend.

 

 

I did get advice on estoppel and also that there was a change of position as I was unemployed and the funds had been spent, however I received the money in good faith.

 

 

*Left employment Feb 13

*Previous employer wrote to me March 13 advising overpayment of £600 and to repay within 7 days.

* I responded late March requesting wage slip and P45.

*Employer supplied incorrect wage slip with no letter to explain.

* I again wrote to them in April requesting a breakdown of why I was overpaid, had still not received P45 and hmrc had no record of anything being filed.

*HMRC confirmed P45 had been filed by previous employer - still no reply from employer from last letter in April.

*August received a letter before claim from previous employers solicitors, I sent a letter including all me previous correspondence and proof of postage to show they had ignored me.

*Employer replied a week later apologising that they never received letter although it had been signed for, they provided the breakdown and I agreed to repay the amount of £600.

*Paid £100 in August, then agreed to 10 monthly instalments of £50.

*I paid instalments in September and October, in November I wrote to previous employer requesting payments be reduced as financial circumstances had changed.

* Never received a response and I unfortunately forgot about the payments after Christmas and moving home etc.

*Then received Claim form from previous employers solicitor yesterday.

 

 

All my correspondence to them has been recorded except for my last letter requesting for my payments to be reduced. I want to pay the amount so I can close it off as I've had enough of dealing with these people. I just want to make sure it is done without me incurring a CCJ on my credit file. So from what I gather from your last post, the fact I have made a payment means they will make a judgement regardless even if I pay within the next 2 weeks?

 

 

Sorry for being long winded I am getting a bit confused with all of this

[BankFodder]

No - not at all.

 

Firstly, if there is a CCJ against you, you have 28 days to pay before it is recorded on to your credit file. So you have a lot of flexibility.

 

You can go ahead and pay them the money - but it will have to be the amount of the entire claim - including interest and fees - and then the matter is closed other than a couple of formalities

 

Or else you can try to avoid paying the interested and fees - but if they win on those points, then you can still satisfy that judgment within the 28 days and still have no CCJ on your file.

It's up to you.

 

You could try and defend on the basis of an estoppel in respect of the entire remaining debt - or you could file an estoppel defence and then pay "without admission of liability" installments of the principal amount and then leave them to decide whether they are going to proceed merely on the basis of the interest and the court fee - with a risk to them of losing.

 

It is up to you how you want to play it. If it was up to me, I would play it along - especially in view of their lack of help in explaining the debt. I would refer to this in the defence.

However, you did say that the documents had been withheld. You seem to have modified your view on this.

Also they have not complied strictly with the pre-action protocol and I would refer to that as well.

[miss_b]

No - not at all.

 

Firstly, if there is a CCJ against you, you have 28 days to pay before it is recorded on to your credit file. So you have a lot of flexibility.

 

You can go ahead and pay them the money - but it will have to be the amount of the entire claim - including interest and fees - and then the matter is closed other than a couple of formalities

 

Or else you can try to avoid paying the interested and fees - but if they win on those points, then you can still satisfy that judgment within the 28 days and still have no CCJ on your file.

It's up to you.

 

 

You could try and defend on the basis of an estoppel in respect of the entire remaining debt - or you could file an estoppel defence and then pay "without admission of liability" installments of the principal amount and then leave them to decide whether they are going to proceed merely on the basis of the interest and the court fee - with a risk to them of losing.

 

It is up to you how you want to play it. If it was up to me, I would play it along - especially in view of their lack of help in explaining the debt. I would refer to this in the defence.

However, you did say that the documents had been withheld. You seem to have modified your view on this.

Also they have not complied strictly with the pre-action protocol and I would refer to that as well.

 

 

Your advice is extremely helpful BankFodder.

I am going to fill in the admission form and defence form with the amount I admit to pay.

I will pay what I owe plus the court fee, but feel it necessary to fight the solicitor and interest fee.

 

 

I will certainly be taking your advice re defence of estoppel, as I do not accept liability and the change of position defence should not leave me in financial hardship. As you suggested I will include all correspondence as evidence to support my co-operation and their lack of. Detailing their numerous breaches of Employment Laws.

