*** DISMISSED *** Small claims for stabling fees

[jaguarsuk]

Perfect

I've amended post #57 with the change

[Stopbox]

So, do I now type this up and wait to see if I get a response from the claimant regarding the documents?

[jaguarsuk]

So, do I now type this up and wait to see if I get a response from the claimant regarding the documents?

You need to wait and see if you get a response, also give others here a chance to look at this and add their input.

Next will come your counterclaim as it will all go back together. You have plenty of time yet.

[Stopbox]

Thank you

[jaguarsuk]

No problem.

Once they respond, post a copy of the letter here and don’t go straight back to them. I’m sure they’ll say they don’t have what you want or come up with some other excuse and then go on to say you should settle, you’re gonna get a CCJ blah blah blah.

They have issued a claim against you, so the time for letter Tennis has ended.

[R0b]

Morning,

Sorry I did not get round to posting something, I had a few things crop up yesterday! I can see there might have been some further updates so I apologise but building on Jaguar's original draft defence, here is how I might look to set it out.

I should point out that this draft needs a fair bit of polish and refinement as it was a very quick draft based on what I've read. There may be some repetitions, typos etc. but I thought I would get something out on here for you to work on as an example. I've also put certain things in brackets which either need revising or amending depending on how the final defence and counterclaim is finalised.

I will try to add further comments to any subsequent drafts but it's something which should get you started. There's plenty of time to file your defence so don't try to rush it and file it at court because if you missed something out, as already suggested you will have to pay £255 to amend it.

Also I've attached a word version of the Defence which is how you will need to set it out when you send it to court and the Claimant. Anyway feel free to tear it apart.

----------------------------
DEFENCE
---------------------------

1. In this Defence:

a. any allegation which is not admitted by the Defendant, the Claimant is required to prove;

b. all allegations that are not specifically pleaded to by the Defendant are denied; and

c. entirely without prejudice to the foregoing, the Defendant denies each and every allegation in the Particulars of Claim.

2. References to paragraph numbers [and Counterclaim] shall be construed as references to the corresponding paragraphs set out in the Particulars of Claim.

3. This Claim is concerned with an oral agreement made on or about [DATE] in which the Claimant agreed to stable the Defendant’s horses in return for a weekly sum.

4. As to Paragraph 1:

a. It is admitted that [NAME] made inquiries on behalf of the Defendant as to whether the Claimant would be prepared to stable the Defendant’s horses.

b. It is denied that the Claimant and the Defendant were close friends. The Defendant would only see the Claimant occasionally on the premises and when she handed over cash payments to the Claimant.

5. As to Paragraph 2:

a. It is admitted that the Defendant asked the Claimant to stable her horses as already stated in Paragraph 3a of this Defence. It is further admitted that the stable was capable of stabling four horses.

b. It is denied that the Defendant asked the Claimant to be the sole user of the stables. Without prejudice to the foregoing denial, at the time of making the request to the Claimant, the Defendant was in possession of three horses that required stabling. The Claimant specifically requested that the Defendant be the sole user of the stable as she did not wish for there to be numerous livery owners on her premises. The Defendant therefore agreed to take on a fourth horse as a companion to the other three horses.

c. It is admitted and averred that the Defendant agreed to pay the Claimant £100 per week which was calculated on stabling four horses at a cost of £25 per week.

6. Paragraph 3 is admitted save that the Defendant does not admit the Claimant’s record that the agreement began on 27 January 2017.

7. Paragraph 4 is denied in its entirety. Without prejudice to the foregoing denial:

a. The Defendant did not create or otherwise build an additional stable on the Claimant’s premises as alleged or at all. It is averred that [NEIGHBOUR’S NAME] stabled a pony on the Claimant’s premises and which the Claimant was fully aware.

b. It is averred that the [NAME] paid the Claimant £25 per week for the said pony until it was sold in or around [MONTH-YEAR]. The Defendant will rely on numerous messages exchanged between the Defendant and [NAME] between June 2012 and September 2013 and a statement from [NAME’s] husband in support.

