Should I reply to defence?

[Xyresic]

Hi all, to briefly summarise my case. I initiated action against an individual for unpaid wages for a job done awhile back. This person is defending the claim in full saying that I was contracted through his limited company. In essence he is denying liability.

I was just wondering in this instance is a reply to his defence merited? In our communications prior to the job he never said he was acting as a director of a company nor did he include statutory required information about any company in his communications with me which would be a breach of reg 24 of SI 2005/17. Can I bring this up in my reply?

Is it true I can't quote legislation or breaches to regulations in my Witness statement so the reply would be only possible place. My particulars of claim was quite brief.

[atticus]

Yes, you can raise those points.

Witness statements are for setting out facts. You make your legal arguments at the hearing.

[Xyresic]

Many thanks for your reply. I am not the best orator so I am quite fearful at the prospect of a hearing.

I mentioned in my particulars of claim that the defendant paid me for part of the job. He didn't address this in his reply. Is there any significance of him failing to address that?

Could I expand further on that point in my reply to his defence? (that he deducted tax from my pay and didn't pay the HMRC on my behalf) Or would that be suitable for the witness statement?

[Xyresic]

Does anyone know whether there is a form for replying to the defence or can I write a reply on a blank piece of paper and submit it with my directions questionnaire?

[Xyresic]

I noticed a mistake in my initial post. I meant to say breached SI 2015/17.

[Pezza54]

Please read constructionblog.practicallaw.com/the-limits-of-a-reply

The article explains what you can and can't write in a reply to defence.

The front page should state the case no. the county court name,. the Claimant, the Defendant and headed Reply to Defence

Paragraphs should be numbered with numbers corresponding to the Defendants paragraph numbers.

Ending with signed Statement of Truth.

The reply should be returned to the court with the questionnaire and a copy of both sent to the Defendant.

[Xyresic]

Much appreciated

[Xyresic]

Hi all, I'm at the stage where both parties have sent DQs (I did not receive the DQ from the defendant). Some new information has come to light in that the defendant did not pay tax on the money that was paid to me. He deducted the tax but didn't pay the hmrc.

Can I add the unpaid tax amount to my claim? Is it possible to amend at this stage? Is it possible to withdraw my claim and make a new claim? Just trying to figure out the best course of action?

[Pezza54]

You need to apply to the court. Please read CPR 17.4 (2) Probably a fee to pay.

When making a claim for unpaid wages at an employment tribunal, citizens advice recommend the claim should be gross to cover tax and N.I.

Did you contact citizens advice or consider an employment tribunal claim?

[Xyresic]

To clarify I am talking about construction work and CIS pay. I was a 'self-employed' contractor. I was paid for a few weeks of the job and have not been paid for the rest of the weeks. I have found out through a check that the 20% tax that was deducted from my pay was not paid to the HMRC. The claim I initiated against this individual was for the gross amount of the unpaid wages. I did not know until recently that the tax for the wages I was paid was not passed onto the HMRC.

The problem was that there were delays with contractors paying the lower down contractors due to various issues. So there was quite a bit of a time delay. Unfortunately I went to citizens advice after initiating my claim.

I was later advised I should have made the claim against the individual 'and anor' as opposed to just the individual. Could I change that too at this stage?

[Pezza54]

Anor is a court term for Another
In your case Anor is the name of the LLC.
By not including the LLC in your claim you are asking the court to "pierce the veil"
Please google www.nolo.com piercing corporate veil and read the article
The court may decide to pierce the veil if the company has acted fraudulently or the director has mixed the company accounts with his own personal account. There are other reasons.
If you can prove any of the reasons with evidence you might have a case for the court to award damages against the director.

I am unsure about advice regarding:

1. Whether you should apply to the court to add or substitute the defendant, under CPR Part 19
2. Whether you cease your current claim, rewrite your PoC and start a new claim against just the LLC or the LLC and director jointly.
3. Whether you proceed with the current claim.

I am hoping another forum user with more legal knowledge and experience will help with advice.

[Pezza54]

EXC any VIP members available to provide advice to OP?

[EXC]

It's not really my area I'm afraid.

[Pezza54]

In light of the real difficulty piercing the corporate veil and without evidence of fraud or mixing bank accounts, this is what I would do. In the end it is your decision on the route forward.

I would abandon the present claim
I would check that I had concrete evidence in the form of authorised timesheets and proof these hours worked had not been paid for.
I would start a new claim against the LLC. After checking details with companies house.
In the event that I won my case I would check the procedures necessary to obtain the money owed if the LLC refused to pay.
I would make sure I was prepared to go all the way to a charging order on the director's property if necessary.

After writing the new PoC I would put the draft on this website with names redacted and ask for comments.