Company Car- left employment now being chased for upgrade costs...

[Kraken1]

can't see it hurting. head it 'without prejudice save as to costs'

[m2000]

Thanks Kraken!

 

Is it ok to send it by email to the solicitors? they have previously emailed me...

 

Also, would you send a 'cc' copy directly to my ex employer?

 

Thanks!

[Kraken1]

again, can't hurt.

[m2000]

Hi Kraken,

 

thanks again!

 

Just another couple of quick questions.

 

1. Documents which I have sent to the Claimant "without Prejudice" or "Without Prejudice save as to costs" can I submit these documents as part of my bundle to the court??

 

2. When i submit documents I want to reply on to court (as requested in the direction recieved from the court) how is this done.. i.e. do I send a covering lettter which references each document and an explanation as to why I feel it is an appropiate document?

 

Hope that makes sense?

 

thanks

[m2000]

Hello All,

 

 

Ok, an update for you!

 

As you can see above, I sent an email to the Claimants solicitor, basically making an offer to pay £100 a month to clear the alleged debt. Basically in an effort to keep the matter out of court and to get the issues resolved asap, this was made on a without accepting liability basis.

 

I have today, recieved the following 2 emails from the solicitors:

 

1.

 

"

Dear Mr M2000,

I have now had an opportunity to take my clients instructions.

I have to confess they are somewhat sceptical as to the monthly figure proposed, particularly given that you initially offered £25 a month stating that it was all your "current means would stretch to", then you offered £30 as "the most you could afford each month, then £50. However when we have requested that an income and expenditure form be completed these have not been forthcoming. You now seem to be able to afford double your previous offer.

My client is willing to accept instalment payments, however they want to be certain that this is all you are able to afford. In order to do this I would ask that you completed and return the attached Income and Expenditure form as a matter of urgency.

I look forward to hearing from you.

Yours sincerely XXX "

2.

"Mr M2000

I note that we were directed to file and serve witness evidence and documents, in preparation for the hearing on 17th June, by 21 May.

The courts do not usually require the parties to file and serve statements and documents in Small Claims Matters until 14 days before the hearing. Given your recent offer and the possibility of the parties being able to settle this claim, I would suggest we hold off exchanging these documents until next week. This is to allow us time to try and settle the matter before we incur any unnecessary inconvenience or expense.

Please confirm whether you are agreeable to this suggested course of action."

With regards to email number 1:

they are asking me to complete a Statement of Affairs, listing all income and expenses. Is this reasonable?

It also sounds as if they are questioning why I made previous offers, they have even missed the fact that i made an offer of £75 prior to court action commencing.

With regards to email number 2:

I complied with the directions and did provide a copy of the documents I wish to use for my defence within the timescales set down. I sent these documents directly to the court. It appears that the Claimant has not complied?

How would you interprate this? are they now not acting in compliance with the court directions?

Please, any advice as to how to play this, and what my next move should be.

Thanks again, I really do appreciate your time in helping me,

Thanks

M2000

[Kraken1]

I'd tell them to spin on disclosure and note you have already complied (although you should have sent to them also) and I would fill out the I&E forms. You will have to do this if you lose anyway, and this will be a tough one to win for a LIP. That said, I'd expect the I&E forms to show that you have only 25 quid available... and of course they would be accompanied with a letter saying that you didn't realise it was that bad and so your new offer is £25... this would also note that they have admitted that there are no losses and that you submit that it is likely that the court would conclude that the liquidated damages clause is in truth a penalty clause and unenforceable...

[m2000]

Hi Kraken1,

 

Thanks ever so much for your reply!

 

How does this response letter look?

 

With regards the issue of saying "Please note that this would, in all likelihood, and given that you have already declared that there are no losses " is this the case have they actually said this?

 

Just want to make sure I am saying the right thing in my letter and not giving them further ammunition.

 

What do you feel their reaction will be?

 

 

Thanks again!

 

 

 

 

 

 

"Dear XXXXXX

 

Thank you for your emails dated 25th May 2010.

 

With regards to the issue of compliance with the Directions of the Court, I have already complied with the requirements and my documents were furnished to the court within the prescribed timescales laid out on the directions.

 

I have enclosed the Income and Expenditure form as per your request. However, upon analysis my offer of £100 per month is not realistically achievable, I am rather embaressed to admit that filling in the I & E form you kindly provided was an 'eye-opener' to my actual situation.

I therefore feel I have no other realistic option than to maintain my origonal request of £25 per month.

 

Please note that in all likelihood, and given that you have already declared that there are no losses the court would conclude that the liquidated damages clause is in truth a penalty clause and as such is unenforceable.

 

I look forward to hearing from you

 

Yours faithfully

 

M2000"

[m2000]

ps. The fact that I didn't supply my documents to them at the same time as the court.... is this possible a sticking issue? could this go against me?