8. [PARAGRAPH 5 IS NOT CLEAR FROM YOUR TABLE OF INFORMATION. YOU SAID THAT YOU ONLY HAD TWO HORSES BUT WHEN DID THEY DIE? ARE YOU SUGGESTING THE ARRANGEMENT WAS REVISED TO PAY ONLY FOR TWO HORSES AFTER 6/7/17?? WHAT HAPPENED BETWEEN NOVEMBER 2016 AND 6 JULY 2017?]

9. Paragraph 6 is also denied and the Defendant repeats paragraph 7 of this Defence. Further, the Defendant advanced to the Claimant a sum of £1,200 on 6 June 2017 and an additional sum of £1,000 on 23 September 2017 totalling £4,200. The said sums covered the period of time from [MONTH] to [MONTH] (inclusive).

10. Save that the Defendant admits she vacated the stable on 9 December 2017, it is denied, insofar as it is alleged, that the Defendant was under any obligation to give any period of notice to the Claimant. Further:

a. Due to the threatening and abusive conduct of the Claimant as described in Paragraph [NUMBER] of this Defence, the Defendant felt that she had no choice but to remove her horses from the Claimant’s stables with immediate effect.

b. The Claimant therefore knew, or ought to have known that, by removing the horses from the stable, the agreement was no longer in place and therefore terminated.

c. If, which is denied, the Defendant was required to give the Claimant notice of termination, it is averred that one weeks’ notice would have been reasonable in the circumstances.

11. As to Paragraph 9, the Defendant denies the Claimant’s version of events in its entirety. Without prejudice to the foregoing denial:

a. On or about 20 December 2017 the Claimant, uninvited and unbeknown to the Defendant, entered the Defendant’s place of work, falsely informed staff that she had permission to access the back offices and confronted the Defendant. The Claimant’s conduct was aggressive and threatening in that she:

i. Shouted at the Defendant to enable herself to be heard by other employees despite the Defendant asking the Claimant to leave;

ii. Demanded that the Defendant sign a note which stated that she owed the Claimant £3,800 and agrees to repay the said sum of monies by instalments of £600 per month; and

iii. Left a voicemail on the Defendant’s mobile phone issuing further threats if the Defendant does not pay.

b. Feeling embarrassed and intimidated by the Claimant’s conduct and in order to make the Claimant leave the premises, the Defendant signed the note. Following this, the Defendant reported the Claimant to the police.

c. Further, the Defendant will place reliance on statements signed by several employees as to the true events which occurred that day.

d. In light of the aforementioned, it is averred that the note signed by the Defendant is invalid and the Claimant is not entitled to enforce the sum of £3,800 as alleged or at all.

12. Paragraph 10 is denied. The Defendant repeats Paragraph 10 of this Defence.

13. [DISCUSS PARAGRAPH 11]

14. In the premises the Defendant denies that the Claimant is entitled to the relief claimed in the Particulars of Claim or to any relief.

COUNTERCLAIM

15. The Defendant repeats her Defence herein.
Harassment
16. The Claimant has pursued a course of conduct which amounts to harassment.

PARTICULARS

a. The Claimant visited the Defendant’s place of work on 20 December 2017, becoming abusive and demanding money. This caused the Defendant great embarrassment and discomfort.

b. The Claimant pursued the Defendant demanding various sums of money knowing that such sums are not owed.

c. The Claimant caused further harassment to the Defendant by making silent calls to the Defendant’s husband’s mobile phone.

d. The Claimant left a voicemail on the Defendant’s mobile phone threatening to [INSERT DETAILS] if the Defendant did not pay up.

17. As a result of the matters referred to in this Defence, the Claimant’s conduct amounts to harassment of the Defendant, contrary to Sections 1 and 3 of the Protection from Harassment Act 1997, as the Claimant has at all times known or ought to have known that her conduct amounted to harassment. Accordingly, the Claimant has caused the Defendant distress and anxiety.

Undue Influence

18. The Defendant accepts she signed a note confirming that she owes the Claimant the sum of £3,800, and that the said sum will be paid by way of instalments of £600 per month.

19. It is averred that the Defendant’s signature was procured by the undue influence of the Claimant. The particulars of the said undue influence are repeated in [Paragraph 10] of this Defence.

20. For the reasons set out in the foregoing paragraph, the Defendant claims that the alleged debt of £3,800 owing to the Claimant be set aside and/or rescinded.

