Have I screwed up my defense?

[OhNo]

So I need to decide whether to go ahead or not and its a difficult decision now!

It seems Amethyst believes it unlikely I would win. rob I think has moved slightly by saying it is at least "not clear cut". des8 and charitynjw both seem to fancy my chances. I hope I've summarised that broadly correctly?

How fortunate am I to have had four legal minds discuss my case in some detail! Unfortunately, I haven't a clue what I'm going to do.

A practical question I'm hoping is easy for you to answer is why has my case already transferred from MCOL to a local court without me sending back the Directions Questionnaire which arrived yesterday? Is it something to do with the fact I put in a counter claim? (Note I didn't mention that already because I didn't want to complicate the thread anymore and if the Defence is a dud then the counterclaim would surely also fail). The court it has transferred to is not my ideal court and I thought as the other party is a ltd company and I'm not it should be the one closest to me? Is there anything I can do about that?

[Amethyst]

I'm 60/40 in the claimants favour if that helps ....

Its a big picture issue really - is the principle worth the stress and potential of additional costs of proceeding ?

and now .... what the heckerslike have you counterclaimed for ? How much ? And which court has it been transferred to ? There may have been an ex parte application by the other side - possibly to strike your counterclaim as unreasonable ... I don't know but best way to find out is to ring the court tomorrow and ask.

[des8]

Hmm.. all i did was to point out that on the basis of what you have told us, IMO you have a case to argue.
I did suggest we would need to see exactly what was written in those emails.
I generally caution against suggesting anyone has a slam dunk case when it comes to small claims track.....you never know!

And now you tell us you have lodged a counterclaim.....for what?

Regarding the court you can always try a letter to court asking for it to be transferred to your local court as you are an individual, litigant in person whereas claimant is large limited company. Play the age card or anything else.

[OhNo]

Cheers once again for the replies. Note the counterclaim was filed well before I received your comments (as I say I felt things were complex enough without adding that into the mix at that stage).
Almost certainly pie in the sky but I counterclaimed for the 4 figure costs I have already paid to the solicitor for the abortive purchase and sale. I also added the effect this has had on my medical condition over the past nearly 2 years.

It seems I need to send the directions questionnaire to the local court. Does that mean if I put in the box that they are a ltd company there is a chance it would be transferred again to the court I request?

Would I be able to send the emails to you? What would be the best way without (at least for now) posting them here?

Definitely also appreciate your comments about nobody has a slam dunk case and you all can be 100% certain that whatever happens I shall not for one second blame anybody because I know you have all acted in good faith and there must be some risk "advising" on a public forum like this. I am very grateful for this.

If there might be a case to answer (does that mean 60:40 in favour?) and I go ahead with it what are the chances of getting the odd bit of guidance as the case progresses? In just pure financial terms, it does seem worth defending if the probability of winning is greater than 10% (and from reading all the above my gut now says 50%) because if I give in now I've definitely lost £2500 at least versus the hearing fee and a few more costs? Alternatively, if I/we think the probability is 50% perhaps that is what I should offer (i.e. £1250)?

[des8]

Overnight thoughts:

Generally when purchasing a [property the buyer lodges a deposit "subject to contract".
The contract is refundable if the sale falls through.

These buyers have lodged a deposit "subject to conveyancy" (ie subject to contract)
They have then amended that deposit agreement so the deposit becomes refundable if the chain is broken.(ie conveyance is not completed)

That seems to be ambiguous so does not the principle "contra peroterentem" come into play, or is that now old hat?..


When you send the DQ back ask for the case to be transferred to your local court because.......

Looking at how you calculate the odds...are you a bookmaker?

[Amethyst]

Ring court this morning about the transfer. I suspect there is an application to strike your counterclaim.

Find out whats happened and let us know.

The 60/40 is against you.... but like your optimism. I don't think you will win in either defence or counterclaim but it's just my opinion on what we know so far. The emails will make it clearer who broke the sale.

[R0b]

Overnight thoughts:

Generally when purchasing a [property the buyer lodges a deposit "subject to contract".
The contract is refundable if the sale falls through.

These buyers have lodged a deposit "subject to conveyancy" (ie subject to contract)
They have then amended that deposit agreement so the deposit becomes refundable if the chain is broken.(ie conveyance is not completed)

That seems to be ambiguous so does not the principle "contra peroterentem" come into play, or is that now old hat?..

Contra proferentem is still very much in play but these days the courts try to avoid it. You are right, you could argue that but OHNO hasn't pleaded it so worth a try but the court might reject an argument not contained in the defence.

It will most likely turn on the tone of those emails and whether it can be inferred that the buyer had given some indication that they were withdrawing from the sale.

Agree with Amethyst on her % of success being 60/40 in favour of the claimant; that would be sensible.

P.s. Des, lawyers calculate claim success on a percentage basis.

[charitynjw]

http://www.legislation.gov.uk/ukpga/...ion/69/enacted

69 Contract terms that may have different meanings

(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

[Amethyst]

OhNo did you manage to give the court a call ?

[OhNo]

Hi

No, I didn't partly because there are two courts involved now (ccbc and the local one) and it wasn't clear to me which one to call and partly because I had the "pleasure" of calling ccbc over two days last Friday. I spent nearly two hours on the phone over three calls and two days in order to make a payment and meet deadlines. I assume if an application has been made I would need to be told ?

I did however research a little about the grounds for throwing out. Two example cases I came across were one in which the co-claimant was a dog and a second in which the fees were orders of magnitude greater than what they should be. I'm not a dog and I didn't claim a million quid so I hope I have some chance of it not being thrown out.

Note also that notice of transfer was made on the same day as I paid for the counterclaim so the other side would have had to have been extremely quick to have put in a throw-out application (or whatever its called) so quickly .

Edit: The local court is my closest court but it is not the most convenient.

[charitynjw]

You are at liberty to nominate a court which is more convenient to you.
At Directions Questionnaire stage, you will be given the opportunity to do so, & it's briefly outline your reasons for that particular venue.
However, the final decision on the matter is with the court.
But as you are an individual, they normally try to accommodate your wishes.

I'm still of a view that the other party's action constituted a repudiatory breach, & as you rejected the offer (ie did not agree to the new deal) & communicated same, you have not affirmed the breach (ie not agreed to go ahead with the reduced offer),& are therefore within your right to view the contract as terminated.

https://www.darlingtons.com/blog/rep...ch-of-contract

Also see below

[charitynjw]

http://dictionary.sensagent.com/Phot...ort_Ltd/en-en/

[charitynjw]

https://www.bailii.org/uk/cases/UKHL/1980/2.html

That lot should give you something to chew on!



Have you had a word with a specialist solicitor?

[OhNo]

https://www.bailii.org/uk/cases/UKHL/1980/2.html

That lot should give you something to chew on!



Have you had a word with a specialist solicitor?

Wow - that is probably beyond my capability to read and understand ! Good job I didn't study law. If such a prior case helped my argument, can I site it in my witness statement or is that too late now? If I do site it, no doubt the judge would ask me about it which would soon expose my non-understanding.

I think the amounts at stake are at a sort of limit. I mean if they were much more it might well be worth engaging a solicitor but not sure it would be cost effective to do so now.

I've been hoping I can largely rely on what happened and allow the judge to interpret that in the context of the law but no doubt the other side will have legal representation and make mincemeat out of me.

[charitynjw]

I'll have a look for you.

Back later.