Small Business claim form received

[honeybee13]

Hello there.

 

 

Solicitors often come on strong to non-legal people to try and frighten them off. Bear with us please, I'm sure people will be along later to advise you.

 

 

HB

[AndyOrch]

ok guy's so had a reply now from the claimants solicitor who have said..

 

1 - Our defence does not comply with part 16 of the civil procedure rules, and they are entitled to have struck out It does comply with CPR 16.....on what grounds do they wish to strike out ?

2 -The defence is vague and that we have made no attempt to identify what the special prices agreed where or evidence to support this (this had already been given to the claimant before court action was commenced and i assumed we would then re submit this before the court date) An initial defence does not contain evidence...in fact its impossible through MCOL...thats follows at a later stage.

3 - They also say the client sticks by the allegation we were not overcharged and theirs nothing to investigate. Good then they will be able to disclose documentary evidence to prove this.

4- They say to comply with CPR our defence is inadequate and we need to set out in our defence what was agreed and attach copies of what was set out - if we don't they will apply to strike out our defence. See Point 2 above

5 - They have asked why invoices were paid on time, and then more recent invoices this year not paid (we didn't pay these invoices as the amount is the same as what we estimate as the overcharges)

6 - They go onto say to we owe £xxx and they will discount by £300 if we pay by a certain date. Is that the same amount as overcharged ?

It's a heavy letter to be honest - what do you guy's think?

 

Would prefer to see the actual letter (redacted)

 

Andy

 

[liam1806]

6 - They go onto say to we owe £xxx and they will discount by £300 if we pay by a certain date. Is that the same amount as overcharged ? - yes to reiterate we withheld payment of £x which is the same amount we were overcharged and we paid last year.

 

Actual letter;

 

I act on behalf of xxxx in place of xxxx and attach a notice of change of solicitors who all correspondence should be sent too.

 

Reason your defence does not comply

 

The defence simply consists of a vague, un-particularised allegation that you had agreed a special price with my client. You made no attempt whatsoever to identify what that special price was, or evidence it. You make a vague allegation that you have been overcharged to the sum of £xxxx, but later say this is the amount we calculate, as the claimant would not investigate thoroughly. With respect my client denies that there has been any overcharging whatsoever and it is for you to establish that there has.

 

In order to comply with CPR, you need to file a defence setting out exactly what was agreed and attaching a copy of any written agreement. if the agreement was not in writing, then you need to confirm who the individuals were that made the agreement, when it was made, and precisely what the agreement was.

 

Your current liability to settle

 

My client has confirmed they do not accept any overcharging whatsoever. I am instructed you provide a order and my client provides a acknowledgement of the said order. if at this time you believe anything to be wrong, including the price, then you are required to raise this with my client. if you fail to do this, then the order is delivered and you are invoiced accordingly.

 

I am further instructed that you paid all invoices without any dispute. You are now seeking to withhold payment of more recent invoices, even though there is no dispute in these recent invoices.

 

Your current liability is £xxxx. Entirely without prejudice save as to costs, my client will accept £xxxx in full and final settlement (a discount of £300) provided this is received 27th July.

 

Summary

 

in the event you do not accept this offer of settlement, then you are required to send me your amended defence, fully signed and it must comply with part 16 of the CPR rules, by no later than 27th July.

 

If you fail to to either settle the debt or serve a amended defence, then I will advise my client to instruct me to make a immediate application to have the defence struck out and to seek the costs of that application from you. at the hearing of the application, I will be producing a copy of this letter when the question of costs come to be considered, to demonstrate that i have carefully explained the legal position to you, and rather than making a immediate application to have the defence struck out, I have given you a opportunity to put matters right without costs escalating.

 

i recognise that you have a right to defend this claim. However I would strongly recommend you seek urgent legal advise in light of the fact that it appears that you do not have any defence to this claim, and in continuing to defend it is likely that ll you will be doing is increasing your liability.

[AndyOrch]

So are you going to accept...puts you back to where you should be ?

[liam1806]

Well if we were to accept that, its still nearly £1k more than the 'disputed' court claim.

 

The final decision is not down to me to carry on we are going to have a meeting tomorrow with the director.

 

What do you think - can they strike out our defence as they say they could?

 

To be honest we feel strongly that the claimant is being unreasonable

BUT we do not want a county court judgement against the company so that worries us.

 

I thought, even if things went against us and the judge ruled against us we would get the option to pay off avoiding any judgements.

Edited July 18, 2018 by liam1806

[AndyOrch]

Then that does not satisfy your defence...you want the full discount value offered and agreed.

