Potential Beach Of Contract and my Subject Access Request Response

[Spurs4ever]

To cut a long story short....

 

I worked as a freelance contractor for a firm for 6 months in 2015. The long term contract was eventually cancelled by mutual consent and in October. In December I was sent a letter from my client stating that they strongly believed that I had not fulfilled any of my duties under the contract and wanted £4,000 withn 30 days or were threatening to take me to court for £12,000 +

 

I spoke to a solicitor who advised me that unless it was a letter from a solicitors on the clients behalf, then I should not respond as the client was probably "fishing" to see if I would pay up.

 

I received another letter in March, stating the same thing, at which point I requested a Subject Access Request (I did this as everything I did was controlled by work email I had no access to, including my contract and other personal documents)

 

I received the SAR response as a set of transcripts of emails and other documentation (which according to the SAR code of practice is totally acceptable), HOWEVER also included was personal notes inbetween the emails, one of which states that due to a situation that occured the client thought I was going to use certain information to blackmail them.

 

Yes they actually wrote that on the SAR response paperwork, twice, in two different places among the 36 pages of response I received.

 

Now, my question is, are they allowed to comment with personal opinion and notation on an SAR response or should it be just the facts taken from documentation?

 

I cannot find anything in my searches and thought one of you fine people on here would know.

 

If not, what would be my next step in responding to it other than to ask for the information without the notation?

 

Thanks in advance

[unclebulgaria67]

Yes they can include comments they have made in sn SAR response, but the question is why ? Were these comments added by those completing the SAR or before the request was made.

 

If their last letter was in March, it does not seem like they are wanting to continue legally ?

 

I think i would not reply or look to pursue this in any way. But i would look through all of the SAR papers and put together a summary of a defence, just in case they ever bothered to continue.

 

The only similar situation i have been involved with, is an Insurance claim which we thought was not legitimate and a colleague had added comments on our system. The policyholder submitted an SAR and we had to send the SAR to them including comments which were allleging that we thought the claim was fraudulent. Of course this led to a complaint and from what i remember we paid the claim in full pretty quickly without looking into it. The lesson was that you never add any comments on computer or on a paper file that you could not justify later, as a customer just might see the comments following an SAR request. Most companies will send everything on file for an SAR request, as if it ever goes to an ombudsman or ends up in court, it would harm any case, if it looked like information had been witheld.

[Spurs4ever]

Thanks for the quick reply.

 

The comments would have been added as the SAR was compiled, 100%.

 

For the record I do not think that they will go down the legal route at all as the case they are putting to me is very weak with no real proof, its all circumstantial. I was paid on presentation of my invoices and no mention of any breach of contract or my work itself was made at any point until after the contract ended. When I received the first indication that there was a problem, the client did not ask for help in resolving the alleged issues, but decided to go straight for the wallet with the threat of court action if I do not comply.

 

I have a defense ready, including several other things which I will not go into in case eyes are watching but needless to say I am prepared if the legal route is taken.

 

The facts here are that all correspondence was completed via business email that I do not have access to, and the SAR I have received is a copy and paste of certain information from those emails, not the actual emails themselves. The "company line" is that there may be third party information within those emails, however the actual reason is that the case holds no merits if the emails are produced in their original form as their content would clearly show that the reasons for the claim are unfounded. The emailed I have had transcript ed have been chosen to strengthen the case for the client. Their notation has been included to "strengthen" this further.

 

In regards to the client stating that they believed that I was planing to blackmail them (as stated in the notation of the SAR) can I do anything about this? I am wondering if I do not address this now, will it look bad in court if it ever went that far?

 

I have had three letters, two emails and several text messages, one of which was quite abusive, since December last year. I had until the 10/07/2016 to pay a third of the money the client believes they can win in court, to the clients account or they would take legal action (they have stated this three times already and the deadline has been extended 3 times!)

 

Would it be prudent to respond stating that I refute all allegations and will treat further attempts to gain money from me as extortion and harassment and that I will pass the details onto the authorities if it continues? Or should I just leave it in the realisation that it will probably not go to court at all and that eventually they will go away?

 

I have moved in the past few weeks so I at least need to give them my new address so that they do not file at my old address and win by default if they do go to court, no?

[Mr.P]

Would it be prudent to respond stating that I refute all allegations and will treat further attempts to gain money from me as extortion and harassment and that I will pass the details onto the authorities if it continues? Or should I just leave it in the realisation that it will probably not go to court at all and that eventually they will go away?