[m2000]

Hi again,

 

 

If they didn't provide the docs requested by directions by the deadline, what does the court do?

[Kraken1]

if you haven't complied either (and remember you needed to send to them, not just the court) then I wouldn't go there.

 

 

"Dear XXXXXX

 

Without prejudice save as to costs.

 

Thank you for your emails of 25 May 2010.

 

With regards to the issue of compliance with the Directions of the Court, as you will be aware I have already complied with the disclosure directions of the court, and would therefore be grateful if you could do the same. [only do this if you have fully complied - otherwise agree with their suggestion]

 

As requested, I have completed the Income and Expenditure form and this is enclosed. Having done so, I am embarrassed to note that my previous offer of £100 per month is not realistically achievable. Please therefore consider this offer retracted.

 

I do however consider that an offer of £25 is reasonable based on my available income and would therefore ask you to commend this to your client.

 

I appreciate that your client may be disappointed with this offer, however I am sure you will note to your client that based on the enclosed Income and Expenditure form this is a reasonable offer, and it is likely that should you obtain judgment against me it is probable that the court would also take this view. I would like to thank you for asking me to complete this exercise and therefore bringing this issue to light.

 

I also trust, that in commending this offer to your client, you will advise such that you have confirmed to me that there are no direct losses to be recovered and that in order to obtain judgment against me you will need to persuade the court that the liquidated damages clause your client is seeking to rely is valid. You will be aware that the court might consider this clause to be a de facto penalty clause and therefore unenforceable, as per Dunlop Pneumatic Tyre Company v New Garage and Motor Company. In the absence of any direct losses this would mean that a claim will fail.

 

I look forward to hearing from you

 

Yours sincerely

 

M2000"

[Jasper1965]

Revisiting the prospects of a claim for liquidated damages succeeding:

 

In deciding whether a liquidated damages clause is a penalty or not, the court will take into consideration:

 

• whether the contract refers to the clause as a liquidated damages clause or a penalty;
  
• where the estimate of loss is imprecise, whether the sum is a genuine pre-estimate of the losses that would be sustained or whether it was disproportionate to the actual losses sustained;
  
• a stipulated sum is not disproportionate simply because it is notably greater than the actual loss sustained.
  
• whether such an imbalance of bargaining power existed between the parties at the time of the contract, that one party effectively dictated the terms of the contract.
  

The contract was a standard contract of employment which all employees must sign ergo one party wholly dictated the terms of the contract.

 

Although there existed no estimate of loss per se, the example provided by the employer (£1800) could be argued to be misleading and disproportionate to the actual loss claimed.

 

The contract fails to draw attention to this clause either as a liquidated damages clause or a penalty clause, (the wording of the clause to my reading actually infers it to be a penalty but this is subjective and I may be biased). Any claim that this is a liquidated damages cause has arisen after the fact, no mention before or during your employment. This could easily be construed as misleading.

 

It appears you would rather not take the chance of a Court hearing and I probably can't blame you in the slightest. I on the other hand would probably chance it, a contract of employment is pre drafted and assuming the other employees signed the same contract ,I'm guessing that it is quite safe to say that you or any of the other employees were NOT at any time offered any input into the drafting of this contract. IMO an employment contract cannot be a place where a liquidated damages clause can be inserted as only one party (unless you're a Prem footballer) get's any input into the drafting of the contract. Your part was to sign it, not negotiate the individual terms.

 

Which brings me onto part 2:

 

"Show me the document I signed to request the upgraded vehicle, because all you've shown is that this clause existed in the employment contract, you've never proven that I invoked it lawfully".

 

And part 3:

 

Averring the clause is a penalty clause could be proven if you could prove to the Court that they only invoke it as and when it suits them. An affidavit from an ex employee who didn't get chased or more likely a CPR or AQ request for a statement signed under oath by a director of the company averring that ALL ex employees are pursued for any amounts deemed due under this clause might help you directly or indirectly prove that the company are trying to penalise you.

[m2000]

Good morning all,

 

Thanks for your kind replies, the help is really appreciated

 

I have sent the letter and SOA via email this morning, so will let you know the outcome asap.

 

Thanks again!

M2000

[m2000]

Hello All,

 

More urgent help required if possible!!

 

The solicitors have replied to my offer with the following email:

 

"WITHOUT PREJUDICE SAVE AS TO COSTS

Dear XXXXXXX

 

My Client is keen to try and resolve this matter without the need to attend at court on 17th June.

 

They are inclined to accept your offer to pay XXX per month, providing that that is genuinely all you can afford. However my client would like to satisfy themselves that this is the case, prior to finalising any agreement. To this end would you please provide copies of your last 6 months pay slips so that they are able to corroborate the salary figure provided in your income and expenditure form.

