Striking Out A MCOL Counterclaim

[Refinitiv]

Hi All

I was keen to receive some advice from experienced members of the forum.

I will give a brief description of what this is about.

I ordered a website from a company and 2 weeks into a 1 year service & maintenance contract, they closed the business due to unforeseen circumstances as they call it. I had already paid them £600 for the website, this was my 2nd website with them.

I kept contacting them & I got the same auto replies from them for 50 weeks. After 50 weeks they started up the business again & demanded even more money to ensure the site stays up. I refused to make a payment for more services as I was already out of pocket.

They started demanding extra money for hosting, copyright etc. Please note that there were no terms and conditions provided by to me during the sale and nothing was agreed for continuation of service after 1 year. The only thing that was agreed was the creation of the website and the iteneray of services being provided were in an email.

After they started sending me fake invoices for services and demands for copyright that did not exist, I left them a negative review on Google stating a true reflection of services provided.

A few months later I received a letter from their solicitor making baseless and meritless accusations. The accusations were relating to a negative review on Google which they say amounts to defamation, which I disagree. Then they accused me of creating a website with a similar domain name as there, these we also false accusations which they will never be able to prove. They also tried intimidating me via the solicitor to enforce a fictious claim and demanded money from me for the solicitors letter before action and reply letter from the solicitor in relation to my defense.

At this point I felt really low and built up the courage to start my on MCOL claim from failure to provide the services paid for, i.e. website and 12 month maintenance. I sent a letter before action, they failed to reply within the 14 days I gave them. I started the claim for £600 plus interest as that's what I had paid them. That was me being fair.

Off the back of my MCOL claim, they have put in a counterclaim for £1100 which is made up of defamation, legal costs levied to them by their solicitor and payment for the fake invoices. I know for sure a fact in MCOL, you cannot claim for defamation if I disagree with the defamation claim. I also know that they cannot claim legal costs incurred for a solicitor writing letters before action. They can only claim a fixed fee for a solicitor filling in the MCOL application for them, which doesn't apply as they filled the counterclaim themselves.

My plan is to have this counterclaim struck out as 2/3 items being claimed for in the counterclaim cannot be enforced in the county court such as defamation and solicitors legal costs for writing letters. Deformation can be claimed in the high court.

What I need to know is when do I apply to have the counterclaim struck out. At this moment in time I have a questionnaire to fill out about the counterclaim being pursued by the defendant.

Do I put my statement for the case to be struck out in the counterclaim?

Is there any references that I should use the letter to struck out the case?

Any help or advice is appreciated.

Regards

Refinitiv

[R0b]

Hello

A few things I would say off the bat:

1. Closing the business due to unforeseen circumstances is rather vague. Was the structure of the business e.g. was it a limited company, a partnersip, sole trader etc. Also, when you say they closed, did they re-open business under the same name or under a different name?

2. You've not given us any details of the agreement which is not particularly helpful. Please clarify the terms of the arrangement, what was agreed, how much for etc. You've mentioned hosting as well as copyright so did they create a bespoke website or an off the peg type? Please clarify.

3. In addition to point 2 above, if they did indeed design or create something for you then I should start by saying that intellectual property law states that where someone commissions a third party for works, the general rule is that the third party is the owner of the works unless there is explicitly agreed that the works will be assigned to the commissioner. Unfortunately, it is very much common for people to think that just because you've asked for some work to be done on your behalf, you are naturally the legal owner of the created work and therefore free to exploit it as you wish - sadly, that's not true as the law says there must be an assignment otherwise ownership stays with the creator.

4. So what are these fake invoices, have they been itemised what they are for? You paid them £600 but did they design the website whether partly or in full before shutting shop? If they actually provided some design of the website then you can't simply claim the full £600, it would be a proportion of it depending on the % of the website being completed.

5. I wonder whether it is worth the time and money seeking to strike out the defamation and costs of pre-action letters. I can't remember what's in the Civil Procedure Rules but I would not be surprised if the County Court had the inherent power to transfer the case to the High Court on the basis of the counterclaim. By making an application for strike out, you would be affording a judge that potential opportunity and then it becomes very expensive for everyone. I would be inclined to set it out in your defence to your counterclaim (but before the defence, invite them to withdraw their counterclaim and agree that they won't pursue those two claims).

[Refinitiv]

Hi Rob

Thanks for the reply.

