2x 'Cause of Action' ?!! Fraudulent Claim??

[hman]

Hi All,

Am in middle of efforts of defending Claim from local council against my former partner (kids etc)/her business - total over 10K plus 8% interest for amounts due against 4x invoices for years 2008-20012.

 

Partner knew these were wrong; missing several thousand - had tried (by phone) to locate with P'tiff, before business had to close. Informed P'tiff of this, who demanded proof (though paid in correct account) - these were provided. By return came letter/statement; letter demanded original sum/full interest, cited Aug 08 as Cause of Action, then acknowledged/located amounts from receipts we provided, to be found Highlighted upon statement.

 

This amounted to a third of amount of claim. Further, un-highlighted, payments - not listed within Claim - were also listed, made during years of claim. Along with our 'located' sum, this came to more than 50% of total of Claim.

 

The balance sought upon the statement did Not change by a single penny!!!

The method used by the P'tiff to come to this mathematical act of wizardry,after the entry of 20+ varied amounts, entered/'found' Since the Claim was served, was to go back a further 2 1/2 years to Jan 2006 and,apparently, the debit/credits came to exactly that sum ! (and Jan 2006 was a blank sheet - £00.00, though trading for 3 years previously!?).

 

Went to Allocation hearing earlier this week, thinking from form it was for ADR;was not prepared! D/J took statement at face value, listened to P'tiff ('he's a Solicitor, Sir'); my arguement that Cause of Action was 2008/1st invoice on Claim wasn't heard - 'that's for an earlier debt, NOT C of A' - couldn't dig out P'tiff letter quoting Just that. The D/J and P'tiff agreed on Jan 2006 as C of A - I then cited L.A.1980 - statute-barred, which did stop them for a sec, but D/J then said that was a matter for Court.

 

He asked us both for Scott Schedules of payments back to Jan 2006. The P'tiff asked for Sm Claims Court - I pointed out amount was well over 10K; Fast-Track?? D/J said sum didn't matter; gave advice(?) probably best with view of expenses - that's where its going now. Thought I could ask for matter to be struck out, but D/J 'didnt have time to answer questions'(note P'tiff/Def both given Court times 1/2hr later than one posted in Court)

After this, had thoughts that I'd seen D/J had copy of statement, but in B/W - NO highlighted/'acknowledged' sums, and therefore Did he have copy of accompanying letter citing Aug 08 as C of A ?? If not, is this Failure to Disclose /False Representation F.A. 2006? (as might be the statement/'moving of goalposts' - to Defendant?)

 

Have NO idea how to proceed now; finding all payments back to 2006 may be hard. Do I try to serve(?)an application to strike out (F.A. or L.A.) ( Def of F.A. ex turpi causa[/i ] ?), or simply try and find what receipts I can, in now 11 days, send that in, see what P'tiff comes up with, and then......???

 

Didn't think defence had to prove payments etc, Especially for dates outside Claim; we were going to argue the sums within the original Claim; simply cannot understand how there are now, seemingly 2 Causes of Action!

 

Advice on how to proceed Very gratefully received!!

 

hman

Edited January 23, 2014 by Andyorch
Paras added

[Mike_hawk]

Your post takes a while to digest...... if the question is regarding your next step I would think it would be to prepare your Scott schedule based on all data you can lay your hands on.

 

I take it you understand the format for the schedule?

 

The aged invoice values would be a matter for the court to decide on limitation, really depends how the other side suggests it has allocated payments....... aged first would probably sidestep any bar

 

Which track has it been allocated to?

 

Council invoices...... what service did it provide?

[hman]

Hi Mike_hawk,

 

Had to look up Scott schedules; this was an aside from D/J to P'tiff as how he'd understand what D/J was asking us both for, ie list of all payments from us , and list of payments received/debits from P'tiff; pretty well what their statement was, had D/J been aware of input of our (highlighted) payments in the latter years, within the original years of Claim.

Will dig out as much as possible and try to put one together.

 

The Plaintiff asked for Small Claims, the D/J 'encouraged' this, though I pointed out how high the figure Claimed was, so I followed; it's going to Small Claims.

 

With reference to the invoices; they each came from a yearly sum (each the same) for a 'licence to trade' - street stall; the figures sought were balances unpaid against each yearly figure. As said, 5 years of such - 2008 - 2012.

Each one, as received with pre-action letter, had handwritten sum upon it for "

[amount paid/balance due that yearI][/i]" (Actual printed wording upon invoice did not seek "Licence fee", but 'Rent' ?)

There is no amount upon invoices for any previous debt.