 

Look you can ignore all that guff above...you defence does comply with CPR 16...I should know I drafted it.

 

With regards to amended defences ...they dont tell you to amend a defence...you need the courts permission.... oh and the fee is £255.

 

They can try and strike it out...but it wont be because its not pursuant to CPR 16...to strike out a defence if it consists only of a bare denial with no facts, or if the facts could not possibly amount to a defence...which your defence is neither.

 

You can write back to this clown and offer a counter offer...full discount or defence stays and we proceed to trial...your offer will then counter theirs if they wish to produce " the Letter "...no point producing it for costs purposes...as small claims track claims are fixed costs...so another irrelevant threat.

 

 

Andy

[liam1806]

Thanks Andy.

 

I had looked around at other initial defences you had prepared along with others - so could see all was done in line with MCOL and CPR 16.

 

I am minded to write back, and say we have compiled with CPR 16 and will submit a full defence along with evidence when directed to by the court, in the meantime we would offer a settlement of 50% of the claim (we did actually verbally offer this to the company at a meeting as it was clear there was mistakes made by both sides in double checking invoices last year).

 

Lets say worst scenario, and they striked out (I know unlikely) or we lost at court - would we get the opportunity to pay rather than immediately get a CCJ?

[jon8214]

if you loose and pay the amount within 30 days of judgement then the CCJ will not show on the companies files

[AndyOrch]

Dont forget to head your letter in response " Without Prejudice Save as to Costs "

[liam1806]

What do you guys think with this response to there letter?

 

Dear Sir,

 

xxxxxxxxx County Court Claim.

 

We write in response to your letter and email received dated xxxxxx.

 

To answer your questions;

 

We disagree, in that we have complied with part 16 of the Civil Procedure Rules correctly, in that in entering a defence via MCOL, this only allows you to enter a short defence and that we would then exchange full defences/documents once instructed to by the court – I believe 2 weeks before any hearing date.

 

To strike out a defence, would be if it consists only of a bare denial with no facts, or if the facts could not possibly amount to a defence – neither applies to our defence. Also, to amend and resubmit our defence, as you suggested, is only allowed by a court and then a further cost to us is required?

 

You also go on to say, our defence is vague and unparticularised. Copies of emails had already been submitted to xxxxx, outlining agreements and pricing, but they chose not to investigate and comment on these.

At a meeting held with the xxxxxx, on the xxxxxx we had suggested a without prejudice settlement of £xxxxxx(half of the over charges) – as we wanted to carry on working with xxxxxx and we were advised this would be discussed by xxxxxxx. It was also suggested by the xxxxxxxx, if we moved all of our business to them they would set up a rebate for the following year, based on what the over charge was.

[AndyOrch]

I wouldn't bother pointing out all their lack of understanding of the legal process....simply make your counter offer what you would be willing to settle at and as stated head it " Without Prejudice Save as to Costs "

 

Then its up to them if they wish to proceed....keep everything vague at this stage...dont feed them.

 

 

Andy

[liam1806]

We have a letter from the solicitor, basically saying we think we know the law better than him! He has now said he has instructed an application for a hearing to have our defence to be struck out and all costs to be passed to us.

 

He has said he will be producing both letters (his and our reply) to the judge to demonstrate he has tried to be reasonable and resolve.

 

Look, i'm not daft, as i had done my research and also took on board to what has been said by you . As you had prepared the defence, and my understanding that a full defence is then submitted ready for a hearing at a later stage -have i missed something here, as i'm worried i have done the wrong thing?

 

Have you had seen this before? and what will happen?

[AndyOrch]

What did you put in your response....I did advise not to teach them how to suck eggs ? Just make your counter offer.

 

Can you scan redact and upload both yours and their response ?

 

Andy

[liam1806]

I said in reply... i hope I haven't made it worse...

 

 

To answer your questions. We disagree, in that we have complied with part 16 of the Civil Procedure Rules in that in entering a defence via MCOL, this only allows you to enter a short defence and that we would then exchange full defences/documents once instructed to by the court.

 

To strike out a defence, would be if it consists only of a bare denial with no facts, or if the facts could not possibly amount to a defence – neither applies to our defence. Also, to amend a defence, as you suggested, is only allowed by a court and then a further cost to us is required.

 

You also go on to say, our defence is vague and unparticularised. Copies of emails had already been submitted to xxxxx, outlining agreements and pricing, but they chose not to investigate and comment on these.

 

At a meeting held with xxxxx, on the xxxxx we had suggested a without prejudice settlement of xxxx (half of the over charges) and we were advised this would be discussed by xxxxx. This offer still stands

 

They replied....