Restitution for money had and received

21. [DISCUSS OVERPAYMENT OF SUMS COVERING UP TO JANUARY BRIEFLY OR REFER TO PARAGRAPHS IN DEFENCE]

22. By reason of the matters set out above, the Defendant has been overpaid and the Claimant claims from the Defendant the sum of [AMOUNT] as money had and received .

23. Further, the Defendant claims interest pursuant to Section 69 of the County Courts Act 1984 at such rate and for such period as the Court in its discretion sees fit.

AND THE DEFENDANT COUNTERCLAIMS:

(1) damages for harassment limited to the sum of [AMOUNT];

(2) an order that the note signed by the Defendant agreeing to repay the Claimant the sum of £3,800 be set aside having been procured by undue influence. Alternatively, a declaration that the said sum is not enforceable;

(2) the sum of [AMOUNT] as over-payment to the Claimant;

(3) interest; and

(4) costs.

[Stopbox]

With reference to paragraph 8.

The first horse to die was on 17/10/2015 and the 2nd horse died on 4/2/2016. I wasn’t worried too much about paying £400 from that point onwards as the intention was to purchase another horse so that I could ride it (my 2 remaining horses are retired due to age and arthritis).

I did go to see a horse around July 2016 but it wasn’t right, then by Sept 2016 everything went wrong, my Mum became very seriously ill and I had to look after her and I didn’t have time to do anything or see anyone, so I just kept paying as it was easier. Then Mum died in Jan 2017 and I had to deal with a lot of issues with family members. I then lost 3 family members/friends in one weekend at the beginning of March 2017 (which included the said neighbour in the particulars) I was hit pretty hard by grief between losing Mum and friends + family members in such a short period of time.

I then had to pick up the pieces and help my daughter organise her wedding for June 2017. I then started to become really ill myself and had a cancer scare, I realised That I should have sorted the payments out sooner or that the claimant should have come and sorted them, anyway when I went to see her in July I suggested the lower payments or that I could leave and go elsewhere. She suggested I take on retired horses so that I’d get paid for them, to which I pointed out I had too much on and I was too ill to take on more horses. She didn’t want me to leave so agreed to £200 payments.

Paragraph 6 I’m a bit confused as the agreement did start on 27/1/2017? Is it because I haven’t got the written payment schedule yet?

and in Particulars - I also have an email sent to my husband on 3/1/18 from the claimant stating

“that I’ve signed an agreement to pay 600 pounds per calendar month starting on 1st January 2018 until the outstanding debt of £4,600 had been paid. This original figure was based on her staying until the end of January 2018, but as she decided to leave during December, then the month of January can be deducted from this figure”

when end my husband asked for evidence of this agreement she then sent us the photo of the note which contradicts the figure she states in her email.

[Stopbox]

and should the mention of the loan agreement be included in the defence as suggested by JaguarsUK -

1. This claim appears to be for a verbal agreement regarding livery fees for a stable, but the Claimant claims a sum based on a loan agreement.
2. It is denied that the Defendant has previously entered into any agreement with Claimant for provision of credit.
3. The Claimants statement of case fails to give adequate information to enable me to properly assess my position with regards the claim.
4. The Claimant’s Particulars of Claim fail to state when the loan agreement was entered into.
5. On the [Date] I sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to [Claimant’s Solicitor Name]. I requested the Claimant provide copies of the loan agreement and record of agreement.

[R0b]

Evening,

Thank you for the clarification. So in July you both agreed to pay £200 to stay on, that needs to go in as part of the defence.

In terms of paragraph 6, if you accept the agreement was entered into on that date, then you can admit the claim as far as the date goes, but leave it up to the claimant to prove any written documents.

The email to your husband can be used as part of your witness statement as evidence to show that she is plucking figures left right and centre which are neither accurate not justified.

To answer your other questions:

1 & 2. Yes I haven't mentioned the part about the loan agreement but that should be included though I wouldn't suggest that the claim relates to a loan agreement. I would simply suggest you deny that a loan agreement was entered into and repeat what was mentioned in the previous paragraph in that the agreement was made orally but was certainly not a loan agreement - your advance payments would indicate that there was no loan, and what exactly was she loaning you?

3. I don't think you can say that the particulars don't give adequate information to provide a defence. Granted the claimant hasn't expanded on things but I think you have enough information about the claim and also that you are fully aware of what the claim is about.

