Suface water and highway drainage charges demands for arrears /United Utilities.

[jofagah]

If any one can assist we need help in clarifying:

• The legality of the arrears claim, can they go back six years and are we legally obliged to pay immediately
  
• The uncertainties surrounding the timing of them becoming aware and the delay of sending the request APRIL - OCTOBER and the change over from sole trader to LTD company in October,Did they only send the demand once we became a LTD company and if so why would this benefit them?
  
• The 12 month ruling with regards to arrears as mentioned on this thread,
  
• Can they bankrupt or issue a winding up order as threatened,
  
• How best to get this into a courtroom without incurring massive legal charges,
  
• As they have accepted it was their mistake for not informing us that we would be liable for this service and apologised accordingly, do they have to take some responsibility for this
  

[MARTIN3030]

"The legality of the arrears claim, can they go back six years"

 

This is the main one-since if it is not the case-then it removes the need to be questioning any of the other points.

[jofagah]

"The legality of the arrears claim, can they go back six years"

 

This is the main one-since if it is not the case-then it removes the need to be questioning any of the other points.

 

Can anyone shed any light on the comment by DX

"i should think they have to abide by the industry guidelines like other suppliers have to -

 

if they have not billed you for such in the last 12mts, then they can only go back 12mts with this type of things".

 

[jofagah]

Ok reading your posts has inspired me to do some digging of my own, I now understand the statute of limitations on debt which appears to be where UU are using the six year clause, however I have come across a statute of limitations for arrears, there are some bits relating to diligence and mistakes, how relevant it is in my case I am not yet sure but there must be stuff out there that can be used in court, as in my opinion UU have a responsibilty to it's shareholders and consumers alike to prevent this sort mistake and in this instance due diligence was not shown.

 

APPENDIX

LIMITATION ACT 1980

1

(1980 Chapter 58)

An Act to consolidate the Limitation Acts 1939 to 1980

[13 November 1980]

PART I

ORDINARY TIME LIMITS FOR DIFFERENT CLASSES OF ACTION

Time limits under Part I subject to extension or exclusion under Part II

1 Time limits under Part 1 subject to extension or exclusion under Part IIFraud, concealment and mistake

32 Postponement of limitation period in case of fraud, concealment or

mistake

(1) Subject to subsections (3) and (4A) below, where in the case of any

action for which a period of limitation is prescribed by this Act,

either--

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has

been deliberately concealed from him by the defendant;

or

© the action is for relief from the consequences of a

mistake;

439

the period of limitation shall not begin to run until the plaintiff has

discovered the fraud, concealment or mistake (as the case may be)

or could with reasonable diligence have discovered it.

References in this subsection to the defendant include references to

the defendant’s agent and to any person through whom the

defendant claims and his agent.

(2) For the purposes of subsection (1) above, deliberate commission of

a breach of duty in circumstances in which it is unlikely to be

discovered for some time amounts to deliberate concealment of the

facts involved in that breach of duty.

(3) Nothing in this section shall enable any action--

(a) to recover, or recover the value of, any property; or

(b) to enforce any charge against, or set aside any

transaction affecting, any property;

to be brought against the purchaser of the property or any person

claiming through him in any case where the property has been

purchased for valuable consideration by an innocent third party

since the fraud or concealment or (as the case may be) the

transaction in which the mistake was made took place.

(4) A purchaser is an innocent third party for the purposes of this

section--

(a) in the case of fraud or concealment of any fact relevant

to the plaintiff’s right of action, if he was not a party to

the fraud or (as the case may be) to the concealment of

that fact and did not at the time of the purchase know

or have reason to believe that the fraud or concealment

had taken place; and

(b) in the case of mistake, if he did not at the time of the

purchase know or have reason to believe that the

mistake had been made.

(4A) Subsection (1) above shall not apply in relation to the time limit

prescribed by section 11A(3) of this Act or in relation to that time

limit as applied by virtue of section 12(1) of this Act.