 

I have moved in the past few weeks so I at least need to give them my new address so that they do not file at my old address and win by default if they do go to court, no?

 

The standard advice would be to ignore all communications unless it is a court claim. However, in light of the fact that you have recently moved, I would suggest writing one letter refuting all allegations and if/when they reply, you have proof that they know your latest address.

[Spurs4ever]

The standard advice would be to ignore all communications unless it is a court claim. However, in light of the fact that you have recently moved, I would suggest writing one letter refuting all allegations and if/when they reply, you have proof that they know your latest address.

 

Which is exactly what I thought and why I needed confirmation. My luck is that I don't tell them of the change of address and they start proceedings and I lose by default.

 

Should I add the extortion / harassment part too?

[unclebulgaria67]

Agree with Mr P. Just advise them of your new address and refute any allegations they have made. But you don't need to go into a full explanation, which they might use later. Best to be short and to the point.

 

I don't think it is worth pursuing the blackmail issue or them asking you for payment due to you not fulfilling the contract. You have some info from your SAR and if they issue a court claim, you can deal with it. You might want to get Royal Mail redirection of post for 6 months just in case they send anything to your old address. Some Solicitors do seem to conveniently ignore new addresses and hope they get away with it.

[Spurs4ever]

I have redirection until the end of august, and I may extend it, however I am thinking that sending the letter with my new addres details by recorded delivery will be enough to prove that they have the new address.

 

Out of interest, if the client is told that I have moved and have the relevant details, but serve the order to the old address and win via default, does being able to prove that the client has my new address details mean that I can contest if a judgement is made against me?

 

Something like this? ....

 

I write this letter in response to the covering letter you sent with the Subject Access Request response I received via post on , and the allegations made against me in your previous letter dated .

 

I would like to go on record to state that I refute the allegations you have made against me, and furthermore will defend myself against those allegations at every opportunity.

 

As of , my postal address changed to:

 

 

Please update your records accordingly.

 

Yours faithfully

[unclebulgaria67]

Something like this? ....

 

Yes that is good and send recorded delivery. If they used your old address to get a default CCJ, you should be able to obtain a set aside, but would have to provide a defence to the claim, as well as the service of claim to wrong address issue.

 

Getting an extension on Royal Mail redirection is advisable, as a little expense is cheaper than the potential £255 court fee to apply for CCJ set aside, as well as all the hassle.

[Spurs4ever]

The date that the client was going to file at the small claims court was 15/07/2016. I have not had anything sent here yet, but that's not to say that it is not on its way.

 

I'll send the letter by recorded delivery and will sit back and see what happens. I cannot contest any claim until I have the documents anyway and there seems to be no way of checking to see if a claim has been made against me without them, unless anyone knows any different?

[donarebun]

Hi,

 

I would have made a Pre-Action Disclosure Request, they most likely wouldn't reply.

 

Then you can use that against them if it ever goes to the Courts.

 

Some might argue that it is a small claims case and so there shouldn't be a CPR31.16.

 

I always point it out to them that it is the prerogative of the Courts to allocate it to track and so they should comply.

 

If they provide anything great then you have something to work on.

 

If they don't then you have a little insurance incase things don't go your way.

 

I always engage them as it weakens them.

 

All the best

[ericsbrother]

well, they have rather damned themselves but as far as the DPA goes it is your data so they were correct to include it. It will also make them look very foolish if they then decide to start something and in any case the contract was ended by mutual consent otherwise you have an equally valid claim for the money you would have got if the contract had run its course.

I reckon they had to pay someone else to finish the job and rather hoped you would be fool enough to pay the extra your replacement charged them. Now they have been put to a bit of trouble supplying the paperwork that shows the true status of things at the time they wont want to continue as that will cost them more than the new guy is charging

[Spurs4ever]

in any case the contract was ended by mutual consent otherwise you have an equally valid claim for the money you would have got if the contract had run its course.

 

It was an ongoing contract with no end date. Can I still counterclaim on this basis?

 

Anyway.....

 

Was greeted with this sent to me this morning via email...

 

 

This has allegedly been filed on 21/07/2016 (according to the accompanying email I was sent) with my defendant address being stated as my old address, however I have proof via a signed recorded delivery slip showing that the client was made aware of my change of address on 19/07/2016, some two days before allegedly filing this claim (I say allegedly as I cannot check online as there is no password on the above form).

 

Any thoughts on how I approach this given the above?