4. I would keep the loan agreement under one paragraph as per 1 & 2.

5. I don't think adds anything to the defence.

If I have time tomorrow, I will see if I can add anything, improve my draft based on the above.

[jaguarsuk]

Evening,

Thank you for the clarification. So in July you both agreed to pay £200 to stay on, that needs to go in as part of the defence.

In terms of paragraph 6, if you accept the agreement was entered into on that date, then you can admit the claim as far as the date goes, but leave it up to the claimant to prove any written documents.

The email to your husband can be used as part of your witness statement as evidence to show that she is plucking figures left right and centre which are neither accurate not justified.

To answer your other questions:

1 & 2. Yes I haven't mentioned the part about the loan agreement but that should be included though I wouldn't suggest that the claim relates to a loan agreement. I would simply suggest you deny that a loan agreement was entered into and repeat what was mentioned in the previous paragraph in that the agreement was made orally but was certainly not a loan agreement - your advance payments would indicate that there was no loan, and what exactly was she loaning you?

3. I don't think you can say that the particulars don't give adequate information to provide a defence. Granted the claimant hasn't expanded on things but I think you have enough information about the claim and also that you are fully aware of what the claim is about.

4. I would keep the loan agreement under one paragraph as per 1 & 2.

5. I don't think adds anything to the defence.

If I have time tomorrow, I will see if I can add anything, improve my draft based on the above.

With regards 5 I would say that as the Claimant asserts a written record of agreement exists and that Defendant has asked it be produced then. I'd say it's a pretty important point to challenge, plus having requested a copy of it via the part 31.14 and then by stating that the Claimant can't provide it that would be very useful to dent their credibility.

Further I really don't think the Defendant can argue the agreement was £25 per week per horse. She is going to have to present the accounts she has uploaded to the thread to demonstrate making payments to the Claimant along with bank statements with her Witness Statement, in which she pays £400 per month until July 2017 and then only amends her accounts at the date she renegotiated the deal with the Claimant.

If I was counsel for the Claimant I'd be focusing on this to prove the agreement was actually for the whole of the space and simply be asking:

Why do your own accounts show liability for £400 monthly (£100 per week) right until July 2017?

Why if the agreement was as you stated £25 per horse per week did you continue to pay £100 per week after the death of one horse and the subsequent death of the other?

Why if you believed you were only liable at £25 per week per horse having paid £2,000 on 17/12/2016 did you not refute the request for payment by the Claimant in July 2017, but instead accept further money to be due and agree to visit the Claimant to pay it?

I believe the Defendants own accounting shoots her in the foot and it looks like flat payment for the whole space, on the balance of probabilities if the Claimants Solicitor asks those sort of questions in court I think a judge would favour them without some pretty compelling evidence to refute the suggestion. That could dent her (the Defendants) credibility.

It opens a can of worms and if on the other side I'd then use that to dispute the accuracy of the whole accounting and assert the payments weren't made, but actually the sums withdrawn from the bank could have paid for anything. I'd build on the fact the Defendant claims different terms than she accounts for and that there was a termination terms as part of the agreement, the Defendants suggestion of terms has been shown already to be vastly different to the reality she herself accounts for and that a termination should have been paid.

This claim will be decided on credibility with Defendant needing to show herself to be calm, meticulous and honest while the Claimant being portrayed as aggressive, erratic and harassing.

It's why i would also plead as follows to the Claimants paragraph 11

Paragraph 11 is admitted, the Claimants solicitor wrote to the Defendant claiming that she was liable for three different sums of money. The Defendant denies owing the Claimant those sums of money, the sum alleged in the Particulars of Claim or at all.

It shows the Claimant doesn't have a clue and paints the picture of a chancer trying it on, which can be alluded to in the Witness Statment.

I could be wrong and obviously this isn't mine to defend, but I personally would be happy with the close to £300 for over payment, damages for the possessions she damaged and compensation for harassment. Personally I'd let the argument of the per horse payment go in favour of the overall objective, but it isn't my money and therefore you should pursue the argument you feel is right for you Stopbox.

[R0b]

With regards 5 I would say that as the Claimant asserts a written record of agreement exists having requested it, the part 31.14 is applicable and also stating that the Claimant can't provide it will dent their credibility.