 

 

I have done my best to explain the legal position and you are determined that you understand the law better than I do.

 

I am now instructed to issue an application to have the defence struck out and a hearing date will be set shortly where a Judge will decide which one of us is correct. I will be seeking the costs of the application from you and will be producing a copy of both letters to the Judge to demonstrate that I did all I can to explain the position, but you chose to ignore this.

 

With regard to the offer, it is rejected. By way of counter offer, we will accept the principal debt and all costs, but will waive its entitlement to interest. This offer will remain open for acceptance up to and including the hearing of my application. In the event that you wish to accept the offer, then please confirm and I will provide you with details of the costs at that time.

Edited July 25, 2018 by liam1806

[AndyOrch]

Okay here is whats happening.....they only have 2 days left to decide if they wish to proceed to allocation and inform the court....after Friday they will have to make application to proceed..which will cost them another £100 to lift the stay.

 

If they wish to make application to strike out/summary judgment then they must provide evidence on what their application relies upon....The fee is £255 with hearing

 

Application for this action run separately to normal process but cant be used to short cut the process or used as a mini trial.

 

An application for summary judgment is usually only made once the defence or acknowledgement of service has been filed.

 

Summary judgment applications are suitable in cases where the party making the application considers that the case is a clear cut matter of fact or law, in which oral evidence is not required. It is also used when the applicant considers that the other party has insufficient evidence to prove its case. There are considerable potential savings in terms of time and costs.

 

An application notice must be completed, then filed and served along with the supporting evidence - usually a witness statement together with copies of any supporting documents. The supporting evidence will set out the reasons why the applicant considers summary judgment to be appropriate.

[AndyOrch]

So its your choice whether to back down and accept their offer...or ignore and see if they do make application or proceed to allocation.

 

Their responses smack of desperation to me and no way do they wish this proceed to trial.....if you have written evidence of this agreement and discount....i really cant see how a court court could uphold their claim.

[liam1806]

Thanks Andy you've made clearer.

 

I wonder if they are trying to 'bully' us as they can see no solicitor on our side. I do think they are trying to avoid a full 'hearing' and doing there best to find a way to strike out - but not being a legal expert this worried me.

 

We have 3 keys pieces of written proof I would submit to the court to support our defence.

 

We have come this far, so intend to carry on.

Edited August 9, 2018 by dx100uk
quote

[AndyOrch]

See what their next move is

[liam1806]

We received a letter from the claimants solicitor with a 'application notice' with a request for a hearing.

 

Their solicitor states that our defence does not come close to satisfying a CPR16 and fails to provide any details of any agreement, and our tactics are to avoid payment.

 

They have attached a full witness statement with documents from their client.

 

One paragraph states our present defence be struck out, and if we don't file a amended defence within 7 days from the court ordering usto, judgement be made against us.

 

They have asked for costs to be awarded to them.

 

Also the solicitor has had the case moved to a county court near them, and asked for a hearing to decide?

 

What do you think?

 

Whats the maximum costs which can be awarded to this solicitor if we lose?

 

Just to clarify as well ;

 

Evidence sent to claimant and original solicitor prior to county court been issued

- so they had the facts even before we entered a shorter version MCOL online?

- Then allocated to another solicitor.

Edited August 9, 2018 by liam1806
spacing

[AndyOrch]

A defence is not suppose to provide any details of any agreement...thats for the claimants particulars and statement.....and too right its to avoid payment..particularly when you have been promised a discount.

 

So what does this application actually ask the court...what Order ....Lift the stay....Strike out your defence...Summary Judgment ?

 

Any hearing will be in your local county court ...not theirs ..you are the Litigant defendant.

 

CPR 16.5..just so your familiar with it.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part16#16.5

 

Would be helpful if you could scan redact and upload the N244 and Witness Statement......I could do with a little amusement

 

 

Andy

 

Andy

[liam1806]

I haven't got the paperwork to hand but it deffinetly titled ' application notice' an official court form.

 

This was with a 10 page witness statement and documents from there client. One of the point's on the witness statement is to ask the judge to make us complie with cpr16 within 7 days of been told too or enter judgement if we dont obey.

 

They had submitted the application at there local court which is 300 miles away from us and asked for a hearing in front of the judge to decide.

 

So the form submitted to the court is a application notice NOT a strike out notice.

[AndyOrch]

I dont doubt your word Liam.....but the above is little use until you tell me what order they are asking for and upload their statement...there is no such thing as a Strike out notice...thats one of many orders requested by way of an application notice...N244.