 

I have drafted the necessary consent order that would enable the court proceedings to be stayed, providing that our client is satisfied that the salary which you have disclosed is correct and that payments are maintained.

 

The settlement figure provided is the value of the claim as detailed on the claim form plus the further £35 allocation fee that my client has been required to pay. My Client has not sought to add further interest onto the claim, which they would of course be entitled to if they were successful at trial.

We have been required to pay a further hearing fee of £300 to the court, however this will be returned providing that we are in a position to inform the court that the matter has been settled 7 days before the hearing, that is by Wednesday 9th June. If the matter has not been resolved prior to this date it is likely that my client would seek to amend the consent order to include this figure within the settlement figure.

We look forward to receiving copies of your last six months payslips and your signed consent order by return.

Yours sincerely

 

XXXX"

 

They have also attached a consent order which reads:

 

 

Claim No. 0XXXXXX

IN THE MANCHESTER COUNTY COURT

BETWEEN:-

 

 

XXXXXXXX SERVICES LIMITED

 

 

Claimant

 

 

-and-

 

 

 

MR XXXXXX Defendant

 

__________________________________________­­­­­­­­­­___________

 

 

CONSENT ORDER

 

_____________________________________________________

 

BY CONSENT

 

IT IS HEREBY ORDERED that

 

• The Defendant will pay to the Claimant the sum of £4,957.24 in full and final settlement of this claim by way of monthly instalments of XXXX per month; the first payment to be made on or before 1st July 2010 and the 1st day of every month thereafter.
  

• All proceedings to be stayed so long as the monthly payments are maintained.
  

 

• In the event of default by the Defendant the Claimant shall be at liberty to enter Judgment Forthwith for the amount outstanding at that time by submitting to the Court a Request for Judgment in the form appropriate at that time.
  

• There be no Order for costs.
  

Dated the June 2010

 

We agree to an Order in the above terms

 

 

……………………Signed ...…………………Signed

XXXX LLP Mr M2000

Ref XXXX

 

 

 

What should I do now?

 

I dont really want to provide them with my payslips, does this have to happen? surely the fact that I am offering to pay should be sufficient?

 

Also, the issue of the consent order - is this standard practice?

 

 

What would you do and how would you suggest I respond to this???

 

 

As always, many thanks!!

 

M2000

[honeybee13]

Hi there. I'm no legal expert, but if you're saying your salary won't permit you to pay any more than you've offered, having used their calculator effort, they could be entitled to check that's what you're actually earning.

 

It sounds good that they're making overtures to avoid court, I'd say. Quite a turnaround in their tone.

 

Why don't you want them to see your payslips, btw?

 

HB

[Kraken1]

damn right they are keen to resolve. they only have a 50\50 chance of winning, depending on how persuasive and prepared you are.

 

yes, consent orders (sometimes called tomlin orders) are standard practice in these cases.

 

And it would be reasonable to present them with payslips to prove the figures you have given them.

 

Seems that if you do so, it is all sorted. What is the problem?

[m2000]

Hi there. I'm no legal expert, but if you're saying your salary won't permit you to pay any more than you've offered, having used their calculator effort, they could be entitled to check that's what you're actually earning.

 

It sounds good that they're making overtures to avoid court, I'd say. Quite a turnaround in their tone.

 

Why don't you want them to see your payslips, btw?

 

HB

 

 

Hi HoneyBee,

 

Thanks for the reply.

 

No sinister reason, I just don't want to freely give them personal information such as National Insurance Numbers, Employers address, pension details etc unless I have to. By the sounds of it I have nothing to worry about.

 

Thanks again!

M2000

[m2000]

damn right they are keen to resolve. they only have a 50\50 chance of winning, depending on how persuasive and prepared you are.

 

yes, consent orders (sometimes called tomlin orders) are standard practice in these cases.

 

And it would be reasonable to present them with payslips to prove the figures you have given them.

 

Seems that if you do so, it is all sorted. What is the problem?

 

 

 

Hi Kraken,

 

I was concerned that they were trying to get me to sign something which wasn't standard practice, but from what I am being told on here their request is to be expected, so I will provide them with the info.

 

I still don't particularly like the idea of paying it, BUT i equally don't want to go to court really, so I guess this is the least painless option!

 

Many thanks once again!

[honeybee13]

Hi again. If you do provide payslips, would you be able to blank out the personal details you don't want your ex-employer to have? They already know your NI number of course.

 

HB

[m2000]

Hi HoneyBee -

 

Yes, how stupid of me! of course they have my NI details already!!! *blush*

[honeybee13]

No problem, you have too much detail going around your brain.

 

HB

[Jasper1965]

£25 per month for sixteen years, miss a payment and judgment can still be entered against you for the outstanding balance at any time right up until the final month.