(5) Sections 14A and 14B of this Act shall not apply to any action to

which subsection

[MARTIN3030]

the period of limitation shall not begin to run until the plaintiff has

discovered the fraud, concealment or mistake (as the case may be)

or could with reasonable diligence have discovered it.

 

Yes this was my thinking at post 22.

 

Nevertheless,this assumes that there is no other regulatory guidance which prevents collection of arrears (As in the case of a consumer) after a period has gone without billing.

 

[MARTIN3030]

There also needs to be a distiction made as you have prev suggested,between the enforcement of collection of arrears criteria for Limited Companies and Sole Traders/Partnerships.

If there is a cause of action for a Limited Company but not a Sole Trader,then there has to be an arguement that pre October 2010,you would not have been liable for that period.

[jofagah]

I wonder if we can use some of the clauses in the statute of limitations for arrears ( especially the one about due diligence ) along with a request as to why it took so long to inform us of this charge once they became aware of it in April and what is the relevance of it being addressed to the Limited company as opposed to an individual as it always has been since 2002

[jofagah]

United Utilities

****

****

****

 

Your Ref : ********

Date 23rd January 2011

 

Dear R.G.

 

In response to your original letter dated 14 October 201,1 although we acknowledge your apology for your companies mistake, we are somewhat surprised at the amount of arrears allowed to accrue and the time in which it was allowed to do so.

In view of the fact that it is your mistake and that you have apologised we are at a loss to understand the next communication, especially given our excellent account history since 2002 with your company, which is a threatening letter from Concilia demanding immediate payment of £5,921.20, in their words it reads :

 

If you do not respond to this letter IMMEDIATELY we will have no option but to assume you are purposely avoiding repayment of this debt, we will advise our client to take further enforcement action against you.

 

This could result in the issue of a statutory demand that may result in

1. United Utilities issuing a Bankrupcy petition against you OR
   
2. United Utilities issuing a winding up order against your company.
   

PAYMENT IN FULL IS NOW DUE

 

PLEASE DO NOT UNDERESTIMATE THE SERIOUSNES OF THIS MATTER

Yours faithfully

 

***********

 

Operations Manager.

 

Due to the serious nature of this situation and the amount of arrears we are taking legal advice on how to deal with the matter.

 

We understand your use of the statute of limitations on debt and the six year clause and are concerned that due diligence in this case has been lacking due to mistakes made by your selves.

LIMITATION ACT 19801

 

(1980 Chapter 58-)

An Act to consolidate the Limitation Acts 1939 to 1980

[13 November 1980]

PART I

ORDINARY TIME LIMITS FOR DIFFERENT CLASSES OF ACTION

Time limits under Part I subject to extension or exclusion under Part II

1 Time limits under Part 1 subject to extension or exclusion under Part IIFraud, concealment and mistake

32 Postponement of limitation period in case of fraud, concealment or

mistake

(1) Subject to subsections (3) and (4A) below, where in the case of any

action for which a period of limitation is prescribed by this Act,

either--

(a) the action is based upon the fraud of the defendant; or

(b) any fact relevant to the plaintiff's right of action has

been deliberately concealed from him by the defendant;

or

© the action is for relief from the consequences of a

mistake;

439

the period of limitation shall not begin to run until the plaintiff has

discovered the fraud, concealment or mistake (as the case may be)

or could with reasonable diligence have discovered it.

References in this subsection to the defendant include references to

the defendant’s agent and to any person through whom the

defendant claims and his agent.

(2) For the purposes of subsection (1) above, deliberate commission of

a breach of duty in circumstances in which it is unlikely to be

discovered for some time amounts to deliberate concealment of the

facts involved in that breach of duty.

