N1 received - Advice needed please!

[Enom]

Hello,

I need advice regarding a person who is claiming a debt is owed to them due to underpaid invoices. The first I was notified of the issue was 3rd July, they simply stated a debt was owed and to be paid in 7 days. The letter said despite previous reminders, however we had not received any letters previously. I responded advising every payment has been paid in full, and have not received any disputed/amended invoice complaint nor an invoice showing an outstanding payment from them and they are welcome to forward it on, this was sent on the 11th July. On the 14th July, they issued an MCOL claiming for amounts outstanding, plus interest and compensation. We have not had a response to our letter, the only response is this court claim form.

The agreement we had for the services rendered contained an arbitration clause, so realistically, I assume I can dispute based on jurisdiction? However, I do also strongly believe this claim has been sent at breach of pre-action protocol (CPR) because they hadn't provided sufficient time for a response before commencing action, they hadn't fully explained what their complaint is actually about (neither in their pre-action letter nor particulars of claim), they only sent a single letter regarding the issue with no description, and they did not respond to our letter requiring further information so we could investigate their problem before starting a claim. As such, they did not successfully attempt to resolve the issue before commencing court action.

So, I am unsure which route to go down, the arbitration clause, the breach of pre-action protocol, both, or neither and just request the claimant sends further information and dispute?

Thanks,

[ncf355]

Re: N1 received - Advice needed please!

You first need to make sure you acknowledge the claim so you are given a further 14 days to supply a defence (thus a total of 28 days from the date of issue)

It would appear they have breached CPR, but it's going to be easie for you to defend and attempt to insist on mediation via the courts mediation service (which all small claims have are supposed go through now, unless a good reason is given why)

I would also send a further recorded letter for information under CPR 18

Were the other letters ent via recorded post?

[enquirer]

Re: N1 received - Advice needed please!

... they hadn't fully explained what their complaint is actually about (neither in their pre-action letter nor particulars of claim), they only sent a single letter regarding the issue with no description, and they did not respond to our letter requiring further information so we could investigate their problem before starting a claim. As such, they did not successfully attempt to resolve the issue before commencing court action.

The courts take an extremely dim view of claimants who issue a claim without significant prior correspondence aimed at settling the dispute. The fact that they haven't even managed to file a coherent claim will weigh very heavily against them.

If you can definately show that all invoices have been paid in full, then rather than messing about with arbitration, it would probably better to get stuck in - file a defence and then smash them in court.

Make sure you ask for costs, which will be at least £18 per hour, plus expenses.

A passing thought ... why are they so keen to get more money? Are they bust?

[Enom]

Re: N1 received - Advice needed please!

Thanks ncf355, I've gone ahead and submitted my AOS online - I read on the back of the claim form that the service date starts 5 days after the issue date of a claim. Therefore, to be sure I understand this correctly, I actually have 28+5 days from the Issue date on the claim form to put in a defence in full?

enquirer, I agree with what you say, and have just submitted the AOS without disputing jurisdiction now. I believe I now have up until 16th Aug to submit a defence against this person (if the above is correct). Should I first claim that CPR has not been followed by the claimant as I understand the court has various powers (including asking for costs) should they see a breach has occurred? If so, should I submit a defence just based on their breaches to start with as to advise the courts we can't defend ourselves when we haven't been given the opportunity to understand what we're actually defending? Or should we send a further letter to the claimant demanding further information and await for this and put in a full defence either 1 ignoring the CPR breaches or 2 referring to the breaches, as well as putting in a defence to anything they then send on?

This person's contract of service was recently terminated by us after receiving 3 years worth of payments from us on a recurring monthly basis, we've paid each invoice on time and successfully. I am honestly unsure what their complaint is, however their letter before action stipulated that an amount was owed, and now their particulars of claim state underpayment of invoices, although the only invoices we have show all paid in full with bank receipts demonstrating so. I'm honestly puzzled!

Thanks,

Edit:- Is it possible for me to try and get the claim struck out on CPR 3.4 based on the claim making no serious attempt to comply with CPR 16.4(1) by setting out a concise statement of the facts? The particular of claims state "The amount due is in respect to monies due to xx in respect of under paid invoices that were due between xx/xx/xxxx and xx/xx/xxxx for the sum of £####." The remainder is the standard interest on debt claims etc.

[enquirer]

Re: N1 received - Advice needed please!

On the information that you have given, you would be unlikely to get it struck out. The claim would either have to be legally absurd or almost complete gobbledegook.

When writing your defence (if you simply rely on breaches of CPR, you will lose), keep it crisp and clear. Back it up with copy invoices, bank statements and so forth. Attach these at the back and use reference numbers in the text.

