Small business defending a small claim - correct parties and ranty particulars

[WitchesBrew]

Hi, I'm hoping someone can help me with this.

I'm helping my brother defend a claim in the small claims court relating to his business. The dispute relates to work done on a property, the owner of which is now deceased (nothing to do with the work!). The owner's son is bringing the claim as executor of the estate. The claim is that the work was not done/not done to the agreed standard - so breach of contract and/or negligence. This is where my questions start.

Firstly, are the time limits for bringing claims as executor of an estate the same as for living individuals? I think so, but worth checking. The work in question was done just over three years ago.

Secondly, and more importantly, the son has simply named himself as "claimant", and has then stated in the particulars of claim that he is acting as executor. However, I'm not sure that's right - shouldn't he bring it in the name of the estate? How should we react to this in the defence - should we start by saying that the claimant (i.e. the son) has not contractual relationship with the defendant, and so liability is denied? And then perhaps set out the defence (as best we can, see below) in case the court accepts the claim anyway?

Finally, the particulars of claim are pretty nonsensical, and don't really make out any basis for a claim - it is more of a rant, really. I don't think it is worth trying to get them struck out - but should we comment on it in the defence? It is hard to write a defence to something so nebulous.

Thanks in advance for any help you can give, and appreciate this may need to be moved somewhere more appropriate!

[R0b]

Just so we can understand timelines, is this a claim from Money Claims Online? When was the claim form issue and has your brother taken steps to acknowledge the claim?

Claims brought on behalf of the deceased should be labelled as Mr John Smith (Executor of the estate of Mr John Doe deceased).

It might be helpful to post up the particulars of claim so we can see what had been drafted, and then we can guide you on the response.

Also, it might be worth looking at striking out the claim on the basis that the son of the deceased has no interest in this claim i.e. by bringing it in his own name. A court may decide to amend the claim to reflect that position but you might have stronger grounds for striking out if you write to the son pointing out that he has no interest and any claim would need to be brought in the name of his deceased father, not himself. If the son ignores or refuses to make the necessary amendment, then you could go for strike out, having warned him of the consequences and then tag on the non-sensical particulars not showing any cause of action.

A few more questions if you can answer would be helpful in providing background:

1. Was there a written contract in place between your brother and the deceased?
2. Was there any dispute with the deceased as to the work carried out by your brother, or has the son now raised it 3 years down the line?
3. Did the son comply with the pre-action protocols or send any correspondence indicating his intention to bring a claim?

Negligence is unlikely to be found since you can't claim for pure economic losses unless there is some physical damage to the property. As for breach of contract, well that all depends on if there is a written contract, what was said, agreed etc.

[WitchesBrew]

Thanks Rob

Yes, it was done through MCOL and we have served acknowledgement of service through the online system. The particulars are essentially a ranty letter re-hashing correspondence/arguments that we have been through before with the claimant (so yes, they did comply with pre-action protocols).

We have looked at strike out (due to incorrect parties) but figured that would just prolong the ultimate pain, as they will simply be re-issued in the correct format. I understand that strike out would involve a fee and a court application/hearing (involving a day trip to the town where the claimant lives), which doesn't seem worth it in the long run. I guess that's answering my question in a way - if we cannot muster the energy to go for strike out, as the claim will just be brought under the correct name, do we just ignore the procedural irregularity and look to mount a successful defence? Is it worth even noting the incorrect party in our defence?

There was a written contract, albeit a brief one - but the particulars don't reference either contract or tort law, or breach, causation etc - it is a lot of "this system has broken and it is due to faulty work carried out three years ago" (I paraphrase). No evidence, just assertion that if something has stopped working it must be someone's fault. There was no complaint at the time the work was done - I think the Claimant would say (if they were able to express it correctly - he has not actually said this) that the breach of contract/negligence occurred prior to the death of his father. One of the claims is for the fee for a Lawful Development Certificate, which would always have been the property owner's responsibility to pay (and which it is debatable as to whether the LDC is even required). At one point the claimant was claiming for lost income, as the property is used as a holiday let, but they seem to have dropped that so presumably understand now that he has no direct claim.

We're happy to defend the claim, and confident that it has no basis in law, even if the claimant tried to express it correctly. It is just frustrating that people can submit complete nonsense through MCOL, clearly in the hope that a small business will pay up rather than go through the pain of defending it.

It is all a bit of a muddle, with no easy way to make it go away. The best course of action may just be to serve the defence and ignore the irregularities, let the judge decide on the day.

[R0b]

Even if you don't want to make an application to strike out, it would nevertheless be useful to write to the Claimant and point out that he is claiming in his own name and that there was no contract ever into between your brother and the deceased's son, rather it was the deceased and your brother's business. You could then invite the son to either make an application to amend the name of the claimant or discontinue the claim. If the son continues this course of action then you reserve the right to draw the letter to the court's attention when considering whether the son has any legal standing.

You can then incorporate the above into your defence and explain that the claimant is aware that he has no legal standing since the contract was between the deceased and your brother, but yet he insists in pursuing the claim. Therefore the claim should be dismissed on that basis alone.

It would still be useful to see those particulars otherwise we can only provide limited support, but even if the particulars are a mess your brother might want to consider setting out his own version of events. You could start off with the following statement:

In this Defence:

(a) except where it is expressly admitted, the Defendant requires the Claimant to prove its claims; and

(b) entirely without prejudice to the above requirement, the Defendant denies each and every allegation in the Particulars of Claim.

Then this:

The Claimant has not pleaded his case in accordance with CPR 16.4 (1) (a), in that there is not a concise statement of the facts on which the Claimant seeks to rely. Furthermore, the Claimant has merely provided a chronology of correspondence, disclosing no reasonable cause of action, which in turn means it is difficult for the Defendant to respond to the claim as he does not know the case he has to meet in respect of the allegations. Accordingly, the Particulars of Claim is liable to be struck out for want of particularity.

Followed by this statement:

Accordingly, this Defence will therefore respond to the Claimant’s allegations by setting out the Defendant’s version of events.

You can then set it out in headings starting with the (1) parties, (2) factual background and then (3) the claim, at which point you address all the allegations raised by the claimant in a concise manner.

It's likely that the defence won't fit into the box on Money Claims because there is a limited number of characters and therefore you should set it out properly headed and numbered paragraphs, sending by first class post to the claimant and then emailing it to the court.

You can see how to set out and example defence by clicking here.

If you need any feedback feel free to post up a draft for comment but as I mentioned above, any comments on the draft are likely to be limited without sight of the particulars of claim.