 

The accompanying email states:

 

"Please find attached court details as issued today. Please make payment of £10,117.14 as soon as possible to avoid receiving a CCJ against you."

 

Got to love the arrogance eh?

 

Should I reply to the email, or ignore all of this and wait for the official paperwork to hit my doormat, assuming the claim has actually been submitted?

[unclebulgaria67]

Wait for it to arrive from the court. You have redirected mail service, so should get it.

 

It has to be set up by the Court first and then might take a week or so to arrive. What has been sent appears to be what they have filed. When you get it, you acknowledge online that you will defend in full and send them letters asking them to disclose relevant information.

[Spurs4ever]

So I guess we will sit and wait .... will update when the paperwork has arrived as I am at a loss as to how to proceed properly.

 

Thanks for everything so far.

[ericsbrother]

you wait and see what arrives.

 

As the sum claimed is over £10k it will not be small claims and you can then hit them for proper costs if they have done what they have said and are not just making it up in the hope you will pay up at this early stage.

 

This means that you will be able to claim any legal costs or LiP costs for the time spent on this.

 

As self employed I hope you have insurance so look out waht you ahve and see if legal expenses are included.It migh even be on a household policy.

 

If and when the claim form arrives you respond to it by acknowledging the service of it right away and you then have a month to submit a skeleton defence

 

. Use this time to consider what it is they are suing you for as it does seem at this juncture that if you got paid for work done then they cant expect you to pay that all back and work for free.

 

The wording is pretty damning (and sloppy in places) but at the moment will carry little weight without a proper schedule of loss.

They will have to produce this at some point and before exchange of documents.

 

If you do decide to counterclaim it may cost you a fee depending upon the value of that counterclaim.

 

I bet they are hoping that you are willing to go to mediation and agree to pay them something (anything to justify their court fee) so you need to consider why this would or wouldnt be an acceptable path because the judge surely will.

 

You may have to have a case management hearing so it can be determined how to proceed. Costs for this are normally awarded to the "winner" at the end but if one side is unreasonable in their behaviour then the court can award costs up to that point

 

so make sure that you do ask for documents from the employer under CPR 31.14 that you know they have and wish to rely on.

 

If they then fail to produce these in a reasonable time (say 14 days) that will be them paying the CMH costs.

[martin2006]

It may still be SCT as the amount ckaimed is under 10k, the court costs take it over 10k so it could reasonably be argued that it remains in SCT.

 

Looking at that N1 tho it hasnt been stamped by the court seal so could easily just be a Downloaded blank they have filled in to send as a threat.

 

I also noticed the claim number has been blanked out, presumably by yourself to redact the N1, now if it has a claim number then its been through the court admin to process, so where is the seal, or is it a faked case ref?

 

I would call northampton and ask for clarity re the claim number as the document has no court seal.

[Spurs4ever]

As self employed I hope you have insurance so look out what you have and see if legal expenses are included.It might even be on a household policy.

 

I was self employed at the time but had no insurance. It's also not covered on my home insurance I have checked.

 

Use this time to consider what it is they are suing you for as it does seem at this juncture that if you got paid for work done then they cant expect you to pay that all back and work for free.

 

That is exactly what they are expecting. See below, but the initial contact asked me for £4k or face a £12K claim in court.

 

If you do decide to counterclaim it may cost you a fee depending upon the value of that counterclaim.

 

I am going to counterclaim. The facts are that I moved to PAYE when the contract with the client was cancelled and due to the stress and worry of this potential legal action (bearing in mind I have been sent letters, emails and text messages since December 2015 hassling me to pay up or face legal action), I lost sleep due to worry and eventually could not perform at my PAYE job. I was released from my position a few weeks ago due to my performance (which had been more than acceptable previously) and I am currently unemployed (but not claiming).

 

I bet they are hoping that you are willing to go to mediation and agree to pay them something (anything to justify their court fee) so you need to consider why this would or wouldn't be an acceptable path because the judge surely will.

 

It would not be an acceptable path as I do not think I have done what they are claiming.

 

Let me give you an example of what the client is alleging I have done...

In May 2016 the client asked me to invoice a company for a mileage payment for a seminar they had conducted previously. In the SAR Request response the client claims that I never produced that invoice and therefore they lost £46.80

I remember this clearly, and can recall emailing the client regarding the invoice, dates of the seminar etc. My replied went unanswered. Of course, this is not mentioned in the email transcripts I have received.

 

On another occasion, I emailed the client with a draft invoice asking for them to check it over and for an email address to send it to as there was no indication. I received a reply but the client alleges that I never sent the invoice and the company lost £1215.60.