In relation to point 1, yes the reason to close the business was vague, they said it was due to her partner's circumstances they cannot carry on with the business. They were a sole trader when I took the service out with them. When they they started up again after 1 year, they continued with the same trading name.

In relation to point 2, there weren't any specific terms & conditions aside from the intenary of services they would provide in addition to the initial design. These services are listed below. They are a boyfriend/ girlfriend team who started selling webdesign services off eBay and then in addition via a website.

The list of services were:

A full money back guarantee in the event that I was unhappy with the work within the 12 month period. This is why I'm claiming the full £600 from them, I am claiming against the money back guarantee they stipulated in the sale. I was left with a website that was not fit for purpose as it ended up being a dead dormant website that was not updatable by me or anyone else. Only they had access to the admin interfaces.

The creation of unlimited webpages with the 12 month period.

Training to be provided to teach me how to update the webpage content.

12 months maintenance in relation to the website.

I paid £600 for a package regardless of how they have split up the costs in their view.

The website was off the peg type which was built using WordPress and a free WordPress skin, both the WordPress CMS and the WordPress skin are open source. They designed a basic logo for me and this was the only unique item they designed. The content of what should be added was mine, I provided the majority of the pictures. The remaining pictures they used were also under a Getty Images free to use license,

In relation to point 3, the website that they created was not transferred to a new hosting provider and remains offline from the day they cut me off for not paying the hosting charges. After receiving such poor service I was not going to continue using their services. I would understand that they may claim for copyright and intellectual property if I had transferred the website to a new hosting and the website was still online. But if the website is dead, why should they claim for copyright. There is no requirement to release the copyright on a dead website which will never come back online. It's a malicious tactic that they are using which has no merit.

in relation to point 4, the reason why I say that the invoices are fake is because they were made up charges which were not mutually agreed by both parties. I have SMS messages saved where the webdesigner actually states that you will pay me something for the website, if you don't pay for additional hosting or pay a transfer fee to take the hosting elsewhere, you will have to pay for the copyright in the event I transferred the website to a new hosting provider without their approval. The fact remains the website is dead and has not been transferred, so claims for copyright release and payment for hosting or transfer of hosting do not apply here. The fact that 6 months after the website was shutdown, they are claiming for copyright shows their malicious attempt at trying to intimidating me with a bogus counterclaim.

In relation to point 5, i've got no intention of paying anymore money to submit a form asking for 2/3 items to be struck off. I was going to write back to the county court that these items are not in the jurisdiction of the county court and in the event the defendant wants to pursue the defamation claim they can do so via the high court following the correct pre-action protocol for defamation. In all honesty the defendant has said in the counterclaim that she had no actual intention of pursuing these claims and the solicitors letters that were sent to me were just threats which they had no intention of following through. The solicitor was used to intimidate me for their pleasure. They are now only pursuing the counterclaim in retaliation for me entering a MCOL claim. It's a childish game to them really.

The whole of their counterclaim is meritless.

Regards

Refinitiv

[Amethyst]

You will need to enter a defence to the counterclaim regardless… It might help if you can post up their defence and counterclaim - When did you receive their defence?

[Refinitiv]

Hi. When I entered the MCOL they were given the option to extend the period where they could offer a defense. The sent the defense on the very last day of the allowed extension period for entering a defense. A couple of weeks later they submitted a counterclaim excluding their solicitor from the process.

Can I send the defense and counterclaim to you privately? I have until 8th August to submit a defense to the counterclaim. I know for a fact as per CPR PD 53 and CPR 7 (2.9), they cannot claim for defamation unless both parties agree for the claim to be heard in the county court, which obviously I will not agree to. They have not followed the correct pre-action protocol for defamation cases as per the Defamation Act 1996. They are only claiming £220 for defamation, I doubt they will pursue this via the high court.

Also as per Part 45 relating to fixed costs, they cannot claim for legal cost incurred for fees relating to a solicitor sending a letter before action. They are claiming £330 for solicitors fees, they won't be able to pursue this as per the rules setout in Part 45

Regards

[R0b]

That doesnt sound right. For counter claims you have to submit it at the same time as your defence otherwise youd need to make an application from the court for permission to file a counterclaim.

either something you've not told us or they've not complied with the rules and therefore they have no counterclaim thus no defence to that is needed.

[Refinitiv]

Hi, apologies. I neglected to mention that they put in a counterclaim at the same time as issuing a defense via the OCON9B, defence & counterclaim form.

Regards