Goosedale WEDDING VENUE REFUSING REFUND *** Settled by Tomlin Order***

[Andyorch]

https://www.gov.uk/government/publications/cma-to-investigate-concerns-about-cancellation-policies-during-the-coronavirus-covid-19-pandemic/the-coronavirus-covid-19-pandemic-consumer-contracts-cancellation-and-refunds

 

https://www.gov.uk/government/publications/cma-to-investigate-concerns-about-cancellation-policies-during-the-coronavirus-covid-19-pandemic

[Andyorch]

How did you make payment ?   Please dont state bank transfer...credit card ?

[Andyorch]

Then start the process.....draft out a letter of claim stating your position and what you require using the relevant legislation I have provided...not too lengthy..allowing them 14 days to respond.

 

May also be worthwhile registering a complaint with the FOS.

 

https://www.financial-ombudsman.org.uk/businesses/complaints-deal/banking-and-payments/disputed-transactions

[Andyorch]

Along with the coronavirus legislation you will also have to refer to the following.

 

 

https://www.consumeractiongroup.co.uk/forum/366-the-consumer-contracts-regulation/

 

https://www.consumeractiongroup.co.uk/forum/332-the-consumer-rights-act-2015/

 

https://www.legislation.gov.uk/uksi/1999/2083/contents/made

[Andyorch]

Yes I have to agree with Bankfodder...your particulars are far too much in depth...plus you will be restricted to 1080 characters anyway... It will form the basis of your witness statement further into the process..but for now less is more.

 

Initial particulars should be succinct and brief....stating your position... brief details the dispute...the date.... and how much you are claiming.....plus interest.....anything further you are simply giving the defendant detail to use as their defence...and later their statement of case.

 

I would go with the suggested particulars by BF.....its for them to explain why they think they are exempt from complying.

 

Andy 

[Andyorch]

So like wise you could say why did they accept payment from someone not party to the contract......anyway its easy resolved if they wish to play games......but it will involve a fee of £100 N244.

 

 

Transfer of interest or liability

5.1  Where the interest or liability of an existing party has passed to some other person, application should be made to the court to add or substitute that person³.

5.2  The application must be supported by evidence showing the stage the proceedings have reached and what change has occurred to cause the transfer of interest or liability. 

(For information about making amendments generally, see Practice Direction 17.)

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part19/pd_part19a

 

 

[Andyorch]

Contracts and third party rights

Even where your client is not a party to a contract, they could, in certain circumstances, be liable for obligations under it, or might be able to use it for their benefit. Their position in relation to the contract will be determined by:

1. •the common law doctrine of privity of contract and the exceptions to it—see Practice Note: Third party rights—the common law doctrine of privity of contract
2. •the Contracts (Rights of Third Parties) Act 1999, which is, in effect, a statutory exception to the doctrine of privity of contract—see Practice Notes: Third party rights—the Contracts (Rights of Third Parties) Act 1999

https://www.legislation.gov.uk/ukpga/1999/31/section/1

[Andyorch]

Privity of Contract

The Contracts (Third Party Rights) Act 1999 changed the law of privity of contract.

Third parties may now enforce the terms of a contract where:

• an express right has been granted to do so in the agreement, or
• the contract confers a benefit to a third party.

"Confers" in this context means one of the purposes of the transaction (rather than one of its incidental effects) was to benefit the third party: Dolphin Maritime v Sveriges Angartygs (2009).

 

https://hallellis.co.uk/third-party-rights-clauses/

 

 

Contracts (Rights of Third Parties) Act 1999, which provides a statutory exception to the common law doctrine of privity of contract, thus allowing contracts, which fall within its scope, to be enforceable by third parties on whom they confer a benefit.

[Andyorch]

Responding to your PM.

 

For simplicity it would be easier to simply add a 2nd claimant rather than argue the Law on Third Party and hope the court agrees.

The defendant has now submitted its defence denying the claim for the reasons stated....its really is a big gamble should the court not agree because they will have no defence to rely on should the claim proceed.

 

You could even consider making application to strike out the defence and request Summary Judgment....because if your claim is accepted and deemed that you are entitled to make the claim ...the defendants defence becomes none compliant with CPR 16 .5.

