Defending claim for Breach of Contract - ***Summary Judgment awarded and claim dismissed***

[Verns]

Hi, I’m new to this forum and seeking advice for a friend. I am not a lawyer, but ran a housing advice service for some years so have a smattering of legal knowledge, which is why he turned to me for help.

 

I apologise for the length of this post, but it made sense to me to set it all out as fully as possible.

 

In July, my friend, a gifted craftsman, received a ‘Letter Before Claim’ from a business rival. In 1998, my friend had bought a few items from this man - reproductions of original Arts & Crafts pieces. He bought these for his own personal enjoyment, but is now being accused of copying them and selling them on his own website. He hasn't done so, because the pieces HE produces are copies of publicly available items in museums, reference books and private collections. They are clearly sold as reproductions. To me, the rival's copyright claim is nonsensical because he doesn't own the intellectual property rights to the pieces he produces. It's like painting a reproduction of the Mona Lisa, but preventing anybody else painting their own copy.

 

However, my friend signed an order form when he bought these pieces 14 years ago that states "I accept that a condition of ordering is that I will not copy (either exactly, closely, or 'in the style of') the pieces ordered h/w or featured in our information sent to you, under your own name or any name used by yourself, or allow a third party to do so. Breaking of this condition may result in legal action to defend our work." It is this order form that the rival insists is a contract, and that my friend is in breach of this clause.

 

My friend sought (expensive) legal advice and wrote back to the business rival, refuting the claim in detail, stating clearly that there is no legal case to answer. So then the business rival issued a claim in the County Court. The claim is for £4,995 (plus £100 costs), which I think means he wishes it to be heard in the Small Claims Court. He said in his original letter 'If I have to take it to a higher court I will claim 3 - 5 times this amount (which I view as a more accurate reflection of the losses I have suffered due to your breach)'. But he also has an extraordinary long list of other demands which, while not having a nominal monetary value, would ruin my friend (or that is how he sees it). These include:

 

· To stop producing Arts & Crafts reproductions that are in any way similar to his own reproductions (about 15 individual items);

 

· To issue a public apology (to be drafted by the rival) on his website explaining what has happened and the outcome, such apology to remain there for 14 years;

 

· The same apology to be sent to everyone on my friend’s mailing list;

 

· A link to the rival’s website as the first link on his weblinks page, such a link to remain there for 14 years.

 

The expensive intellectual property rights lawyer would charge so much to defend this case that it just wouldn’t be worth fighting it, particularly as I understand you can’t claim costs in a case heard in small claims court. So we’re struggling to deal with it ourselves.

 

We have applied for a summary judgement on the following grounds:

 

· The plaintiff does not have an active case as the alleged contract was created in 1998 and has passed the 6 year deadline within which Mr xxxx is entitled to lodge a claim under the rules of the small claims court.

 

· The contract document to which Mr xxxx refers is in fact an order form that has been signed only by my friend and not signed by Mr xxxx or witnessed by a third party and as such could be argued as invalid and not a legally binding contract.

 

· With reference to term 7 of the document that Mr xxxx refers to as a contract, term 7 does not state a date or deadline until which the term applies nor provides any detailed explanation of the consequences of acceptance of the condition that could be faced upon signing the document. As such, at the time of signing the supposed contract was misleading and provided insufficient information to enable anybody to rationally or knowingly enter into a legally binding contract.

 

· The items for sale on my friend's website are reproductions of original copyright-free Arts & Crafts designs and/or items and not direct copies of the items he purchased from Mr xxxx in 1998, which are themselves reproductions and not subject to copyright. He is an enthusiast of Arts & Crafts and well known within the Arts & Craft Movement for the specialist work he does.

 

· The approach taken by Mr xxxx is aggressive and threatening, demanding that unless he receives an out of court settlement of £5,000 he will take my friend to court. He has found this particularly upsetting and intimidating and this disregards the legal system in which the defendant is entitled to put forward his defence in the first instance and exercise his right to mediation (offered by the small claims court) in an attempt to settle the matter amicably and avoid the matter going to court. As a result of this a great deal of anxiety and costs seeking legal advice have been incurred, as well as the cost in time, in an attempt to settle the matter as quickly and amicably as possible with the minimum of cost.

 

· The value of the items that Mr xxxx sold in 1998 amounted to £725, which sum was paid in full at the time of purchase. Mr xxxx's request for a monetary award of £5,095 is inflated and unreasonable and he has no evidence to back up the calculations he is presenting.

 

We have now heard that the case has been assigned to the local county court and my friend has received a Notice of Hearing. This says ‘When you should attend’, so I rang to seek clarification of the need to be present for this hearing. Apparently, yes – ‘When you should attend’ means ‘You should attend’. I am a little confused about this, since my understanding was that no further oral testimony can be heard at SJ hearings?