(3) Nothing in this section shall enable any action--

(a) to recover, or recover the value of, any property; or

(b) to enforce any charge against, or set aside any

transaction affecting, any property;

to be brought against the purchaser of the property or any person

claiming through him in any case where the property has been

purchased for valuable consideration by an innocent third party

since the fraud or concealment or (as the case may be) the

transaction in which the mistake was made took place.

(4) A purchaser is an innocent third party for the purposes of this

section--

(a) in the case of fraud or concealment of any fact relevant

to the plaintiff’s right of action, if he was not a party to

the fraud or (as the case may be) to the concealment of

that fact and did not at the time of the purchase know

or have reason to believe that the fraud or concealment

had taken place; and

(b) in the case of mistake, if he did not at the time of the

purchase know or have reason to believe that the

mistake had been made.

(4A) Subsection (1) above shall not apply in relation to the time limit

prescribed by section 11A(3) of this Act or in relation to that time

limit as applied by virtue of section 12(1) of this Act.

We are also curious as to the reference to us as a limited company which only started in October 2010, what is the difference between Limited companies and Sole trader, is there a different criteria for the enforcement of arrears ? If there is a cause of action for a Limited Company but not a Sole Trader,then there has to be an arguement that pre October 2010 we were not a Limited company.

 

In view of the fact that pre October 2010 we had no knowledge of this service charge and that you by your own admission first became aware of this on 19 April 2010 we would like the opportunity to question the legality of your demand.

 

Your faithfully

 

 

****** ********

[jofagah]

Just need to piece it together like a jigsaw, I understand the corporates use their own in house legal teams to go over every minute detail, We would appreciate any input and other obscure legal jargon we can

[MARTIN3030]

Ok-have flagged this up for site team.

I am up to speed on section 32c in respect of how it can be applied to address bank and credit card charges that fall outside 6 years,since I have used it myself.

The precadent that fits the bill for this is Kleinwort Benson -v-Lincoln City Council.

But in this instance here with yourself,United Utilities are not claiming outside of 6 years,they are seeking a cause of action WITHIN it.

[jofagah]

The business in question is suffering the worst effects of the recession, it has now reduced operating hours and only opens from 4pm Mon-Fri it has a huge overdraft and is in a long term plan to bring it back to stability and reduced overdraft/overheads so an unexpected bill for almost £6k is without doubt going to be the nail in the coffin.

This is simply a damage limitation excercise against a mistake made by a Corporate company that should have show a duty of care and due diligence.

[jofagah]

Martin,

 

thanks we really do appreciate your efforts

[MARTIN3030]

Also I am not sure whether your response to them actually needs to be too detailed.

 

Your Ref : ********

Date 23rd January 2011

 

Dear United Utilites,

 

We refer to a letter (copy enclosed) dated 14th. October 2010,in respect of the above account.

 

Your agent Concilia,whilst apologising for United Utilities mistake,in failing to issue appropriate billings for amounts it is claimed were due previously,has nevertheless failed to indicate or inform as to what statute law or regulatory codes allow collection of the alleged arrears.

 

I was extremely distressed as a customer of United Utilities since 2002 and having always maintained the account within good management fashion,to read the tone of the letter,and the suggestions made therein.

 

It is noted,that this demand for arrears from 2004,appears to have been raised on or around the same time that formation of the Limited Company was done.

Can you please indicate as to whether there is any material difference in pricing or policy in respect of a Limited Company and non Limited company,whilst having regards to any arrears that are immediately due,or can be challenged under the statute of Limitations Act 1980.

 

As a litigant in person with no professional training,or access to the resources of a company such as United Utilities,It is reasonable that I request that you furnish me with answers to these questions.

 

In any legal proceedings,a Court expects that both parties engage in dialogue,and attempt to resolve matters before wasting valuable Court time.

I trust that you will be familiar with these expectations and protocols.

 

In the absence therefore of United Utilities being able to properly demonstrate and substantiate that these arrears are in fact due and payable,it is denied that they are.