Let me point out that I in May 2015 I was chasing invoices from 2012 that had still not been settled, and due to the nature of the clients business it was not uncommon for a 12 month period between invoicing and payment. So saying that they lost £1215.60 is rubbish as even if I did not invoice it out, they could have still invoiced it after I left. Incidentally, I was invoicing for 2012/2013 work in 2015, so its not out of the realms of possibility.

 

Oh and remember, according to the claim (assuming it is real) I "did not complete the tasks contracted". It's amusing that even though I did not complete the tasks contracted, I still managed to rack up 36 pages of emails tyo the client in a 6 month period, none of which (apart from the last week of the contract) mention anything about my work, or lack thereof.

 

My argument is (and will be) that if I had proper direction and support, the any problems would have been caught and dealt with at the time. Not only that, but any invoices that may have not been issued, can always be issued now, so the money is not "lost" and therefore cannot be my liability, especially when I was chasing and issuing invoices from well before I worked for the company.

 

You may have to have a case management hearing so it can be determined how to proceed. Costs for this are normally awarded to the "winner" at the end but if one side is unreasonable in their behaviour then the court can award costs up to that point so make sure that you do ask for documents from the employer under CPR 31.14 that you know they have and wish to rely on. If they then fail to produce these in a reasonable time (say 14 days) that will be them paying the CMH costs.

 

I have absolutely no idea what you just said

 

I worked hard for 6 months, issued my invoices at the correct time each month, and was paid on time by the client with no indication of the "issues" they feel that have had to deal with due to my "lack of work". The contract was terminated mutually, albeit it not in a nice way, I handed over and offered to aid where I could if things were not clear enough (I did produce documentation outlining certain things but also offered to help if they had any problems with this). I heard nothing from the time I left to three months later when I was initially contacted asking me for a £4,000 payment or face legal action for over £12,000.

 

Through-out the 36 pages of email transcript I have been sent (the copy and paste documentation with the clients opinion appended to it, not the actual emails themselves) there is the odd mention here and there where the client claims they have asked me to do something and I apparently did not. I am sure that in the course of my time working for the client, and with the state of the organisation as I found it, that things may have been overlooked, however with no indication of what I had missed due to the clients lack of involvement in their own business.

 

3 months after the contract ends, and the client decides to take an interest in their business and now wants to penalize me for every problem they have, and it is this reason why I will not pay anything to them voluntarily. In fact I am hoping it is real and I am taken to court over it. I am confident that I have a case.

 

I also noticed the claim number has been blanked out, presumably by yourself to redact the N1, now if it has a claim number then its been through the court admin process, so where is the seal, or is it a faked case ref?

 

I would call northampton and ask for clarity re the claim number as the document has no court seal.

 

I blanked the personal detail out including the case number.

 

When you say Northampton, where do you mean?

 

Just called Northampton and they told me that they have no claim under the claim number on the form I received, however it could be that it was only submitted a day or two ago and that it would not appear for 48 hours anyway.

 

Will have to check again on Monday / Tuesday of next week.

[martin2006]

Atm it looks like they are trying to spoof you into thinking they have issues a claimform.

Keep all of this evidence in case you do need to go to court over it.

 

Wonder what a judge would think of that?

[donarebun]

 

 

3 months after the contract ends, and the client decides to take an interest in their business and now wants to penalize me for every problem they have, and it is this reason why I will not pay anything to them voluntarily. In fact I am hoping it is real and I am taken to court over it. I am confident that I have a case.

 

It takes more than confidence to win a case.

 

I have seen a lot of people go to court thinking the Judge will see reasons with them, unfortunately most Judges follow the evidence not reasons.

 

You really need to start getting your evidence now.

 

Ask them for what information they have against you

 

Ask them for the evidence and documents that they will use against you.

 

Most likely they wouldn't give you but you can use that against them in case you lose.

 

I'm sorry I will have to repeat myself here; You need evidence and documents to win a case, not confidence or reason.

[Spurs4ever]

A little update to this...

 

The claim is real and was served on 25th July to my previous address (even though the claimant was in receipt of my new address).

 

After the obligatory 5 days grace to get to me I have until 13th August to file my acknowledgement of service and a further 14 days after that to file a defence.

