What makes a contract legal? is this one?

[matrixsteele]

Good Afternoon.

I'm in a legal dispute with a nursery, long story short:

We sent our daughter in, they then started messing up their level of care due to how many new staff and managers in a short few months, in this time they kept messing up the bills and invoices, because of this we removed our child in May 17.
They have charged us for the whole of May although she left on the 8th which they confirmed was he last day. they actually invoiced us in April for May.

We have said that the bill is wrong but because of so many staff changes in the head office it kept getting over looked. we had so many different invoices for may £600 £800 and £1300.

Anyway they took us to court in May 18 for £900, and because we had moved all the info got sent to an old address. High Court bailiffs turned up on our door in Sept 18 demanding £1800 which we paid; (1st time knowing about a court order) anyway we are due to get it Set Aside it in court this Wednesday.

Because i know i don't owe the money i sent in a SAR and got all the details held about the account to build my defence. in the files is the companies "contract" for the services now its called a 'registration form'. In the form it does not specify an hourly rate, any chance of price increases, late charges, cancellation policies etc; now because of this i was looking to claim back all the money i have paid to them as they have brought loads of undue stress and complications.

attached is the form, which i filled out, you add other peoples details who are there for emergency contacts etc. In the form it asks who will be the "Bill payer" now this can be anyone, i could add any details, EG i could of put YOU down. at the bottom of the form it asks ME to sign, saying that i agree to the terms of the form, yet there is no signature required for the "bill payer"

please can you look through and see if its a legal form and if i can claim all the money i paid back.

Also will it be worth it?

I know in the set aside case i can only have prove that we had a chance to defend it and that we had moved when we were originally summoned to court to get it set aside, will the judge give me any info if its worth it, or if i can peruse it as a counter claim.

Also if it is set aside will i get the collection fees and interest back (£900) what happens?

thanks for you help.

My previous thread has more in depth information and invoices etc: https://legalbeagles.info/forums/for...-the-whole-lot

[Amethyst]

Morning Matrix - just having a read through your post xx

[Amethyst]

Well that's not the agreement or terms, just the registration form to give details of the child etc. I'll have a look at your previous thread. The terms should give notice period and cost.

ahhh yes. Okay remember to tell the judge that you queried the last bill as an error ( as they were prone to make errors) and you never heard from them again - you had no reason to inform them of your move - they had your email and phone details which hadn't changed and had been used previously to communicate and had they asked you'd have given them new address for service and defended the claim due to their constant billing errors and no contract/agreement about cancellation or termination charges. You only paid the hceos the amount because they were extremely threatening and applied promptly to set the judgment in default aside.

[matrixsteele]

Thanks, you have given me a lot of help in my other post..

I'm looking to pursue this after they kept threatening us with court action, us proving they were wrong and they went ahead a full year later.
luckily we kept all emails of them saying they keep messing up, loosing our payments, not applying them to the system, and blaming other work colleagues.
loosing £1800 has messed us up completly, we could of used it to get our car fixed, but now she doesn't have a good credit rating because of this.
the nursery was contacted by HMRC to confirm that our child went there as we both worked and got tax credits, they denied her going and we got a fine (that we are still paying off) of £18,000 was 30 to start off with.
we could prove she went there but HMRC wouldn't have any of it,

hopefully I can claim just to prove a point that I was right and we can't be bullied (loads of emails) and that the company needs to rethink how they operate

[Amethyst]

Yes I remember you saying about the HMRC issue.... did you get a SAR sent to HMRC ? Concentrate on the set aside hearing of course now but it will be worth finding out exactly what the decision HMRC is based on and look again at appealing it if is based on the wrong information provided by the nursery.

So good luck tomorrow, get this set aside, then you can start looking at the defence ( as unless the court gives summary judgment against the nursery at the hearing it will go back to the position where you should defend the case...you'll then need to claim for the money you paid to the HCEO - this hearing is just for the judge to decide if you can set aside the CCJ and have the opportunity to defend the claim )

[matrixsteele]

Just had this bundle come through.

they are going to defend the case, saying we knew about the debt and court etc, they also want to prove we don't have a case by supplying a defence.