 

The witness statement is in support of the Order they are requesting...which will be 1 of 3 options ...Lift the stay or strike out the defence/summary judgment or a mix of all 3....the order requested you cant tell me as you dont have it to hand.

 

So until you upload I cant advise your next move.

 

And finally you dont do anything until the court confirms the application and hearing date...the court sets the time frame and deadlines...not them.

 

 

Andy

[liam1806]

i have added the application notice.

 

Witness statement points are...(abridged)

 

1 - i would explain i took over this matter from xxxx who issued the claim on behalf of the claimant. xxxx do not act on contested matters and once a defence came in, the file was passed to me.

 

2 - in my submission, the defence makes no attempt to comply with part 16 of the cpr and does not allow the claimant, or indeed the court, to fully understand the case being put forward by the defendant.

 

3 -More particularly the defendant refers to a special price, but makes no attempt to identify what the price was, nor when the agreement was made and made who with. for the record I am instructed and believe the claimant is satisfied that it has charged the correct prices and has made this point on several occasions to the defendant.

 

4 - The defendant is able to provide a precise calculation of the overcharging. it must therefore be in a position to explain to the claimant where this figure comes from, and yet has refused to do so.

 

5 - upon taking over this case from xxxx i immediately put a call in to the defendant but no one was available to speak to me so sent a letter. (Note we have no record of this)

 

6 - The defendant replied on xxxx indicating they took the view that he had fully complied with CPR16 and he was only required to file a short defence. he went onto argue that the claimant is not entitled to make a application to strike out the defence and then suggests that he had previously emailed the claimant for further details, but has failed to provide any further details to me. i cannot attach the letter as part of it is subject to privilege.

 

7 -the court will appreciate, but for the benefit of the defendant who is a litigant in person, it is not for the claimant to guess at what the defence is.The defendant is required to clearly set out its case so that the claimant is able to understand.

 

8 - Untill the defendant pleads the purported agreement which is relying on and highlights with reference to the said invoices the claimant cannot investigate .

 

9 - i attach invoices explaining the ordering process

 

10 - The invoice was raised in xxxx 2018 but bears the date xxxx 2017, because the claimants accounting system defaults to the date the invoice was printed out.

 

11 - This is one example to demonstrate the point and the claimant has identical paperwork for all orders.

 

12 - In the circumstances, i seek a order that the present defence be struck out and that if the defendant does not file a amended defence that complies with CPR within 7 days of the date of this hearing, then the claimant be at liberty to enter judgement.

 

13 - To confirm the defendant as litigant in person, the amended defence should include full details of any agreement on which the defendant intends to rely in respect of overcharging, with full particulars of each and every invoice in respect of which the defendant suggests it has been over charged, showing amount charged and the amount the defendant maintains should have been charged.

 

14 - I seek the claimants costs of this application. I could have simply issued this application without reference to the defendant, but I made every effort to explain to them clearly why the defence was inadequate in a attempt to avoid further costs, but the defendant refused to accept what I said, or even take there own legal advice, and insisted he he did not have to provide any further details and that my client was not entitled to make this application.

dc1.pdf

[AndyOrch]

Okay thanks Liam

 

 

So an application to strike out your defence and a witness statement in support of their application pursuant to CPR Part 3.4 with costs, which really states no grounds as to why the court should strike it out....and you to submitting a further particularised defence. Does not attach a draft order to the application and yet requests a hearing.

 

Are you sure this is from a Solicitor ?

 

As already stated I would not consider your initial defence to be none CPR 16.5 compliant.... it responds to each point of their pleadings.

 

It would seem that they do not fully understand the process of making a money claim and that an initial defence is a basic response which challenges the claimant to proceed further..if they feel they have a valid claim and evidence to prove it.

 

He is trying to short cut the process without allocation...without full statements or evidence...and requests a further detailed defence before it proceeds to stage 2......otherwise your defence should be struck out.

 

 

So what next...wait for conformation from the court that the application has been accepted and that a hearing date has been set...if so and the court does not reject this nonsense...you will be afforded the opportunity to submit your own witness statement in response to this application...normally the time frame is not less than 7 days pre hearing.

 

So come back when the court advises..

 

Regards

 

Andy

[liam1806]

Many thanks Andy for your help so far. To be honest, I didn't think it would get so complicated!

 

Received the attached N180 in the post today, dated Wednesday - this is what I had expected the next stage to be...

 

As the solicitors had submitted there 'application' earlier in the week - will that be separate from the N180 received today do you think?

dc2.pdf