MCOL - Defendant lists director on paperwork but debts are not for LTD Company

[ThumbMan]

I am currently going through MCOL over unpaid invoices and had a question regarding limited companies. I have worked with this particular person for over 10 years and although I was aware they had other businesses as well as limited companies, all of my invoices were made out to a non-limited company name at their home address, for example...

Sunrise Architecture
John Smith
66 My Road
ABC 123

It has been this way since the start of our professional relationship, invoices were always paid. But over the past year the invoices have stopped being paid so was left with no alternative but to bring a claim through MCOL. The paperwork I have recieved lists the defendant as the 'director' of the company which has left me confused, I thought it was only a limited company that could have a director.

I have done a companies house search on the defendants name and can see they have a limited company with the following details...

Sunrise Architecture & Building Services LTD
123 A Different Road
DEF 456

The name is similar but obviously very different at the same time, also, the address is totally different.

None of the court paperwork mentions the LTD company name or address and all of the paperwork and correspondence has been to their home address as per my original invoices. Where do I stand with this, am I worrying over nothing or do you think?

As they have been paying the invoices for over 10 years then does this mean they couldn't all of sudden make out that the debt is for the limited company? The whole court process is very new to me and has got me really anxious so any advice would be great!

[ThumbMan]

Anyone any thoughts on this?

[des8]

How were the invoices paid?
If from an account was it a Ltd Co account?
What is the heading on any* correspondence you had over the years with defendant ?

[R0b]

Hi,

This will be a question of fact for the judge to determine and the crucial question was who was the contracting party during this relationship. As the claimant the burden of proof rests with you to show who was the contracting party. The easiest way of proving this is a written contract but if you don't have one in place then you need to consider other evidence that can shift the balance in your favour. For example, you might want to think about:

a. Do you have copies of invoices that were sent to the defendant such as by email that you can rely on as proof that they were addressed to the individual and not the limited company.

b. I can't find a company under the name Sunrise Architecture & Building Services Ltd so either it is a dissolved company or the name of it is wrong. The closest name I can find is Sunrise Building Services Ltd. Nonetheless, if that is the correct company name, find out when it was first incorporated and (if now dissolved) the date it was dissolved. If the incorporation date was after the time you first began the relationship and it was dissolved before the relationship ended, that could add weight to your argument that the contract was between you and the individual, not the limited company.

c. Emails, text messages or any witnesses that can verify or point towards the contractual relationship as being with the individual will also help you.

d. If the money was paid by bank transfer, check your bank statements or speak to your bank and get them to verify in writing (email or headed paper) to confirm whose bank account the money was paid from. If it was from the individual's bank account or any account other than the limited company, that could also prove your case.

Remember, civil cases only requires you to prove on a balance of probabilities that what you are saying is true, so the balance of scales need only be tipped 51% in your favour. Obviously it is also important as to how you present your case and make sure the court understands what exactly is in issue i.e. the first issue to be determined is whether you contracted with the individual or the limited co. the second question is whether the invoices (which are a debt) were paid - the good thing about debts is that you only need to prove that the defendant agreed to the service and amount and then did not pay up.

I have no doubt the defendant might argue the contract was with the limited company so you may need to review carefully the defence and any witness statement put forward that you can poke holes and reduce the defendant's credibility.

What stage are you at? Has the defendant filed a defence already or are you further down the line.

[ThumbMan]

Thanks for the replies.....

- Sunrise Architecture & Building Services Ltd is just an example name, it is not the actual one as I don't want to put that info out. But it is very similar.
- All of the unpaid invoices (and all of the paid invoices) are addressed to
* Sunrise Architecture
* John Smith
* 66 My Road
* ABC 123
* I have copies of all of these along with records of the defendant comissioning the works.
- I have checked my bank statements and they do not reference a LTD company in the payments, the ref just says SUNRISEARCHITECTURE

I am quite far down with this, the defendant has filed a defence and mentinoed nothing about the LTD company other than listing themselves as 'Director' in the 'Position Held' section on the acknowledgment of service.

In fact, apart from on companies house, I can find no mention of a limited company in any of our correspondence. Their website doe not list a LTD company either.

I am pretty certain my case is a strong one and the defendant has not brought up the LTD company issue in their defence or evidence, I am just worried they will suddenly spring it on me in court and try and wriggle their way out of the situation.

[pt2537]

Its almost impossible to give any advice on the matter when we dont know what the Claim said, or what the Defence said.

If its a small claim you could face an oral argument that the Claim should be struck out because its the wrong defendant, they could raise that at trial so you must ensure that in your evidence you show who the contract was with