I'm going to take my defence tomorrow,

now in their paperwork, there is a few flaws, 1 the registration form was made and dated Sept 15, signed by me on Dec 15, but the terms I supposedly agreed was made may 16.
2, fees= no agreed amount.
3, fees = should be made aware of increase (wasnt)
4 late charges= We were charged for late collections even though they sent proof that we were only late once.
5 "legal contract" well i don't think it's very legal, if you agree to terms surely they need to be signed too? And dated the same time?

also I'm sure the "contract" has no legal standing if you can name anyone as the bill payer, you can't get finance or a mobile and say, " well someone else going to pay" without their signed acknowledgement

my wife has had a meltdown, saying are we now going to owe their solicitors £800 Just for admin, and not even showing up.

[ploddertom]

From what I see they now admit sending everything to a previous address as they state the HCEO traced you to your new address. The costs listed are to me the usual frightener given out by solicitors hoping you will pull the Hearing - they forget that for Small Claims then costs can be dismissed unless the other party has been coming the game. I note that 1 part of their costs appears to say that LPC Legal may represent them at Court - they are usually instructed very late in the day and do not usually have a complete file to refer to. If approached by them before the Hearing then politely listen to what they have to say but make no comment in return - after all as far as you are aware they should have copies of your Defence.

personally I would take extra copies of your paperwork that you could produce if for some reason the Judge or other side have "misplaced" theirs.

[Amethyst]

Have you ever seen those terms before? ( not at the time of signing the registration form obviously as they're from May 2016) and who are ' Complete Childcare ' ? ( ahhh yes I remember - Smart Tots are part of a group aren't they )

If not, say so tmw. Having a read through but just about to go pick up son from train station so will come back later xxx
https://www.completechildcare.co.uk/...y-nursery.aspx

The witness statement might help with your HMRC issue.

[Amethyst]

Hope things have gone okay for you today xx

[matrixsteele]

Thanks
could of gone better, the lawyer who turned up spoke to us and said he doesn't know why he's there as there's not a lot to defend,
he basically worded everything in our favour and said that the claimant need to provide more evidence.
judgement was set aside and and they have to pay back £1200.02, we loose the enforcement fees due to not acting quicker as the just be said we we ignorant to the law, but do have a chance of success, today's fees were dismissed.
we can claim the fees and costs back if it goes to trail or meditation, the laws say we only owe around £200.
The just a didn't understand the claimants invoices as they are not displaying fully what we are being charged for.
so no we need to submit the defence and send it to them and wait for the money and a trail date

[Amethyst]

Okay, that's better than losing and £1200 back should help in the short term (if they pay it of course ).

So now you can put a full defence together - do you know when you have to file and serve it by ? ( normally it's 14 or 21 days after the set aside )

So you can claim your application fee, and the enforcement fees? if you go on to win the overall case? but they have to repay the £1200 straight away?

Was the Lawyer from Complete Childcare ? Did the lawyer even bother arguing for their costs schedule they'd tried frightening you with ?

[ploddertom]

It will be interesting to see what the Order says. I find it strange that it is Set Aside but you still have to pay enforcement. If it is starting from the beginning then there was never any Writ raised so therefore no enforcement. Let's not worry too much at present and hopefully all will become clear at a later stage.

[pt2537]

It will be interesting to see what the Order says. I find it strange that it is Set Aside but you still have to pay enforcement. If it is starting from the beginning then there was never any Writ raised so therefore no enforcement. Let's not worry too much at present and hopefully all will become clear at a later stage.

Probably the Claimant would have argued that they would be out of pocket due to the fees which they would have to cover for the HCEO if it was set aside, at least i assume thats the case.