 

Last two invoices on Claim ask for full payment for those years, ie suggest nothing paid; as in 1st post, thousands Were paid, proven(to Plaintiff) and then acknowledged.

 

If at all relevant;

proper procedure/protocols not followed; proper 21 day notice of end of licence/right to appeal not given , just an email to stop trading. Formal request for information 'If these amounts accepted, where have they been held/why have they not been entered into ---'s account?' was not answered (others asked were answered). Form N181 sent by us to Northampton and Plaintiff, none received from Plaintiff.

Defendant left for 5x years without proper balance of account and in spite of payments mentioned, DD's from P'tiff increased until trading ceased.

 

As you're Fully aware, I'm a total amateur - have pored over this for months as it's 'wrong' as it stands; didn't think I was dumb per se , but this world takes a hell of a lot of nous, and Proper study! I know it shows I have neither - thanks for your patience.

 

Sincere thanks for the input, apologies for complexity,

 

hman

[hman]

Hi Mike,

 

Re-reading your post, your thoughts on "aged first would probably sidestep any bar" confused me a bit; they've already, within letter, stated that Aug 2008 (1st Invoice/Amount on Claim) is Cause of Action, and then in Allocation asked for Jan 2006 as C of A. If 'aged first' is over 6 years old (7.5 if Jan 2006 accepted) would the L.A. 1980 not come into force?

 

If Aug 2008 is seen as C of A, then 1/3 sum is acknowledged by Plaintiff, with further amounts listed/found to bring that to over 50%.

The totals submitted within Original Claim would be incorrect - struck out? Or a figure/balance from it still due?

 

If Jan 2006 is seen as C of A, is this not automatically statute-barred, as Claim served/entered in 2013?

 

The general idea that a Plaintiff can, within a single claim (against Specific invoices -above), if circumstances change after it is served (ie large payments 'discovered'), then look anywhere/time Plaintiff likes to find the EXACT sum as written upon Claim. Would this not be a separate Claim?

[Mike_hawk]

Schedule should be fairly straightforward in your case if you have its statement to work from, would think all you need is four columns 1. Claimed service provided and date 2. Quantum claimed for the period 3. Your reason/s for disputing that sum 4. Balance you believe due [if any]

 

Small claims track is preferable as it will offer some protection to you against any possible exposure to the other sides costs

 

Really not sure whether the limitation act would affect council service charges or license/rent agreements....... I think you really should be pressing the other side to fully disclose what exactly it is that it believes it is invoicing you for so that you can check how the limitation act does or doesn't compromise aged charges.

 

My thoughts were that if it was attempting to show the court that any credits had been allocated to the more aged invoices it would bring the cause forward to the point that it suffered a loss.. then again, if you made any part payment to an aged invoice in the last 6 years it would move the bar forward in time anyway.

 

The court can and will provide a fair amount of leeway to either party if it feels that it will enable the matter to be decided, it wouldn't be in anyone's interest to have to continually revisit the case and splitting claims is a no no. The judge probably decided on viewing the papers that the period of claim should be amended to enable all matters to be resolved.

 

Perhaps the judge noted something amiss within the other sides particulars and saw something which he felt would bring the claim with the threshold for sct, you rarely get any clues as its for you to show on the balance of probabilities that you don't owe the sum claimed. If you have a record of payments to account it should be fairly straightforward.

 

Was the business in your ex's name [sole trader] or registered co with limited liability?

[hman]

Thanks Mike,

 

Ex was sole-trader.

 

See what you mean about L.A. ; if any payments made against yearly invoices, they're acknowledged as debt; only those over 6 years old would qualify? Cause of Action/Date of Accrual would not come into effect? (Acquiescence, as left this long? Act covering Licences allows 4 weeks non-payment to rescind licence - statement suggests months without payment in 2006)

 

The actual invoices claimed against within proper Claim fall (neatly) within that 6 year bar; balances upon them incorrect, as argued.

 

Service provided argued by ALL stall holders, in that fees are supposedly 'non-profit', for collection and disposal of rubbish and admin of same - rubbish is collected/disposed from stalls And shops alike; how is this divided?? (Another matter.)

 

Did think this would be straightforward, having found these amounts - can you tell me, if SCC accepts dates/invoices used with original Claim, and the amounts accepted by Plaintiff, does this mean whole Claim may be dismissed, or is a balance from it more likely?

 

Reading a Sticky on CPR part 18 v CPR 31.14, was wondering if there's anything I need to get from them - any possible contract(?) is 10 years+ old, issue of 'Licence' is confused; stall-holders pay a yearly sum of £50-£60 for 'licence', but Also over £3k annually for 'licence' - no distinction between the two.

