Claim Form received. relating to an alleged "contract" I had with a company in relation to a business

[bigegg]

Received a claim form today relating to an alleged "contract" I had with a company in relation to a business which I recently folded.

 

Background is as follows:

I was a sole trader.

The "contract" was basically a reciprocal arrangement whereby a company collected an unwanted by-product from my company.

The basic arrangement was:

The other company supplied transport containers.

I didn't get paid for the by-product.

I didn't get charged for the collection. The company is based about 0.5miles from the unit.

 

I signed a contract in February 2010 which specifically stated "charges: Zero" (don't have it here, so not sure if it's a rolling contract, 12 months fixed, or "minimum 12 months")

I am very confident there is no newer contract (cos I purposely didn't return the new one they sent me last summer )

This arrangement had been going on for about 18 months, when I received an invoice for "goods and services" (in February this year) for around £140

 

Phoned the company, told them what the arrangement was that I had negotiated with the salesman, and that I would not be paying.

The company has tried no other enforcement for this invoice, except sending reminders.

 

Come June, I decided to close my business as the profit wasn't worth the work involved (about 120 quid a week for 60+ hours), so I phoned the company and told them to collect their containers as I was moving out of my unit and had no room to store them.

 

In late august, after phoning the company about 6 or 8 times, and emailing four times, I received an invoice for £200 for "lost profits" relating to the amount of by product which I will not be supplying them with between now and the alleged "end of contract" which is December!!???!!!

 

So, I emailed and wrote to them at the beginning of this month (posted 1st) denying liability for any charges, and giving them 1 week to remove the containers.

 

No answer to my email, but today, I received a claim form for £200 (+£25 costs) from MCOL for "goods/services" dated 3rd October, and appears to have been sent in direct response to my request for proof of the debt, and is ONLY for the newer of the two invoices.

 

I have received NO "letter before action".

The address on the claim form "other address to send payments/documents" has been entered as MY address!

 

I am planning to defend this, but would like some comments on the following plan:

 

Acknowledge service saying "defend in full"

CPR 31.14 for copy of contract, details of what "goods/service" I have been charged £200 for.

Defence is "embarrassed" until I receive contract.

Then defence will depend upon what I get back.

Either there is NO contract,

or it says "zero charge"

or it expired 2 years ago

or...

 

Counterclaim for storage of containers since I asked for them to be removed (in the region of £200 - they took up a car parking space for which I was charged £15 a week).

Counterclaim for costs in chasing up collection of containers + querying invoices (probably around 3 hours x £18 LIP hourly rates - say £60 with postage costs)

 

Vexatious litigation? - if the company had given me a copy of a signed contract which said I was liable for "lost profits" or collection charges (or whatever they're charging me for) then I'd've paid. They seem to have issued the claim as soon as I asked them to prove the debt.

Can I ask for punitive damges? or just my costs if vexatious litigation is "proved"?

 

Then ask for costs of attending court 24hrs before hearing - £5 in busfare, 3 hours travelling + attendance, printing of documents, three hours "research" - £120 in total?

 

 

Should I mention the other outstanding invoice for £140 which is six months older than this one (and which ISN'T included in the claim form)

 

Sorry for the long post, but any help/comments will be gratefully received

[bigegg]

Also , if someone could give me some pointers on how to phrase my defence, i'd be very grateful

[bigegg]

I am in receipt of your court claim ref 2Qxxxxx made via MoneyClaimOnline at the Northampton County Court Bulk, which I have today acknowledged on http://www.moneyclaim.gov.uk

 

Your “particulars of claim” mention a “Signed Service Contract”

Under the Civil Procedure Rules, section 31.14, I have a right to inspect this “Signed Service Contract” referred to in your claim form

Under section 31.15, I have a right to a copy of this document after payment of a “reasonable copying fee”.

I enclose £2 which I consider a “reasonable fee” for copying this document, and posting it to me at the above address.

Section 31.15 of the CPR states that I must receive a copy of this document within seven days of you receiving my request.

If I do not receive this document within the statutory time limit, I will make an application to the court for an order for you to disclose this document – this will incur additional costs for which I WILL seek reimbursement from yourselves.

 

does this look OK?

[unclebulgaria67]

If you can post the particulars of claim (POC) up that would help people reply.

 

The CPR 31 request is for any forms noted in the POC and you would need to make a separate part 18 request to ask any questions relevant to the POC.

 

They should have sent you a letter before action, stating the cause of any court action and how you could put this right, before they issued the claim.

 

You have 14 days to acknowledge the claim and then 14 days to submit a defence. By the sounds of it, the company who completed the MCOL have c*cked it up. They should have provided an address for you make any requests for information.