 

I avere that United Utilities has a duty of care in both its services and billing processes to its customers,and should exercise and maintain due dilligence,in fair business practices.

 

I would appeal to you instruct any third parties to cease these recovery demands and instead furnish me with some answers,in consideration of your responsibilities in upholding subscribed codes of practice.

 

I look forward to your positive response.

 

 

Yours Faithfully

 

 

**************

[MARTIN3030]

let me check out Concilia and see exactly who they are

[MARTIN3030]

 

Water-rip-off V Concilia‎ -

[MARTIN3030]

Licence Number:0479205

Licence Status:Current

 

Current Applicant / Licensee:

 

Business NameCompany Registration Number United Utilities Water Plc2366678

 

Categories:

 

Consumer credit Provision of credit information services, excluding credit repair

 

Right To Canvass Off Trade Premises:No

 

 

Trading Name(s) (Historic):

 

United Utilities United Utilities Water

 

Issued Date: 08-Dec-1999

Date Maintenance Payment Due: 07-Jan-2015

 

 

Legal Formation:

 

Body Corporate (incorporated inside UK)

 

Current Individuals that run the organisation:

 

NamePosition Deborah Elizabeth Morton Greame Lindsey Sims John Russell Houlden Matthew Reginald Wright Michael CarmedyDirector philip Nevill Green Professor Paul William Jowitt Richard Bird Steven Richard Fraser

 

Historic Individuals that run the organisation:

 

NamePosition Brian William HurdOFFICER Bryan Gray Charles CornishOFFICER Christopher John Brook Clive Harry ElphickOFFICER Colin SouthOFFICER David Paul Hosker Deborah Elizabeth MortonOFFICER Derek GreenOFFICER Gary John DixonOFFICER Graeme Lindsay Sims Henry Richard CroftOFFICER Ian James McAuley James Miller Perrie Jeffrey LangOFFICER John Anthony BarnesOFFICER John Edward RobertsOFFICER Keith Malcolm BudingerOFFICER Leslie William DawsonOFFICER Martin Frederick BradburyOFFICER Martin Geoffrey BeesleyOFFICER Matthew Reginald Wright Mr Robert James FergusonOFFICER Mr Simon George BateyOFFICER Patrick Eugene McCloskeyOFFICER Paul Anthony DaviesOfficer Paul Williams Jowtit Philip Nevill Green Phillida Gail Sinclair EntwistleOFFICER Richard Biro Richard George BradburyOFFICER Robert Charles EmersonOFFICER Robert David ArmstongOFFICER Rodger Roydon FordOFFICER Roger Roydon FordOFFICER Stanley William ChaplinOFFICER Steven BeaumontOFFICER Steven Richard Fraser Thomas Stephen Keevil Timothy Michael RaynerOFFICER Timothy Peter Weller Timothy Peter WellerOFFICER

 

Nature of Business:

 

Other

 

Current Address(es):

 

Address TypeAddress CorrespondenceHaweswater House, Lingley Green Avenue, Great Sankey, WARRINGTON, Cheshire, WA5 3LP, United Kingdom Principal Place Of BusinessHaweswater House, Mere Business Park, Lingley Green Avenue, Lingley , Great Sankey, WARRINGTON, Cheshire, WA5 3LP, United Kingdom Registered OfficeLingley Green Avenue, Lingley Mere Business Park, Great Sankey, WARRINGTON, WA5 3LP, United Kingdom

 

 

LETTER NEEDS TO GO THERE-RECORDED DELIVERY.

[jofagah]

From what I have learned Concilia are merely an in house debt division and not a legally recognised debt collection agency, the original letter in October notifying us of the arrears and with the apology actually came from the customer care department of United Utilities hence my letter

[jofagah]

WoW how do you do that, it is very detailed !

[MARTIN3030]

Have you got a postcode for Concilia ?