[ploddertom]

Probably the Claimant would have argued that they would be out of pocket due to the fees which they would have to cover for the HCEO if it was set aside, at least i assume thats the case.

If that is the case then they should have
a - read the small print from the HCEO
b - seeing as they had correct contact details for the OP they should have used them

I've said this somewhere else lately that there are too many Judgment Creditors who go blindly into High Court enforcement on Default Judgments without realising the consequences should the Judgment Debtor be successful with a Set Aside application. TV programmes make it seem all too easy to do but never explain the pitfalls.

[matrixsteele]

Hi guys, sorry had a bad few days and tonight is really my 1st time off.

attached it the order of the court.

I'm currently sat in the kitchen writing up my witness statement, i have gone through all the evidence again and i feel i have a good case.

Obviously the judgement was set as side due to me proving the facts that i didn't live at the address, with regard to the HCE fees i tried arguing saying that i had acted as quick as i could when i heard about the claim and i have added my itemised phone bills to the new evidence (I was told by the claimant that they would put a 30 day stay on it so we could resolve it) - turns out their solicitor called up the HCE and instructed to collect full payment (proof in HCE SAR)

I know i need to add facts and back it up with the paper evidence

after going through everything i think i owe a some money £472.50* (this was the sum after my wife stopped paying as the invoices kept changing and they wouldn't amend their errors - its amazing what emails you find, especially the claimant admitting errors, systems and other colleagues being "too slow" & being billed a month before our child started)

The judge basically said that the contract makes no sense, as i filled it out and put my wife as the bill payer and she didnt have to sign it; but its an implied contract as we used and benefited from the services and did pay the majority. if it goes to trail, may we get a different judge, or may they say either way if the contract is a legal one?

with the invoices, the claimants witness statement read "the correct Invoice is for £975.00, in the hearing to set as side the judgement the judge said "how have they got that number? the claimant invoice is not a full invoice as it does not state what services or hours etc they were charging for, no breakdown, vat etc. ---- blah--Wait- WE just went through the attendance record they sent us, plus the billing records, calculated hour by hour month by month, and worked out we do not owe £472.50, we have over paid by £750.97.

I can actually prove this from their evidence! so what do i do now? in the witness statement: we are going to show our working out ,and that we over paid, how do i get the money back, do i word that there is a counterclaim for £750.97, With the HCEO fees & charges as they should no of been instructed in the 1st place, interest of 8% of the £750 for 22 months and 8% of the £1800 the HCEO took for 5 months.
I also want to claim money back for the 500 pages i have printed and copied etc, time and stress for my wife for this whole experience; is there a way? how do i do it? in this case or a new claim.

I want it all done and dusted and i am certain my case is strong, with all the emails confirming their own errors and the facts. i have always said im in the right and don't owe the money but i feel we have lost out on far more due to their incompetence.

please help and thank you if you made it this far, The Defence has to received by 3rd jan.
I made another post but might be relevant here:

Hi I have a court case coming up, now i have spent a lot of time and now money printing off my defence, which had to be copied x3 times for the judge and the claimant (approx 300 pages in colour) i know i will need to send these and i will send them via recorded delivery as they need to be at the court by 4pm on the 3rd of JAN19
all these costs i want to claim back but my understanding of for N260 it states that only people can claim with a qualification.
Am I reading it right or is there another form / way to fill it out?

(A) Solicitors and Chartered Legal Executives with over eight years post qualification experience including at least eight years litigation experience. (B) Solicitors and Chartered Legal Executives with over four years post qualification experience including at least four years litigation experience. (C) Other solicitors and Chartered Legal Executives and fee earners of equivalent experience. (D) Trainee solicitors, paralegals and other fee earners. “Chartered Legal Executive” means a Fellow of the Chartered Institute of Legal Executives (CILEx). Those who are not Fellows of CILEx are not entitled to call themselves Chartered Legal Executives and in principle are therefore not entitled to the same hourly rate as a Chartered Legal Executive.