[bigegg]

POC is as follows:

 

Waste management services provided from 20.12.2010 as per signed contract.

The claimant claims interest under section 69 of the county courts act 1984 at the rate

of 8% per year from xx.08.12 to 2/10/12 on £200 (ish) and also interest at the same

rate up to the date of judgement or earlier paymet at a daily rate of £1.xx

 

No LBA received - claim form appears to have been issued in direct response to my request

for a copy of any contract.

The address the have supplied ("Address for sending documents and payments") is *mine*

And yes - they have c*cked up, cos I've found got a copy of a twelve month (apparently fixed term) contract dated september 2011, which states "FOC" and "N/A" to all charges

CPR31 for copy of contract, and CPR 18 for copy of invoice pertaining to actual charge then?

[andydd]

Peple are supposed to send a NBA but not legally required, in fact there is a whole page of CPR Pre-action protocols ro follow, but IMO most dont bother, you could in theory mention it to the court in an attempt to get costs.

 

i doubt you'd get far with a VEXATIOUS LITIGANT claim or punitive damages.

 

As for storing their container, unless there is something in the contract that says you can claim this cost, it is less likely you can claim a cost for this, unless chasing them for damages where it gets more complex.

 

If genuinelly they have no chance of success it may be worth pursuing the Summary Judgment/Strike Out route ?

 

As for CPR 18 and 31, Im not convinced that they should be used in a small claim, of course, untill allocation it technically isnt a small claim, but it is very likely to be, and many people would point this out to the court and not respond to CPR 18/31 requests.

[bigegg]

Section 18 request added

I would also appreciate a copy of the original invoice – your reference xxxx to which this sum relates, including exactly what “services” the sum relates.

Under CPR section 18, I can request that the court orders you to supply me with a copy of this document. I trust that this will not be necessary.

[bigegg]

Summarary judgement/strikeout -

how do I do this via MCOL?

[bigegg]

The main thing about the containers is, there *is* no contract - after mid september, that I know of.

I'd been asking for them to remove them since beginning of august (actually before then, but first provable).

I negotiated with l/l of industrial unit to store the containers on a parking spot, pending collection, for which he

is invoicing me £25 a week. They were actually collected 4th October.

[andydd]

Summarary judgement/strikeout -

how do I do this via MCOL?

 

This is only to be used when you are 100% certain the other side has no possible claim/or defence, it strikes out the claim at an early satge, BUT if there is any possibilty of a claim/defence it will go ahead as normal and you will be stung by SJ costs (its not on small track at this stage, its nornmally pre-allocation).

 

CPR24 (SJ) is here > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24 and read accompanying Practise Direction.

 

CPR 3 (Strike Out) is here > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part03a

 

It cant be done via MCOL, as MCOL is just for the early initial stages of claim, I believe it can/should be done after claim/defence is in but before allocation.

 

Andy

[bigegg]

I'll leave it for the moment, then, until I receive a reply from my CPR request.

I'm *reasonably* confident of a strike-out, but can afford to wait a week or two.

I'm guessing if the strike-out IS successful, the claimant will be liable for the costs?

[andydd]

A court has the power to strike out of it won initiative, so you can say in your defence you believe it should be struck out but not actually make a strike out application (which would then have costs risks), SJ/Strike out is just a quick way of dismissing cases and put the other side under pressure but there is nothing wrong with having full trial in the normal way.

 

Andy

[bigegg]

CPR request posted out today, so will just wait and see what they come back with.

[bigegg]

Final question for the moment.

Is £2 a "reasonable" sum for having a copy of the agreement posted to me?

I based it on the statutory fee for a CCA request, so I don't think it's "unreasonable".

 

I've also now found my copy of the original signed contract from 2010 - and that says "FOC" as well...

Not sure which smilie to use - smiling, furious, or evil. probably all three...

[andydd]

CPR request posted out today, so will just wait and see what they come back with.

 

Maybe nothing, Ive tried this against my freeholder, he simply replied it doesnt apply to small claims, now it hasnt been allocated yet so technically not a small claim but it will be when allocated, Im deciding what to do next.

[andydd]

Final question for the moment.

Is £2 a "reasonable" sum for having a copy of the agreement posted to me?

I based it on the statutory fee for a CCA request, so I don't think it's "unreasonable".

 

I've also now found my copy of the original signed contract from 2010 - and that says "FOC" as well...

Not sure which smilie to use - smiling, furious, or evil. probably all three...

 

Who is charging the £2 ?

[bigegg]

Me. I included the £2 -

CPR 31.15

© that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.

 

Didn't want to give them any excuse not to send them.

They *are* pretty fundamental to my defence - I have copies, just wondering what they'll come up with.