 

My friend has been incredibly distressed by this whole business. His wife suffers from ill health and both of them have been simply pole-axed by this man’s actions. They are very unworldly people and are just bewildered by the complexities of the case. I think it’s a simple attempt at restraint of trade by this rival – my friend is very well respected in this niche field as a gifted craftsman and it is to him that museums are turning for help, rather than the rival. He has told a few key people in this field about the case and they have been wonderfully supportive with written statements about the respect with which he is held and the copyright-free nature of the Arts & Crafts work that he reproduces.

 

Basically, we just want this thing to go away as quickly as possible to minimise the distress they are experiencing.

 

I would really appreciate your advice on the following:

• Is there a need to attend the SJ hearing?
  
• Can I attend as well, as supporter and adviser?
  
• Is there any chance of counter-claiming for the costs already expended defending this malicious case? I did mention in the application that it has so far cost my friend £1,260 in legal fees.
  
• Should we try and keep it out of the small claims system? Actually, do we have any choice or is it wholly up to the judge?
  

I apologise again for the length of this post. Thank you to anybody who managed to read it all and thank you even more if you can help allay our fears.

Edited September 24, 2012 by Verns

[wonkeydonkey]

If you, have been served a claim then the best way forward is to complete an Acknowledgment of Service in which you outline your intention to defend and counterclaim...the claimant will get notice of your intention to defend/counterclaim. Next you will need to submit a 'statement of case' this is a brief explanation to why you dispute the claim and you outline the counterclaim.

 

You will then receive an allocation questionaire....this when completed and returned allows a Judge to overview the aspects of the claim and decide which track it will be heard in, as it is under the limit for fast track it would likely be heard in small track, at this juncture he can allocate the claim and give directions to CPR or send the claim to mediation (giving a date for hearing should that fail) or decide on an allocation hearing to determine exactly what the claim is about and what documents will need to be provided along with a timescale for defence and reply to it etc to be submitted.

 

It is not impossible but, highly unlikely a Summary Judgment will be accepted before the Judge has been given all the 'evidence' for this basically is you saying, 'I am right.... he is wrong and we don't need a trial ,just take my word for it'......sadly it doesn't quite work like that, the claimant has a right to be heard as do you and, a Judge usually wants to hear both parties in person.

 

WD

Edited September 25, 2012 by wonkeydonkey
punctuation

[Verns]

Thanks, WD - I really appreciate your taking the time to respond.

 

The application for summary judgment is not arguing the evidence (well, not much), but the legal grounds under which the whole wretched case has been brought. Primarily, the order form my friend signed was in 1998, more than six years ago, so we believe it is out of time. Isn't this simply a procedural argument that, if true, would stop the case dead in its tracks?

 

We threw in two other major points of law - that one person signing an order form doesn't create a binding contract; and that you can't own the intellectual property rights to something you have yourself copied. These last two points may be something that should/could be argued in court, but we felt it was worthwhile throwing it in, since these are also general points of law and not limited just to this case.

 

Do you know if we have to attend the SJ hearing? I gather that no further oral evidence can be presented as this is not a trial, so I am not sure why we have to be there.

 

Also, my friend is quite frail mentally and this business has pole-axed him. He wants me there to support him, but we are unfamiliar with court proceedings, so don't know if it would be allowed. Do you know?

 

Thanks again for your help.

[Verns]

Oh, I should have added that, when my friend received the original notice from the courts that the claim had been made, we sent back the form asking for more time. He got more legal advice and we decided to apply for a summary judgment, which we did. The courts have therefore stayed proceedings while the judge considers that application.

 

I imagine that, should we be unsuccessful with the SJ, we will then receive the allocation questionnaire and take it from there.

[wonkeydonkey]

Like I said in #2 not impossible to get a SJ but IMHO (without seeing the paperwork) unlikely...you will indeed just have to sit it out and see how the Judge wants to proceed and take it from there.If you do receive the aq and need further help the good caggers will help you.

 

WD

[Verns]

Hi, I just wanted to pop on here quickly and say thank you for the replies I received to my initial query. The hearing for our application for a summary judgment happened today and the judge dismissed the initial claim against my friend. *dances a happy dance*

 

Basically, the judge felt that the 'out of time' point had merit and that, even if it didn't, the clause in the order form was poorly drafted and unenforceable. He sort of sympathised with the claimant that his business had suffered as a result of another craftsman being on the scene, but that didn't constitute a legal ground for taking action and therefore he agreed that the case was without merit and would fail in court.

 

Anyway, just wanted to let you know, since I understand that summary judgments are rarely granted. Thanks again for being here.

[AndyOrch]

Well done Verns

 

Did you ask for Costs in the case?

 

I have amended your thread title to reflect your result.

 

Regards

 

Andy

[Verns]

We mentioned the costs issue in the SJ application but only in a half-hearted way; my friend was more interested in making the claim go away. The judge hummed and hawed and, in the end, decided not to award costs, I think because he was throwing a sop to the claimant. To be honest, we really struggled to understand the procedural stuff, so probably didn't do it properly, but my friend really doesn't care - he's just glad to be able to get on with his life without fear that his whole business would be in jeopardy.

[AndyOrch]

Thats all that is important.

 

Andy