I understand why you might add it in, but I personally don't see that it adds anything at this stage and would suggest this is raised in the witness statement if they haven't complied and therefore suggest a costs sanction might be appropriate for failing to comply or something to that effect. I don't think the written record that it began is that important unless it has signatures on there since it is already admitted that the agreement started on that date. I did caveat that admission by not admitting the written record and if you go back to paragraph 1a. I said that any non-admissions made then requires the claimant to prove.

Further I really don't think the Defendant can argue the agreement was £25 per week per house.

Doesn't her post #68 offer a reasonable explanation? She continued paying the £400 on the assumption that she would get another two horses. Obviously that didn't come to fruition because of the reasons she mentioned and I am sure a judge would understand that given the circumstances, reducing payments was probably not the highest priority on her list at the time.

The fact that her own accounting shows £400 payments doesn't automatically imply that it was on a per week basis irrespective of the number of horses. At the same time, if records also show a reduction in payments from £400 to £200 and there is only two horses in the stable then a judge may infer from that the agreement was per horse, per week and then eventually revised down in July. I'm not an expert on renting stables but if it is common practice in this area that stables are rented on a per horse basis and Stopbox can provide some kind of evidence to this effect, that might also assist her in proving the agreement was on a per horse basis.

In relation to Paragraph 11 I only see two references to different sums being owed with the third one being the £3,800 that was alleged agreed to repay, presumably as a form of settlement. I don't take issue with incorporating your paragraph 11 but perhaps consider expanding on it.

Like I said when I posted, it was a very quick draft based on the table of information and could be refined to ensure that it is robust and limit any gaps for attack. We are only able to provide Stopbox with suggestions but ultimately it is her decision as to what she submits.

[jaguarsuk]

I understand why you might add it in, but I personally don't see that it adds anything at this stage and would suggest this is raised in the witness statement if they haven't complied and therefore suggest a costs sanction might be appropriate for failing to comply or something to that effect. I don't think the written record that it began is that important unless it has signatures on there since it is already admitted that the agreement started on that date. I did caveat that admission by not admitting the written record and if you go back to paragraph 1a. I said that any non-admissions made then requires the claimant to prove.

I suppose it's a case of "Horses for Courses" (pun very much intended) of how you go about it, but as long as there's a challenge of the record I don't suppose it matters. In honesty with the amount of times the claimant has changed the figures, even if there had been a written agreement I don't think she'd be able to provide a copy of it.

Doesn't her post #68 offer a reasonable explanation? She continued paying the £400 on the assumption that she would get another two horses. Obviously that didn't come to fruition because of the reasons she mentioned and I am sure a judge would understand that given the circumstances, reducing payments was probably not the highest priority on her list at the time.

The fact that her own accounting shows £400 payments doesn't automatically imply that it was on a per week basis irrespective of the number of horses. At the same time, if records also show a reduction in payments from £400 to £200 and there is only two horses in the stable then a judge may infer from that the agreement was per horse, per week and then eventually revised down in July. I'm not an expert on renting stables but if it is common practice in this area that stables are rented on a per horse basis and Stopbox can provide some kind of evidence to this effect, that might also assist her in proving the agreement was on a per horse basis.

Apologies I missed the post #67, yes with that sort of back up in the Witness Statement I don't see why she couldn't argue that as I don't think you, I or a judge would have prioritised this over those matters.

In relation to Paragraph 11 I only see two references to different sums being owed with the third one being the £3,800 that was alleged agreed to repay, presumably as a form of settlement. I don't take issue with incorporating your paragraph 11 but perhaps consider expanding on it.

Like I said when I posted, it was a very quick draft based on the table of information and could be refined to ensure that it is robust and limit any gaps for attack. We are only able to provide Stopbox with suggestions but ultimately it is her decision as to what she submits.

Along with the email to her Husband and then the note, the fact the Solicitor claims differing amount from the first letter to the final letter paints a picture of someone who doesn't have a clue and is clutching at straws.

[Stopbox]

And in the solicitors first letter (June/July 2017 - end December 2017) his time period is completely different to his 3rd letter requesting payment (November 2016 - end December 2017). Then in the particulars of claim the claimant states that she didn’t know the full extent of the debt until her return from holiday. Yet she was in my office in December (prior to her holiday) demanding monies of £3,800, then talking to my husband the same day demanding £6,000. Then obviously her email alledges a different amount and implies that I owe £4,200.

