Lynnzer - Patient Direct Court Claim

[Lynnzer]

Well, things have "progressed" somewhat.
A series of demands from them, and rejections by us were made. A couple of telephone calls were made by them and several Proforma Invoices were sent, some of which were returned rejecting them.
We have now had a claim lodged in court for an amount of a bit over £10k which puts it on a different track. The claim has been submitted by Multimedia International Services Ltd.
The Statement of Claim says"There is a Business to Business contract in place with the defendant. They are insisting they do not have a contract with us due to the company being non existent. I have done checks this company was incorporated on 27th March 2003, they are still trading today. It is a Limited Company with 2 Company Directors The contract was signed on the 24th May 2017. The defendant paid a deposit by way of credit card. No monies further have been received and services are being provided. We have tried to resolve this matter to no avail. This contract is with one of our companies T/A Patient Direct. They are insisting they do not have a contract with us and yet we have card details for a deposit and bank details for a direct debit mandate."
The amount claimed is itemised as £9949.20 plus court fee of £410, totalling £10359.20
I have drafted a Statement of Case/Skeleton Argument which I need comments on. There hasn't been any court allocation yet so there's time to redraft everything to suit.
I am presenting this to the court, redacted somewhat on this forum but the overall content is exactly the same. I would appreiate feedback please
Here goes:
"

In the case of Multimedia International Services Ltd (Claimant)
v
************ (respondent)

In (insert court and claim number)

Day and date
RESPONDENTS STATEMENT OF CASE
Date
Introductory
This is a Statement of Case and Skeleton Argument by the Respondent, ********* Ltd, which lays the foundation for the Court to STRIKE OUT A STATEMENT OF CASE under CPR Rule 3 prior to any court appearance.
On the 24^th of May 2017 Mr Nick Slade, an Agent of Patient Direct, made an unannounced visit to the trading premises of ********** Ltd. Mr Slade set out a proposal for advertising at certain health centres/hospitals. The Respondent's representative. Mrs ******** was given details of how the advertising would assist in promoting the business.
Mrs ******* was under pressure at that time as the shop was extremely busy and all advertising is authorised and handled by the Company Secretary, Mr ********. Any agreement needed prior approval from Mr ******* so a telephone call was made by Mrs ******* who passed the phone to Mr Slade to speak with Mr *******
Mr ******* made enquiries as to the advertising basis and costs and informed Mr Slade that he would need to see a copy of the Contractual details in order to agree terms. He was given assurances that a copy would be available and that no Agreement would be effective until such approval had been given.
Mr Slade then told Mrs ******* of this and on that assertion he passed the Agreement to Mrs ******* for signature. A deposit was made which was stated to be refundable in the event that Mr ******* did not accept the contract.
At no time did Mrs ******* see, or was pointed to the back page of the Agreement. To all intents and purposes it was a single sided document, as Mr Slade had it in his possession until such time as it was handed over for signature, on the agreed basis that if it did not meet the satisfaction of Mr ******* it would be cancelled and any deposit refunded. The signature box being on the front of the document gave sufficient reason to believe that it was a single sided document.
In such circumstances, the necessity for Mrs ******* to read the Terms and Conditions even if they had been brought to her attention, was irrelevant since it was Mr ******* who had been accepted as being the final arbitor upon having read the full contractual details.
At the end of shift, Mrs ******* looked for the copy of the Agreement but none had been left. The only thing that Mr Slade left was a business card which failed to meet lawful requirements for such things. The only contact detail was a telephone number of Mr Slade. It had no other contact details except for an email address, and in fact a search for the specific telephone number showed it as being “tagged” to someone else at an address in Wales. Calling that number elicited a response that the recipient was on holiday.
Suspicions were raised. A couple of emails were sent to the address shown on the business card. They went unanswered. In such circumstances it was decided to find out as much as possible about Patient Direct. The findings included other apparently associated businesses within the M.I.S. Group which is claimed to be one under which M.I.S Ltd operates, some of which had been declared insolvent and/or showing the Chairman apparently variously living in Grand Cayman, Thailand and in the UK. Another associated company was found which showed it had been fined 230,000 dollars in Australia for its nefarious business activity thus casting doubt as to the ongoing solvency of the business or the likelihood of it fulfilling the contract.
That doubt was enhanced as that particular company was also declared insolvent very shortly afterwards. Some insolvent past associated companies within the UK which had been part of the group with common directors had unsatisfied financial charges registered against them.
A trail of these companies and directors associated with them is to be presented to court in a full submission but the Respondent believes there was sufficient evidence for considerable doubt on the efficacy of Patient Direct.
The numerous insolvencies and company closures associated with the Group was cause to suspect that insolvency or the threat of insolvency was real. Such circumstances give rise to a legitimate cause for termination of contract under the proviso of “insolvency and/or the threat of insolvency by a contracting party”.
The notice to cancel was sent by email to the address as shown on the business card and a trail of correspondence followed, variously setting out our concerns which remained largely ignored, and a denial of our right to cancel.
Latterly, and after some considerable time since the date of the visit by Mr Slade, we were sent a copy of the Agreement, which had terms and conditions on the reverse that would have been rejected out of hand if they had been known about. Since Mr Slade agreed cancellation if authority was not given by Mr ******* it is clear that there had been no intention to follow this up as the Terms and Conditions were so detrimental as to be an open ended agreement for Patient Direct to do whatever it felt like doing with no legal consequence attached. The Agreement would not have been accepted by Mr *******
Since early notification was made of cancellation and the Claimants continued processing of the advertising against the advice given by the Respondent that it was not agreed, it is held that the Claimant failed to mitigate any loss.
The Respondent sets out the defence as follows:

1. False Instrument.
   1. The Claimant altered the signature of the Respondent's representative thus effectively creating a False Instrument. The Claimant will produce evidence obtained from Patient Direct themselves, of the falsification of signature. Use of a False Instrument would be an Abuse of the Court and/or be subject to the provisions of ex turpi causa.
2. Lack of Privity.
   1. The Claimant has taken action against the Respondent on the basis of it being a company which it has never claimed to be, and with an address for service which is not the address as shown on the Agreement
   2. The Claimant is bringing the action as a party not subject to the Agreement. A copy of the front page of the Agreement will be produced to show that the Agreement was between xxxxxxxxxxxxxxxxxFashions and Patient Direct. The claim is being made against xxxxxxxxxxxxxxxxxx Fashions Limited which is an entirely different entity, and undertaken by Multimedia International Services Ltd instead of Patient Direct.
   3. Erroneous completion of the Agreement by Mr Slade was a matter of lack of care and the Respondent claims that the Claimant should not benefit from the use of erroneous information made in haste so as to formalise a contract not given the approval he needed.
3. Lack of disclosure.
   1. The respondent will bring Witness Statements to show that Mr Slade did not mention, nor pass on the copy of the Agreement for inspection of the Terms and Conditions on the reverse. Mr Slade made representations based only the matters shown on the front of the Agreement. To all intents and purposes this was a single sided document as no attention was drawn to the reverse.
   2. Said Witness Statements will also confirm that no copy of the Agreement had been left.
4. Unspecified nature of claim.
   1. The Claimant's Particulars of Claim fails to set out the legal position they are taking in regard to the claim. The claimant has provided no explanation as to how the amount claimed has been calculated or under what conditions it has set that amount. Differences of the way any possible settlement are to be treated rely on the definition of the claim and cannot be generic in nature.
5. Amount of the claim.
   1. The Claimant has an obligation to mitigate loss. The Respondent can demonstrably show that the Claimant failed to do so and allowed the situation to deteriorate.
   2. The Claimant has failed to provide a Schedule of Loss thus cannot show if the stated amount has any merit.
6. Enrichment.
   1. The Respondent makes a case that a claim beyond any costs incurred up to the point of the Claimant being given notice of cancellation would be an undue enrichment.
   2. Full payment of the claimed amount would carry an enrichment factor since it would place the Claimant in a situation where the claimed amount included payment to the Agent for his commission and to the advertising premises owners who would normally receive a percentage of the advertising payments.
   3. The amount claimed is likely to be a VATable figure. Penalty or compensation awards do not fall within the scope of VAT as no service was provided for such payment. See Financial & General Print Ltd(VTD 13795) v HMRC
   4. The amount claimed is probably (since no calculation has been shown) inclusive of the annual administration charge which would not be incurred.
7. Conflict and uncertainty of Contractual terms
   1. The Respondent will show uncertainty of contractual periods within the Agreement's Terms. Such uncertainly is by use of 2 periods upon which the Claimant depends for the operation of the contract. Ie, Initial Contract Period, and Broadcasting Period.
   2. The “Broadcasting Period” has no particular period allocated to it. The commencement is entirely at the whim of the Claimant and may in fact never happen in the lifetime of the Respondent company. The ill defined Broadcasting Period may well be used as a reason to withhold “broadcasting” for many months or even ad-infinitum. There is no clarity of contractual periods thus a state of uncertainty exists since this is at odds with the Initial Contract Period.
8. Lack of financial clarity.
   1. A calculation is set out on the Agreement as to how payments will be taken which includes VAT, the Advertising Costs, an amount for an annual Administration Charge less a deposit shown on the Agreement and the resulting balance is to made by 12 equal monthly payments. The Respondent will claim relief from the Agreement based on such discrepancy.
      1. The deposit which was shown on the Agreement was £2808 but in fact £2008 was taken from the bank.
      2. The monthly payments advised thereafter were not calculated by reference to the means shown on the Agreement and have a difference in worked amounts of an extra £45.17 per month.
      3. The change of financial amounts should have been shown to the Respondent and agreement to them obtained. The Claimant failed in that duty.