 

Will check OED for 'Quantum' ! !

 

Many thanks indeed - really appreciated.

[hman]

Am continually digging -my own grave?!

 

On 'Other matter' vis Licence Fees, I found this - (L.L.A.A. 1990 Part III)

 

(Fees and charges) of this Act.

Fees and charges. 1) A borough council may charge such fees for the grant or renewal

of a street trading licence under this Part of this Act, the grant of a temporary

licence or for the variation at the request of the licence holder of the conditions

of a street trading licence as they may determine and as may be sufficient in

the aggregate to cover in whole or in part the reasonable administrative or

other costs in connection with their functions under this Part of this Act, not

otherwise recovered.

(2) A borough council may recover from licence holders such charges as

may be sufficient in the aggregate taking one year with another to cover the

reasonable costs, not otherwise recovered, of—

(a) the collection, removal and disposal of refuse or other services

rendered by them to such holders; and

(b) the cleansing of streets in which street trading takes place in so far as

that cleansing is attributable to such trading; and

© any reasonable administrative or other costs incurred in connection

with the administration of this Part of this Act; and

(d) the cost of enforcing the provisions of this Part of this Act.

(3) A borough council may determine—

(a) that charges under subsection (2) above shall be included in a fee

payable under subsection (1) above; or

(b) that they shall be separately recoverable.

(4) A borough council may—

(a) require that every application for a licence under this Part of this Act

be accompanied by the whole or part of the fee determined under

subsection (1) above; and

(b) determine that the fee may be paid by instalments.

 

3(a) finishes with 'or', NOT 'and/or' ; the two Licences charged for by Council don't seem to fit this Act - 1 is yearly 'permission to trade'( or 'part payment'?), other a form of 'rent' ; both called 'Licence'.

 

L.A.1980, Part I, 5 'Simple Contract' had nothing about payments against debts etc. Part I, 10 'Special Time Limit' - Civil Liability was interesting, with 2 year limit, but haven't got head around Civil Liability (Contribution) Act 1978 yet.

 

Unless it's not obvious, months of this and it's showing!!

 

Will leave it here, try to knock up schedule - was advice with THEIR statement, if nothing better Mike? - and see if can find a way of getting some more info from them (as said, didn't answer an earlier Formal Request).

 

Thanks all.

[Mike_hawk]

I think it may come down to how it reconciles its statement of account within its schedule, it may make the suggestion that there was an error within its earlier schedule/statement and infer that all invoices were of a running balance, hence any payment acknowledged the debt. Any question of limitation bar would be decided on the evidence presented at trial and the judges interpretation of who he believed to be the more reliable of witnesses.

 

If you believe [and can hopefully show] that the service provided fell short of the contract then it would be sensible to provide an explanation of this within your scott schedule along with your offer [if any] in response.

 

Not sighted the full particulars or your defence but to be honest I can't imagine there would be reason to strike out, there are clearly triable issues which need resolving, if there are 'mistakes' within its pleading which would throw doubt on the veracity of its statement its certainly something you should question when given the opportunity.

 

Don't believe it will comply with any request by way of parts 18 or 31 now that its been allocated to the sct, by all means serve requests on it and include reference to those requests within your witness evidence at trial. The problem you have is that if it won't comply the court is very unlikely to act of its own volition this far along the line without an application from the defendant.

[hman]

Think it ought to be easily provable that invoices in Claim are not of a running balance, as each invoice is for specific year/balance owed upon.

Can see their statement is portrayed as a running balance.

 

Wondered if an 'Account Statement' such as this, with possible running balance, is feasible if each year would be a set sum/invoiced for that year; would that divide/'book-end' the 'running balance' in any way?

 

Don't know what sort of 'contract' entered to gain initial Licence, nor exactly what services provided for Licence/within Contract; presume those I noted above - failure to inform Defendant of payments and consequential raising of DD's may be a failure of those services?

 

On striking out, I just had the - hopeful - idea that if figures within Claim did not marry up with figures now admitted by Plaintiff, Claim would be erroneous and struck out. Hope springs eternal !

 

Thanks

[Mike_hawk]

 

Will leave it here, try to knock up schedule - was advice with THEIR statement, if nothing better Mike? - and see if can find a way of getting some more info from them (as said, didn't answer an earlier Formal Request).

 

Thanks all.

 

Missed this bit, think we were posting at the same time..... Yes, complete your schedule by reference to their statement. It is after all the other sides statement of account that you are raising points of dispute against within the SS.