Make sure that there is a clear chronology, as it's here that you show that you have been reasonable and they have jumped the gun.

Yes, insert the fact that it is an ex-employee, but don't make a song and dance about it - it's interesting and will be noted, but it's not your defence, which is that you actually owe nothing.

Attach a copy of your business agreement to show the rolling payments. Correspondence showing a clear date of termination would also be a good idea.

[Celestine]

Re: N1 received - Advice needed please!

You need to send the claimant a request pursuant to CPR 31.14 requesting disclosure of evidence referred to in their claim form, such as the disputed invoices, etc etc.

[FlamingParrot]

Re: N1 received - Advice needed please!

You need to send the claimant a request pursuant to CPR 31.14 requesting disclosure of evidence referred to in their claim form, such as the disputed invoices, etc etc.

You'll find an example CPR 31.14 request here, you'll have to edit it to suit: http://www.legalbeagles.info/forums/...084#post350084

[Enom]

Re: N1 received - Advice needed please!

Thank you enquirer and Celestine for your input, it is much appreciated. I will go down the route of sending a CPR 31.14 to request for the evidence as referred in the particulars of claim.

I will start writing up a response and compiling invoices with payment confirmations from my bank now. I will also include the agreements and correspondence also, although I will need to be careful not to bombard with too much information, as I also believe clear and concise is the best policy as you recommended enquirer.

You'll find an example CPR 31.14 request here, you'll have to edit it to suit: http://www.legalbeagles.info/forums/...084#post350084

Thanks for the link, but when accessing the link above I receive an error saying I do not have the permissions to access such page. Could I kindly ask the example be quoted in reply to this thread?

Thanks so much in advance,

Edit:- I've found an example CPR 31.14 elsewhere on this site, can I confirm, I should only be claiming for documents referred to in the particular of claim (which is admittedly a sentence long "The amount due is in respect to monies due to xx in respect of under paid invoices that were due between xx/xx/xxxx and xx/xx/xxxx for the sum of £####.").

I have written a basis, and based on the information above, the only information I can think of asking for is a copy of all invoices between the dates specified, and a copy of all payment receipts between the dates specified. I already have these documents, at least the set I know to be correct, so am I simply asking for the documents out of curiosity and still remain reliant on my own copies in my defence? Also, should I ask him for a copy of any service agreement also, even though we also hold this?

[charitynjw]

Re: N1 received - Advice needed please!

If this is a 'Small Claims' matter, CPR Part 31 does not apply.

Extent to which other Parts apply

27.2

(1) The following Parts of these Rules do not apply to small claims –
(a) Part 25 (interim remedies) except as it relates to interim injunctions^(GL);

(b) Part 31 (disclosure and inspection);

(c) Part 32 (evidence) except rule 32.1 (power of court to control evidence);

(d) Part 33 (miscellaneous rules about evidence);

(e) Part 35 (experts and assessors) except rules 35.1 (duty to restrict expert evidence), 35.3 (experts – overriding duty to the court), 35.7 (court’s power to direct that evidence is to be given by single joint expert) and 35.8 (instructions to a single joint expert);

(f) Subject to paragraph (3), Part 18 (further information);

(g) Part 36 (offers to settle); and

(h) Part 39 (hearings) except rule 39.2 (general rule– hearing to be in public).


(2) The other Parts of these Rules apply to small claims except to the extent that a rule limits such application.

(3) The court of its own initiative may order a party to provide further information if it considers it appropriate to do so.


Apparently, you just contact the other party & request the desired info - the court normally gives standard instructions re disclosure.

(Best to also copy the court in to the request, for their records.)

[Enom]

Re: N1 received - Advice needed please!

Thanks for the input charitynjw, could I confirm though? Currently I have not submitted a defence and as such I assume this case to be trackless and so hasn't actually been marked as a "Small Claim", if that's the case, could a 31.14 still be used up until the point it is put in to a track?

[FlamingParrot]

Re: N1 received - Advice needed please!

The letter I linked to above makes allowance for that due to lack of track allocation at this stage. I'm sorry you can't access it, it may be in the VIP area but I'll copy and paste it. :grin:

[FlamingParrot]

Re: N1 received - Advice needed please!

This is the letter I'd linked to, note that it has to be amended with your own details, etc.:

Dear Sirs,

Re: XXXX v YYYYY
Case No: xxxx

CPR 31.14 Request

On 15th June 2013I received the Claim Form in this case issued by you out of the Northampton County Court.

I confirm having returned my acknowledgement of service to the court in which I indicate my intention to contest your entire claim.