   2. The Respondent will show 3 Proforma Invoices which set out payment amounts that do not reconcile with the calculated amount from the Agreement.
9. Lack of legally required VAT Receipt
   1. The Respondent will bring evidence that no VAT receipt was provided for the deposit paid. Such a receipt is a legal requirement.
   2. The Agreement states “If you require a VAT receipt a £2.00 charge will be applied per receipt. A VAT Registered company must by law issue a VAT invoice/receipt for transactions made with another VAT Registered company. This is to be without charge.
   3. The inclusion of such a charge for ongoing “receipts” adds another amount to the payments agreed and further falsifies the overall financial agreement. The Respondent asserts it must itself be able to provide a proper VAT invoice in order to offset the VAT portion. The Claimant is within a category of business which would not exempt the issue of VAT invoices/receipts.
   4. VAT cannot be reclaimed on a Proforma invoice. No invoice has ever been received from the Claimant. Only a series of Proforma Invoices were received, some of which were returned marked that the contracted party was not the same identity, or that the contract had been cancelled. In essence, a Proforma invoice has no fiscal value, and unable to be used for accounting purposes as it lacks substance and fails to meet the HMRC requirements for invoices.
10. Failure of the Claimant to provide timely service
    1. The Respondent will show that service was not provided in a timely manner. It will show that in-between the unauthorised commencement of the Initial Contract Period and subsequent cancellation advices, that emails from the Claimant were received stating some sort of delay therefore giving a reasonable suspicion of some sort of illegitimate operation being carried out.
11. Misrepresentation
    1. The Respondent avers that a string of misrepresentations took place by Mr Slade in his dealings. These were variously making promises which were not fulfilled.
       1. Mr Slade assured Mr xxxxxxxxxxxby telephone that he would be able to see the documentation and if it was not to his satisfaction the contract would be cancelled. It is averred that no copy of the contract was even left for Mr ******* to see thus denying the fulfilment of that promise.
       2. Mr Slade gave assurances that in the event of the contract not being accepted by Mr ******* upon his reading of the contractual terms, that any deposit would be refunded. Mr Slade asked for the deposit payment at the point of sale based on that precondition, and so as to mitigate the need for a second visit in order to take payment. This was a promise to do something which by reason of his taking away all copies of the Agreement Mr Slade knew, or should have known could not be fulfilled.
       3. Mr Slade told Mrs ******* that a deposit payment would prevent any competitor from advertising at any location where the advertising was to be done, ie. asserting that monopoly rights would prevail. In the Agreement it can be seen that the wording “No monopoly rights granted” exist on the Agreement thus contributing to a misrepresentation.
       4. The Respondent was assured that the construction of the planned advertisement would be by mutual cooperation and agreement using pictures and wording thought to be acceptable to the Respondent. That promise failed to happen. It is a fact that the use of supplier photographs for advertising purposes often need prior consent to prevent breach of copyright.
    2. Misrepresentations give a court cause to strike out a claim. The Respondent seeks such relief.
12. The Respondent will present a trail of emails that show variously the Respondent's cancellation, objections to any continuance of the alleged contract and rebuttal of responsibility for ongoing costs resulting from a lack of mitigation. The effect of such will point to the Claimant demonstrably taking no steps to mitigate loss and allowing the situation to deteriorate.
13. The Respondent will show a list of the members of the MIS Group, both active and closed for one reason or another, which will evidence doubt as to the integrity and ongoing financial solvency of the Claimant. The effect of that will serve as cause for concern on insolvency or potential insolvency or lack of ability to fulfil the “Initial Contract Period” thus invoking a reasonable cause for rejection of the contract.
14. The Claimant will provide details of another member of the Group being fined a sum amounting to around £130,000 in Australia and the subsequent early collapse of the company thus casting doubt as to the integrity of other members of the group which share the same directors and Chairman. The Respondent makes a reasonable assumption that this was a Phoenix sort of situation where a company closes to avoid payment of debts and could well be employed by any other Group member.