 

With this in mind, I have just spent some time (and £70+ VAT) with a local trainee solicitor who advised that on initial inspection the contract I was given may well be a contract of employment due to the terms and conditions within in (hours of work stated clearly, place of work stated clearly, how and when to complete work stated clearly - all the things that show they you are an employee and not a contractor). Additionally, the contract states my name and not my company's name and I signed it as myself and not "trading as".

 

The solicitor advised that they wanted to clear a few things up, namely if it was indeed an employment contract, and if so if the claimant could make a claim for breach of contract if I was in fact an employee, even though there is nothing in the contract regarding breach of contract issues, or any kind of grievance for that matter.

 

I have just been emailed a price list and have been advised that it will cost £300 for the solicitors fees and a further £450 for a barrister to overlook the contract (All plus VAT) before I can get answers to the above.

 

So I am looking at £900 to get definitive proof, which is a problem as I simply do not have it spare.

 

Any suggestions on alternative methods to get the same information will be gratefully appreciated.

[donarebun]

A little update to this...

 

 

I have just been emailed a price list and have been advised that it will cost £300 for the solicitors fees and a further £450 for a barrister to overlook the contract (All plus VAT) before I can get answers to the above.

 

So I am looking at £900 to get definitive proof, which is a problem as I simply do not have it spare.

 

Any suggestions on alternative methods to get the same information will be gratefully appreciated.

 

This is one major reason why you ALWAYS engage the other side early in the litigation process.

 

To ignore letters is always a dangerous gamble to take and sometimes it doesn't pay off.

 

It is a little too late to get information from the other side now that litigation has started.

 

I would try the Citizens Advice Bureau but you might not get the advice you need due to the short period.

 

I would google free legal advice for small businesses as technically you are a small business.

 

Again you will not get much there but you will get to see and review lawyers who will offer their services for a lower rate than you are getting.

 

It really saddens me that you didn't engage with the other side earlier as you would have saved yourself all these worries/problems

[Spurs4ever]

This is one major reason why you ALWAYS engage the other side early in the litigation process.

 

The litigation process only started 6 days ago. Before that I was receiving idle threats to try and extort money from me. Besides, my issue is to do with teh legitimacy of the contract I was working under, something that the claimant has little idea about it would seem.

 

To ignore letters is always a dangerous gamble to take and sometimes it doesn't pay off.

 

When I left back in September I offered my help if there was anything that was not clear and this was not take up. Instead the claimant claims to have paid others to clean the "mess" I had left behind me, possibly in a similar way I was paid to clean up the "mess" that came before me.

I received the first letter from the claimant back in December 2015 stating that if I did not pay them £4000 of the £12000 they were told they could get in court then a claim would be made against me. No attempt to resolve the issue in the first instance, just straight for the money. I took legal advice and was told that unless the letter was an instruction from a solicitor on the claimants behalf I should ignore it as it was a (and I quote) a "shot across the bow" to see if I would pay up.

 

Two letters and a few unpleasant texts later and the claimant eventually decides to put in the claim. Not for £12,000, but for just shy of £10,000 so that they only have to deal with the small claims court. Their previous letters clearly claim that they believe they are entitled to £12K+. Funny how the amount being claimed for is less than the amounts they were threatening me with previously eh?

 

It is a little too late to get information from the other side now that litigation has started.

 

They would not have given it up anyway. The SAR request I sent was responded to on the 41st Day after submission and even then it was reluctantly given, with certain information omitted that would have incriminated them.

 

Not sure what I could have done to engage the claimant when they have absolutely no intention of offering me any information and are only out to get money from me.

 

I would try the Citizens Advice Bureau but you might not get the advice you need due to the short period.

 

I was thinking that, but the more I look into it, even going by the Governments / ACAS own direction on the matter, I was a contractor who was working under an employee contract, so the claim I have received from the claimant holds no merit (as they are trying to sue me as a contractor at the time of the incident).

 

I would google free legal advice for small businesses as technically you are a small business.

 

Technically I am not. I went to PAYE straight after this episode and ceased all self employment. I am currently unemployed.

 

It really saddens me that you didn't engage with the other side earlier as you would have saved yourself all these worries/problems

 

I'm not overly worried to be fair. The contract issue aside (which I think will be enough to throw the claim out anyway) judging by the notation in the SAR I received, the claimant has little to go on. I have enough evidence through the SAR Response to file a defence that will put doubt into the mind of any judge as to the legitimacy of anything the claimant may state. There is far to much contradiction in what I have been sent and false claims that I can prove otherwise. Yes it would be good to know the exact reasons but I know enough to be able to make a defence.

 

Thanks for your response though.