Please treat this letter as my request made under CPR 31.14 for the disclosure and the production of a verified and legible copy of each of the following documents mentioned in your Particulars of Claim:

1 The Agreement. Together with the relevant terms associated with that account, you will appreciate that in an ordinary case and by reason of the provisions of CPR PD 16 para 7.3, where a claim is based upon a written agreement, a copy of the contract or documents constituting the agreement should be attached to or served with the particulars of claim and the original(s) should be available at the hearing. Further, that any general conditions incorporated in the contract should also be attached.

2 the assignment notice

3 the default notice
Compliant with 87(1) of the Consumer Credit Act 1974

Although your claim is for a sum which does not exceed £5,000.00 and thus in all likelihood it will be allocated to the small claims track once I deliver my defence, however as I am unable to lodge my defence at this moment, the case has not been allocated to a track for determination upon delivering a defence, as a consequence the provisions of CPR 27(2) have no effect and you should not seek to avoid compliance with your CPR 31 duties by claiming otherwise

You should ensure compliance with your CPR 31 duties and ensure that the documents I have requested are copied to and received by me within 7 days of receiving this letter. Your CPR 31 duties extend to making a reasonable and proportionate search for the originals of the documents I have requested, the better for you to be able to verify the document's authenticity and to provide me with a legible copy. Further, where I have requested a copy of a document, the original of which is now in the possession of another person, you will have a right to possession of that document if you have mentioned it in your case. You must take immediate steps to recover and preserve it for the purpose of this case.

Where I have mentioned a document and there is in your possession more than one version of that same document owing as a result to a modification, obliteration or othermarking, or feature, each version thus will be a separate document and you must provide a copy of each version of it to me. Your obligations extend to making a reasonable and proportionate search for any, and all version(s) and include an obligation to recover and preserve such version(s) that are now in the possession of a third party.

In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

If you require more time in which to comply with this request you must tell me in writing. You must tell me before the time for compliance with this request has expired. In telling me you require more time you must tell me what steps you have taken and propose to take in order to comply with this request and also state a date by when you will comply with this request. In addition your statement must be accompanied with a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.

If you are unable to comply with this request and believe that you will never be able to comply with this request you must tell me in writing.

Please note that if you should fail to comply with this request, fail to request more time or fail to agree to an extension of time for the filing of my defence, I will make an application to the court for an order that the proceedings be struck out or stayed for non-compliance and a summary costs order.

I do hope this will not be necessary and look forward to hearing from you.

Yours faithfully

[Enom]

Re: N1 received - Advice needed please!

Thanks so much FlamingParrot! That looks great, I'll be sure to use that template as the one I found is significantly different but the one above is much better.

I originally edited my post with the below, but figured I'd remove the edit and post a new reply so that it is noticeable.

I'm wondering if I could be shooting myself in the foot requesting copies of invoices and such? If I provide my own copies of invoices and payments, and he hasn't produced his own, then surely things look more favourably to me? If I request these copies, and he has modified versions of his invoices, then it will go down to proving which invoice is legitimate, and of course, common sense says why would someone continue providing service to a person who's been supposedly underpaying for well over a year and a half, but I'm wondering if I should just go full steam ahead and state the pre-action protocol breaches, provide all invoices and payment receipts, and say this person has not once produced any documents demonstrating any type of unpaid or underpaid invoice despite a letter sent requesting this information before court action.

Thoughts?

[FlamingParrot]

Re: N1 received - Advice needed please!

Thanks so much FlamingParrot! That looks great, I'll be sure to use that template as the one I found is significantly different but the one above is much better.

I originally edited my post with the below, but figured I'd remove the edit and post a new reply so that it is noticeable.

I'm wondering if I could be shooting myself in the foot requesting copies of invoices and such? If I provide my own copies of invoices and payments, and he hasn't produced his own, then surely things look more favourably to me? If I request these copies, and he has modified versions of his invoices, then it will go down to proving which invoice is legitimate, and of course, common sense says why would someone continue providing service to a person who's been supposedly underpaying for well over a year and a half, but I'm wondering if I should just go full steam ahead and state the pre-action protocol breaches, provide all invoices and payment receipts, and say this person has not once produced any documents demonstrating any type of unpaid or underpaid invoice despite a letter sent requesting this information before court action.

Thoughts?

Bear in mind the CPR 31.14 request above is only for documents mentioned on the particulars of claim, not a general request for information.

[Enom]

Re: N1 received - Advice needed please!

Bear in mind the CPR 31.14 request above is only for documents mentioned on the particulars of claim, not a general request for information.

Makes sense to get the information then if he'll be able to rely on it eventually anyway, sorry for my ignorance and thanks for the clarification! Based on the particulars of claim, I am asking for invoices and payment receipts, as these appear to be the only two items sort-of mentioned.

In regards to the agreement, should I also ask for this as per the template above? The contract was only ever electronically signed and I already hold a copy of this.