[hman]

Thanks Mike,

 

Was caught on the hop by D/J at hearing, about dates and requirements etc - just sight of Plaintiff's solicitor scribbling away woke me up;

figures from 1st Jan 2006 to 31st Jan 2013 - their statement basicallly - all payments made/records of such. 14 days for that (SS)

25th Feb to reply to schedule indicating disagreements//reasons. 14 days further/5th March File court/serve other detailing payments made due/received + calculations. (Think this was where SS was mentioned) . File/serve witness statements (From WHOM?) copy documents for trial. Hearing date to be fixed - Early April?

That's as well as notes have it.Told would be sent a letter with details - none received.

 

Have more proof of dates of -'Cause of Action' as in Claim.

The Claim based on invoices which came with Pre-Action letter. At back of these found a ' Statement of Account', different from the later one going back to 2006, with 'acknowledged' payments.

This has columns; 'Tran Date', 'Tran Ref', 'Lgnd', 'Location', 'Status', 'Orig Value Bal.', and 'Outst, The first two invoices (whole of 2008 start of 09) are entered under the 'status' of 'P/PD' (part paid) [2008 against 'Orig. Value Bal.' of the full years fee] the rest of '09 cites 9x monthly payments 'OUTST'. 2010 cites 11x same 'OUTST'. 2011 and 2012 cite full years fees 'OUTST'.

The proofs of payments provided/'acknowledged' from 2009-2010, not entered here or in Claim, would be the issue of dispute.

This would be coupled with dates upon Claim, Invoices and 'Cause of Action -31st Aug 2008' given in letter with later statement.

Another, smaller,issue is final entry (as on Claim) of DD - this is wrong as against the claimed sum above for full years fee for 2012. Entered here as 'CASH' (?) in 'Legend' rather than 'INV' as rest.

 

Errors in later statement;

The 'perfect' matching of the above Claim to later statement, starting in Jan 2006, is an issue for me - the last entry of a DD is nullified within later statement by entry in credit/debit columns (as are 6x other DD's - not in Claim.) i.e. it is no longer a debt.

 

The credits - 'part-payments' acknowledged within the earlier statement and on invoices attached, are not to be found anywhere within the later statement. For example, 1st 'P/PD' Inv seeks approx 25% of 'Orig. Value Bal.' [Trans Date 30 Jan 08] - 75-80% of Fees due for 2008 therefore Paid [ reason 31st Aug 08 cited?], but not listed upon statement, sent by return of proofs of payments for years of claim. The same for 2nd 'P/PD' Inv, though far lower sum.

This was raised at Hearing, but 'no time' to discuss.

 

Further scrutiny of the latter statement shows that the calculations are wrong;

with no influence from the 'nullifying' of the above DD, the credit and debit columns do NOT come to the sum which matches the invoices/years within Claim. The 'efforts', perhaps, at balancing the much earlier debit/credits, removing the above DD, adding the 'found' payments and still coming to the exact sum have failed, by missing/adding a payment.

'Misrepresentation'?? V odd anyway!

 

Finally, on this, the e-mail prior to Pre-Action, to 'Cease Trading', had a balance; this also missed a further payment.

 

Will try to find an example of SS to double check; take it 'Service Provided' and 'Quantum' are 'debit' columns, 'reasons for dispute' a credit?

 

Thanks again

[Mike_hawk]

Thanks Mike,

 

Was caught on the hop by D/J at hearing, about dates and requirements etc - just sight of Plaintiff's solicitor scribbling away woke me up;

figures from 1st Jan 2006 to 31st Jan 2013 - their statement basicallly - all payments made/records of such. 14 days for that (SS)

25th Feb to reply to schedule indicating disagreements//reasons. 14 days further/5th March File court/serve other detailing payments made due/received + calculations. (Think this was where SS was mentioned) . File/serve witness statements (From WHOM?) copy documents for trial. Hearing date to be fixed - Early April?

That's as well as notes have it.Told would be sent a letter with details - none received.

 

 

 

You should receive an interim order from the court with confirmation of the directions you 'agreed' at the previous hearing..... if you already have a record of the dates you need to comply by it would seem sensible to try to stick to the timetable even if the notice is late being served on you by the court.

 

Draft your own schedule within a spreadsheet so it makes lighter work of chopping and changing in reference to the other sides when it sends you its version of events to counter. Don't over-think it, this really should be kept as straightforward and concise as possible so the judge can see the issues in dispute clearly at first sight of the document.

[hman]

Thank you,

 

Will follow that.

 

As for rest - the 'Devil in the detail' is turning into OCD! Know simplicity required (SS), but the nag that they're trying it on since 'found payments' is grating. A break needed, but clock is ticking....!

 

 

Thanks Again Mike.