The Respondent reserves the right to add further considerations to a full defence once it has received any rebuttal from the claimant.
I believe that the facts stated in this STATEMENT OF CASE dated (insert) are true.
Signed

[Amethyst]

Have you filed a defence in the case?

( Their particulars of claim are woeful )

[Lynnzer]

Have you filed a defence in the case?

( Their particulars of claim are woeful )

I've logged onto MCOL and acknowledged the claim so far, 7 days ago.
I believe I have 28 days to submit a defence but could I submit my case above as a Statement of Case/Skeleton Defence, then do a full defence after receiving any rebuttal from them?

Would my case above be sufficient for a Defense or do I need to enlarge on it to include other things, and when should I send things out to the court etc. None has been allocated yet anyway

[Amethyst]

Okay cool. Let's go through it and sort it out to a Defence more than a Witness Statement then, responding to their claim

This is their full particulars ?

There is a Business to Business contract in place with the defendant.

They are insisting they do not have a contract with us due to the company being non existent. I have done checks this company was incorporated on 27th March 2003, they are still trading today.

It is a Limited Company with 2 Company Directors The contract was signed on the 24th May 2017.

The defendant paid a deposit by way of credit card

. No monies further have been received and services are being provided.

We have tried to resolve this matter to no avail. This contract is with one of our companies T/A Patient Direct.

They are insisting they do not have a contract with us and yet we have card details for a deposit and bank details for a direct debit mandate."

[Lynnzer]

Okay cool. Let's go through it and sort it out to a Defence more than a Witness Statement then, responding to their claim

This is their full particulars ?

Yep, ,that's the full shebang.

[Amethyst]

Goodness me. I think that's a case of

The Defendant contends the Particulars of Claim are wholly misconceived and/or fail to disclose a real prospect of success. The Defendant therefore invites the Court to, of its own motion, strike out the claim under CPR 3.4.

lol....

anyway, the invoice / pro-forma they sent you - was that from Direct Digital ? actually before we do any more I think we should make you a thread in VIP to deal with this from here tbh - I'll sort that out... just in case there is any nosing about....

[Amethyst]

Okay done Would you be able to upload ( or email me ) the documents you have had so far from this berk pls. Suitably redacted ( even though we're in VIP it's best to keep your full name / the shop name etc off the forum ).

Contract
Pro-forma Invoices
Letters

Did you get a reply from the NHS trust that the adverts were meant to be appearing on their website?

[Lynnzer]

Okay done Would you be able to upload ( or email me ) the documents you have had so far from this berk pls. Suitably redacted ( even though we're in VIP it's best to keep your full name / the shop name etc off the forum ).

Contract
Pro-forma Invoices
Letters

Did you get a reply from the NHS trust that the adverts were meant to be appearing on their website?

Funny thing is my son was at one of the locations earlier this year, I think in April or early May and he saw one of the adverts. So they obviously ignored my telling them to cancel. I have an email trail showing these things. Oh, he wasn't tempted to rush to the shop to buy anything
My personal email address is sr81lw@gmail.com if you care to let me know yours.
I'll upload all the stuff I have for you.
Many thans
Lynn

[Amethyst]

Okay, so the adverts are showing ? Did you have any input into what the advert says / imagery etc?

Assume you saw this ( back in Jan ) https://www.mirror.co.uk/news/uk-new...arebar_twitter

Email -> admin@legalbeagles.info xxx

[Lynnzer]

We were subject to a fait accompli on the advertising. We had no-one call and ask for pictures, text or anything else.
We did get a link sometime later to copy they had produced asking for it to be viewed and approved. It was neither viewed or approved.There is wording on the email that the advert will automatically published if not approved or edited within 14 days. In response I told them that the advert was cancelled. I guess that could be taken that it was not approved.
Following that I got another email informing us of continuing delays in installation of the screens at the chosen locations. The email trail will show it in full.

I intend to visit each location and take details of all other advertisers and make contact with them I would bet my life that none of them will know of the full terms and conditions and suspect most of them will never have been presented with a copy of them either.
Uploads.
Contract.
Proforma Invoice, all the others are the same. Notice that there is no mention of Patient Direct on this.
email trail

[Lynnzer]

VAT receipt attached. Note that this was dated 30/5/17 well before "performance" of contracted service.but not actually received until 1st November.

[Lynnzer]

Business card. I doubt if Nick Slade is a Director. I would think that would be a title for someone in a Ltd C. and Patient Direct isn't found on Companies House, nor is Nick Slade. I also doubt if a Director of Corporate Accounts would be on the road as a salesman.
Looking at Directorships of the named company Multimedia International Services Ltd under which Patient Direct is supposed to be a trading name, shows no mention of Nick Slade either.
Misrepresentation again perhaps.

[Lynnzer]

Is anyone else in this forum?

Comments have been unforthcoming as of yet.

Visited one of the advertising sites today and the monitors in the 2 reception areas have never even switched on and the receptionists aren't aware of any advertising on them at all. No senior management in here though so I will need to find out who authorises them.

[Amethyst]

unapproved temporarily

[Lynnzer]

unapproved temporarily

I have a result in this case now Amethyst. We won by default, ie they didn't pay the court fee.
It wasn't as straightforward as that though so if you can reinstate the topic to the general forum I'll post a fully detailed account.