[MARTIN3030]

From what I have learned Concilia are merely an in house debt division and not a legally recognised debt collection agency, the original letter in October notifying us of the arrears and with the apology actually came from the customer care department of United Utilities hence my letter

 

Yes since they are not listed on UU CC licence then they have no rights to collect debt.

Probably are based on the next desk to customer services............

[jofagah]

Only other post code I have is WA5 1AQ United Utilities

[MARTIN3030]

Anything further on this ?

Did you call Ofwat for their take on it ?

[jofagah]

I have sent letters and emails to various departments @ UU and now will await their response before deciding next move

Thanks for your continuing interest and support

[MARTIN3030]

No problem.

As I suspected,the general consensus is that they are trying this on.

If it can be shown that they have indeed exceeded their remit....then they should be taken to the cleaners....and not one that relies on water !

[jofagah]

OK here is the response from UU !

I have omitted personal details for obvious reasons

From: United Utilities, Customer Relations Department

Sent: 1 February 2011

To: **************

Subject: Your Response from United Utilities: Back dated charges

Dear Mr ********

Thank you for taking the time to contact us through our website on 25 January 2011. I am sorry that you have had to contact us regarding your back dated surface water highway drainage charges.I would have liked to have discussed this matter with you today by telephone, unfortunately, when I called you were unavailable, therefore, I am replying to your complaint by email.

I understand that it has only recently come to light that we have not been billing you for a service that we have been providing since you first occupied. We have therefore back dated surface water highway drainage charges in line with the Limitation Act 1980. For non-household customers, given that you will have commercial awareness the adjustment period is 6 years in keeping with the Limitation Act

(and not to 27 November 2002 when our records show you first occupied).

We have sent a bill for £5,921.20 dated 4 November 2010 for surface water highway drainage charges covering the period from 19 April 2004 to 31 March 2011. We are in the position to offer you a discount if you were to pay the bill in full. The maximum amount we can offer is 24 per cent for the charges of £4,708.24 from 19 April 2004 to 31 March 2010. We cannot include charges of £ 1,212.96 for this current financial year (1 April 2010 to 31 March 2011) as back dated charges. The maximum discount we can therefore offer is £1,129.97 (£4, 708.24 x 24 per cent). To qualify for this discount you will need to pay £4,791.23 in full and final settlement (£5,921.20 - £1,129.97). If, you do this then please contact me on 0845 309 3003 and I will arrange for the discount to be authorised by a Senior Manager normally within 10 working days.

If you are not in a position to pay in full then I will be willing to set up an extended payment arrangement with Concilia on your behalf. You are entitled to the same amount of time back to repay these charges as it has taken us to bill you. Therefore, we can spread your repayments over a 6 year period. I have placed a temporary hold on your account until 15 February 2011 to allow you time to arrange payment with me. Please therefore disregard any correspondence which crosses with my actions today.

So to conclude, I am sure that you appreciate that it is only fair to all our other customers that we bill you for the services that we are providing. I therefore confirm that your surface water highway drainage charges are correct and due for payment. I do fully accept that you have continued to pay for your metered charges and confirm that your only outstanding bill is your most recent of £308.79. This bill is for metered charges billed from 13 October 2010 to 20 January 2011 under account ************.

I will finally take the opportunity to assure you that there is no difference in our pricing or policy in respect of Limited or non Limited Companies.

I have replied to you in line with Stage 1 of our complaints procedure. If you would like any information about this reply, please call me on 0845 309 3003 (Select Option 2). Our office is open Monday to Friday from 9.00 am to 5.00 pm. Alternatively, If you would prefer to contact us by email please use the

‘Contact Us’ facility on the United Utilities website as the email address this reply is sent from does not accept incoming emails.

I trust the information provided will be of assistance to you. For a copy of our complaints procedure, please click on this link http://www.unitedutilities.com/Documents/Our_complaints_procedure.pdf.

Yours sincerely

***** ****

Case Owner

Customer Relations Department