But also, in the solicitors first and third letter they are adamant that I attended a meeting at the claimants house on 14/12/17. I was never there and can account for my entire day.

now you can see why I’m so confused with this claim.

[Stopbox]

This is what I’ve found out about Grazing Agreements, none of which were in place at the farm and I have not signed any type of contract in relation to them.

sorry couldn’t upload so easier to type instead

”Allowing horse owners to graze their animals on your land is one way of securing an income on under utilised pasture. Although many such arrangements are organised on a casual basis, it is worth considering whether a more formal approach could be more appropriat, not least to ensure that you do not inadvertently give rise to a tenancy which will affect your control over the land and prevent you from claiming BPS. There are five principal agreements governing horse grazing arrangements: a grazing licence; a common law tenancy; a business tenancy (under the Landlord & Tenant Act); a farm business tenancy (FBT); and a ‘profit a ponder.’

Grazing Licence

a licence allows a horse owner to graze their animals for a short period. It does not confer any rights over the land and you, as the landowner, remain in occupation. This means that you can continue to claim BPS on the land as well as retaining certain tax advantages (for instance a grazing fee counts as trade income rather than property income, ebabling you to set more costs against a grazing fee than against rental income).

traditionally grazing licences were used from April to October as a way of keeping the grass cropped; these days they can be renewed on a regular basis so that the licence applies all year round - although it is worth inserting a clause stating that renewal is not automatic. A licence must not carry any obligations, such as repair to fences or hedges, otherwise it will be in danger of taking on the characteristics of a tenancy.

common law tenancy

a common law tenancy covers the exclusive occupation of grazing land for horses used solely for recreational purposes. Such an agreement will outline any rights that accrue, for instance in relation to access, as well as specifying any restrictions; for instance, grazing land must not be used for exercising or training horses (such activity will evoke a business tenancy). It will also confer certain obligations on the tenant, such as requiring the proper maintenance of the fencing, removal of droppings, and notifying the landlord of the encroachment of noxious weeds such as ragwort.

A Landlord & Tenant Act business tenancy (LTA)

if the tenant ant wants to locate any part of their business on your land (which includes training and schooling), and the grazing thus becomes incidental to that business, you can grant a business tenancy. However, you should explicitly contract out Part II of the LTA, to avoid creating security of tenure which is particularly important if the land hasn’t development potential or if you are likely to want to repossess the land for your own purposes.

Farm Business Tenancy (FBT)

an FBT can, in limited circumstances, be used for grazing agreements for horses which may be part of a wider commercial operation (such as a livery yard or riding school) but great caution should be exercised. An FBT can only be used where the main activity on the land is agricultural. Although grazing is considered agricultural, ancillary equestrian activities are not. Therefore an FBT would only be valid if the grazing is completely separate from the land on which the yard and facilities are sited. Therefore if you agree to an FBT, you will need to be vigilant: if you allow any non-agricultural activities to take place on the grazing area (and that could be someth8ng as simple as a couple of show jumping poles or dressage arena markers) that will negate FBT and give rise to a business tenancy. Generally speaking, we do not advise the use of an FBT for grazing horses but each situation will depend on its individual merits.

nonetheless, there are advantages, namely that an FBT not confer renewal rights, security of tenure or succession rights and, for a rental term of two years or less, the agreement will simply expire on completion of the term with no requirement to issue a notice to quit. However, it does give the tenant exclusive possession of the land so you would not be able to claim BPS or various tax advantages (including APR). It is also worth noting that, under an FBT, tenants who make improvements to the land are, subject to conditions, entitled to compensation from the Landlord.

Profit a Pendre

last, but not least, this less commonly used agreement allows someone to take something (in this case grass) from another’s land. You, 5e landowner, retain occupancy of the land but, in return for s fee, you allow another person to graze their horses on what is essentially your crop of grass. Similar principles to grazing licences apply although there are more obligations on the Landlord to ensure that 5e crop of grass remains in good condition.”

this is from Wright Hassall

[Stopbox]

I have received letter from my vets, stating when 2 of my horses died and how many horses were left and that there were only 2 horses at the farm from that date onwards.