 

 

Although I am at fault for missing payments if I defected on the arrangement a further letter before claim should have been sent before the actual claim. I will fill in this form and send it off and let you know the outcome.

 

 

If I am sending the admission and defence, do both go back to the court and then they liase with the claimant?

[BankFodder]

Your advice is extremely helpful BankFodder.

I am going to fill in the admission form and defence form with the amount I admit to pay.

 

No - you misunderstand. If you admit the substance of the debt - then you will get a judgment at least for that, the interest and the court fee.

 

You have to defend it all.

I have to go out but I'll give more detail later or tomorrow

[Sidewinder]

I agree with BF - you need to acknowledge the claim and signal your intention to defend the whole claim - you do not at this stage have to detail what your defence might be. This will buy additional time in which to investigate other options or to negotiate your position.

 

You could try for a defence of estoppel on grounds of a change of position, but I think that may be a bit ambitious - to have any mileage you would need to show that you believed there was entitlement to the money - and preferably that you were led to believe that it was yours, although the length of time that elapsed between you receiving the money and the employer notifying you that you had been paid could also provide mitigation. The fact that you originally agreed to repay the money would not help your case, but need not be altogether fatal to it.

 

Regarding payslips, the Employment Rights Act does require an employer to provide an itemised statement of pay and deductions prior to or at the time of payment, and you could have taken action at an Employment Tribunal had they not provided this - it is unclear whether you never received the payslips or whether you didn't receive copies requested in order to investigate the overpayment. The matter is largely irrelevant now as action would need to have been brought within three months of the failure to provide. The lack of a P45 is a matter for HMRC.

I would still use the time allowed by the court process to negotiate a settlement before it proceeds to a trial.

[BankFodder]

I suggest the following defence which you should send back to the court - but after you have acknowledged.

 

1. The defendants claim is denied
   
2. The defendants are estopped from asserting their claim
   
3. The claimant was an employee of the defendant and received an overpayment from them after the termination of her employment in Feb 2013
   
4. The overpayment was received in good faith and I assumed that the payment was correct - as did my employer when they made the payment
   
5. The claimant subsequently told me in March 2013 that they had overpaid me and demanded the money back
   
6. I asked the claimant for an explanation or clarification of the figure which they had arrived at but the claimant refused to provide one
   
7. The claimant at first unlawfully failed to provide an accurate payslip or a P45 while insisting on repayment of an unexplained sum.
   
8. In August 2013 the claimants threatened me with legal action and but at my insistence also supplied me with the breakdown I had been requesting
   
9. When the claimant eventually provided me with a breakdown of the figures, I agreed to pay the sum in installments
   
10. The payment of the installments left me in great hardship and at one point I was unable to continue them.
    
11. I attempted to renegotiate with the claimant but they never responded to me.
    
12. The claimant has commenced this legal action without notice to me and therefore they have breached the pre-action protocol
    
13. At all times the defendant has acted in utmost good faith.
    

You need to check all of this and correct any parts which you are not prepared to stand by.

 

 

Send a letter to the claimants' solicitors enclosing a copy of the points I have outlined above.

 

Tell them that you are defending the action and that you will be filing a defence. Tell them that you have enclosed a general copy of your defence, for their information.

tell them that despite the fact that you believe that the court will uphold your estoppel plea, you are still intending to repay their alleged debt as a matter of good faith and as a gesture of good will. Tell them that the first payment of £100 is enclosed and that three more payments will be made monthly.

Tell them that you have no intention of making any further payment of their interest, claim fee or any other costs and that they will have to proceed to trial is they want those.

Remind them of their duty to mitigate their losses and if they refuse any payments, you will inform the court and ask the judge to accept that it is just further evidence of the bad faith of their client.

Tell them that if they wish to respond, they should be aware that none of their correspondence will be received on terms of confidence or without prejudice and that for your protection you will be bringing everything to the attention of the court if they decide to force the matter to trial.

 

 

If you they do try to continue the case for the interest etc and they win, then there is a chance that you may be ordered to pay their reasonable costs of travel - but probably nothing else.

 

Frankly, they would be well advised to give it up - as long as you make the installments. Don't make any further mistakes about this.