[bigegg]

just realised - POC claims daily interest rate of £1.xx on £200

 

by my reckoning, £200 x 8% / 365 = 8p? per day?

 

so POC is wrong.

how do I use this to my best advantage?

(as in get most money paid to me for their stupidity )

[andydd]

Me. I included the £2 -

 

Didn't want to give them any excuse not to send them.

They *are* pretty fundamental to my defence - I have copies, just wondering what they'll come up with.

 

Oh yeah, sounds reasonabkle, I believe CPR 31 mentions costs but CPR 18 doesnt and both can apply to documents.

[andydd]

just realised - POC claims daily interest rate of £1.xx on £200

 

by my reckoning, £200 x 8% / 365 = 8p? per day?

 

so POC is wrong.

how do I use this to my best advantage?

(as in get most money paid to me for their stupidity )

 

Not a lot, just point out its wrong in your defence or to the Judge.

[Andyorch]

just realised - POC claims daily interest rate of £1.xx on £200

 

by my reckoning, £200 x 8% / 365 = 8p? per day?

 

so POC is wrong.

how do I use this to my best advantage?

(as in get most money paid to me for their stupidity )

 

 

To work out the amount of interest up to the date you start the claim, you first need to work out the daily rate of interest. Using a calculator do the following:

 

0.00022 x the amount of your claim.

 

This gives you the daily rate of interest.

 

You then need to work out the amount of interest you are owed up to the date you issue your claim. Count how many days have passed since the money became owed to you and multiply that number by the daily rate of interest.

 

For example, if you are owed £1,000, the rate of interest would be as follows:

 

0.00022 x 1,000 = 0.22

 

So, the daily rate of interest is 22p.

 

If the debt became owed to you on 7 March and you are filling in the claim form on 26 April, 50 days have passed.

 

So, 50 x 0.22 = 11.

 

 

The total figure for interest and the amount claimied must be entered in the amount claimed box in the bottom right-hand corner of the claim form. The fee you will have to pay to issue your claim will be based on this figure. Please note the rate of interest depends on the type of claim that you wish to make.

[bigegg]

it's actually 0.000219 x the amount per day

 

or 21.9 x amount (in thousands of £) = interest per day (in pence)

 

so 10,000 is (21.9 x 10) = 219p = £2.19 per day

 

either way, it's NOT £1.50 a day for £200!

 

£200 = 1/50 (or 0.02 x 10K) = 21.9x0.02 = 4p/day

[andydd]

Dont get too bogged down with the interest, it wont really win you any brownie points even if you can show the Judge its wrong, just point it out in your defence.

[bigegg]

no worries.

Had a reply to my CPR request.

Silly sods have sent me the same contract (12 months fixed term) dated december 2010, with FOC and NO CHARGES written all over it.

They sent me a copy of their T&Cs though which says "we reserve the right to charge an waste licence administration fee" (highlighted).

And a copy of the invoice they're claiming for which states "lost material"

 

Will scan them up later tonight for the audience's persusal

[bigegg]

Can't manage to scan the invoice and t&c's - will take them to a friend's if it's desperately important.

 

POC is as follows:

Waste management services provided from xx/12/2010 as per signed service contract.

The claimant claims interest under section 69 of the County Courts Act 1984

at the rate of 8% a year from 31/8/2012 to 02/10/2012

on £200 (ish) and also interest at the same rate up to the

date of judgement or earlier repayment at a daily rate of £1.50 (ish)

First draft of my defence:

 

1. I admit entering a service contract with the Claimant on xx/12/2010
   
2. This contract was for a 12 month period, and thus ended on xx/12/2011
   
3. The contract was for removal of waste books, cardboard, and “mixed film. I used to deliver these items to , where I was told they would buy them for £10 per tonne. The initial discussion with the sales rep in December 2010 said would collect them from me free, as long as I was happy not to get paid.
   
4. The signed contract states “Free of Charge” and “n/a” to charges
   
5. At some time in June 2012, and on several occasions since, both by telephone and email, I have contacted to inform them that I was no longer trading and needed the bins removing.
   
6. On 1st October, I wrote to to dispute two invoices. xx February 2012 for £150. xx August 2012 for £20 and also to again ask them to remove the bins from my landlords premises
   
7. This claim was issued for the second of the two invoices on x October 2012, presumably in direct response to my letter. This is a clear breach of the Office of Fair Trading “Guidelines on Debt Collection”
   
8. I contend this claim is therefore without merit, and I request that the court uses it’s discretionary case handling powers to strike out the claim.
   
9. Interest has been incorrectly calculated. £200 at 8% per year is a daily rate of 4p per day, NOT £1.50 per day.