 

Or

 

Defend your corner.

 

I still believe that if they try to pass this off as liquidated damages clause their case is doomed to fail if you argue it represents a penalty.

 

1) The contract was drawn up unilaterally, failure to sign the contract on the employers terms would have led you to incur a financial loss ie not get the job and no legal counsel was sought by yourself prior to signing..

2) No sum was declared payable upon breach. (Voids LD clause in its own right).

3) No estimate was provided either, an illustration yes but it was simply an illustration and if claimed to be an estimate then it was very wildly innacurate and misrepresentative of the actual 'loss' claimed.

4) The oppo counsel are correct in stating that as a LD claim no mitigation etc or proof of damages need be provided up to a point. Their argument falls apart when you reference part 2 above and see that no sum was declared payable as should be the case. Obviously had the clause read "the sum of £x is payable" then there's nothing to argue over so no need for such disclosure. The clause did not specify a sum or reasonable extimate and that alone is probably fatal to their LD claim.

5) the oppo have not referred to this as an LD claim in their POC's and so should be responding to the judge not the defendant with this claim as an excuse for avoiding their CPR responsibilities. It is for the judge to decide whether the claimant is exempt from the burden of proof under an LD clause, not for the claimant to tell the defendant.

6) The clause is not applied equally to all employees therefore invoking it is an act to penalise you in particular. (Sworn statement that company does/does not always invoke this clause can be ordered by the judge).

 

This cannot be a liquidated damages claim, there was no clause specifying a sum due just a vague outline of a random sum which might be payable for a random period of time, that neither the sum illustrated or the period of time over which it was deemed payable have any relevance to the circumstances of this particular claim would cause them more than a small problem in attempting to defend against an allegation of this being a penalty.

 

I know it's not easy for you and you arevery uncomfortable about facing Court but if I were you I'd stand up to their allegations.

 

Worst case scenario is you lose and I don't think you will but if you did then a Judge will only order you to pay what you can afford, and the CCJ drops off your credit files in 6 years. So you'd pay the £25 pm for the 16 years and have a CCJ for 6.

 

Give in to them and you could pay £25 pm for fifteen years then because you retired and your pension doesn't stretch miss a payment and still get yourself a CCJ expiring 22 years down the line.

 

 

The sols are being aggressive towards you because they know that an LIP is more likely to fold, not because they believe they have a cast iron case against you. It's what sols do.

 

Get the monkey off your back and go to Court.

 

If they are in breach of your CPR request then present this to the Court, let the Court decide that it is an LD claim because I've seen nothing other than a speculative claim from the oppo sols to that effect.

If it is accepted by the Court as an LD claim then your defence is that it is a penalty clause and there is much to back up this defence.

If it is not accepted to be an LD claim then they must provide the documentation requested by you under CPR, this gives you a chance to evaluate your chances and make a better informed decision as per the overiding principles. Then and only then if you appear doomed and the a/c has been mitigated fully etc then you should think about a tomlin order.

 

Now is not the time.

 

 

All IMO obviously. Good luck!!

Edited June 3, 2010 by Jasper1965

[m2000]

Hi Jasper,

 

Thanks for the detailed reply - appreciate it.

 

You have got me thinking now!! I would like to defend the case but am just tired of it all now, but I dont fancy years of making monthly payments either!

 

I am unable to get the court date off work now, but I could make a written case as long as it is submitted 7 days prior to the court date? would this be effective?

 

I am not sure what to do now!

[Jasper1965]

Well if you don't go to Court on the appointed day you will lose.

 

If you really can't make it then I think you should get an application in asap, let me have a think about what to put into one for you.

 

Of great importance is the date!!!!!

 

Today is June 3rd ie 14 days before the hearing date of June 17th so your bundle should have been lodged with the Court today.

 

Do you have a bundle prepared? Has it been lodged with the Court?

[m2000]

Hi Jasper,

 

The directions of the court were that documents I wish to use needed to be with them by the 21st May.... I complied to this and sent a few keys documents in, however in my nievity I didn't realise I should have sent a copy of the docs to the Claimant also. Not sure where this leaves me?

 

The documents I submitted to the court included:

 

Copy of the company car policy with a few parts highlighted (ie paragraph stating "ALL persons leaving employment will be liable for o/s contributions"

 

Copy of letters/emails sent to Claimant offering monthly payments to settle (which they had refused earlier in the process)

 

Copy of an online conversation which took place between myself and another ex-employee who wasn't asked to repay her contributions. The script clearly shows her saying she wasn't been asked to repay.

 

So, I submitted the above documents within the prescribed timescales, but didn't send to the Claimant , only the court.

 

It appears that the Claimant hasn't complied and has not supplied documents to the court.

[Jasper1965]

Okay thanks for the clarification. I suggest you copy everything over to the claimant too.