 

In particular ....(5) Subject to paragraphs (3) and (4), a defendant who fails to deal with an allegation shall be taken to admit that allegation.

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part16#16.5

 

Alternatively a " Change of Parties "  may be a simpler option.

 

Changes of Parties

General

1.1  Parties may be removed, added or substituted in existing proceedings either on the court’s own initiative or on the application of either an existing party or a person who wishes to become a party. 

1.2  The application may be dealt with without a hearing where all the existing parties and the proposed new party are in agreement.

1.3  The application to add or substitute a new party should be supported by evidence setting out the proposed new party’s interest in or connection with the claim.

1.4  The application notice should be filed in accordance with rule 23.3 and, unless the application is made under rule 19.2(4)¹, be served in accordance with rule 23.4.

1.5  An order giving permission to amend will, unless the court orders otherwise, be drawn up. It will be served by the court unless the parties wish to serve it or the court orders them to do

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part19/pd_part19a

 

A lot to consider.....see what other suggest.

Andy

 

 

 

 

 

[Andyorch]

I would hold with the application for now and wait until @Bankfodder responds and see if he is in agreement..

 

Hold the application for SJ/SO until you have the addition in place.

 

You will have to complete form N244 the fee will be £100 without a hearing...then request the order as per your post.You will have to explain the reason for addition 

 

1.3  The application to add or substitute a new party should be supported by evidence setting out the proposed new party’s interest in or connection with the claim.

 

So you state that the defendant has denied the claim on the grounds that I the claimant are not party to the contract.

 

Dont do anything until the morning.

[Andyorch]

You have not yet received your Directions Questionnaire or submitted ?

[Andyorch]

1 hour ago, BankFodder said:

Okay, on this basis I don't think you need to file a form N244. It's clear that they're not raising any objection if you wanted to add your daughter as a second claimant, but more importantly, they seem to accept that you are a beneficial third party under the 1999 Act. Although they say it's a matter for the judge – and which it clearly is – but they are not raising any objection.

In fact I have to say that they seem to be behaving quite decently on this particular point.

 

I would think you still have to submit an application..with or without their consent.

 

Addition or substitution of claimant

2.1  Where an application is made to the court to add or to substitute a new party to the proceedings as claimant, the party applying must file:

(1) the application notice,

(2) the proposed amended claim form and particulars of claim, and

(3) the signed, written consent of the new claimant to be so added or substituted.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part19/pd_part19a#2.1

 

[Andyorch]

But then their defence becomes void because they have not been provided opportunity to amend their original defence. ? Unless they make application to amend their defence ?

 

If neither happens then an application for summary judgment could be made as their defence is not CPR 16 compliant ?

[Andyorch]

In the letter you sent to the defendant it states .....

 

  Quote

However, in order to put the matter beyond doubt, I am making an application to the court to add my daughter as a party formally to the litigation in the event that the court considers that I should not be treated as a class of beneficiary as contemplated by the 1999 act.

I am writing to you as a matter of courtesy to inform you that I have prepared this application and I shall shortly be filing it with the court. I think it is beyond doubt that the court will agree and so the purpose of this letter is to ask you if you will consent to this order being made which will save time and expense to all parties and also a great deal of inconvenience to the court.

I’m preparing to file the application notice with the court next Monday 19 October 2020. If you agree to the order then I shall inform the court that the whole matter is by consent. In fact it would be easier in that case if you would simply indicate that you have lifted any objection to me being considered as a third party under the 1999 Act.

If you decide to maintain your objection then I shall be filing my application notice with the court and also a copy of this letter.

Expand  

 

The defendants response states that they have no objection to the claimant being involved with her daughter on a legal basis.

They did not state and this could be taken as inexperience in litigation, that therefore they should be allowed to amend their defence and will await the court  directions on re serving the claim...which is what would happen if the application went ahead.The application would allow the daughters addition and it would also allow for the plead particulars to be slightly amended to incorporate that this claimed is being made pursuant to The Third Parties Rights Act...then you all bases covered.

 

So if no application is made..after informing the defendant they will be making an application...nothing changes and we are back at square one.The particulars do not refer or plead to a claim vis a Third Party Rights Act...the claimant is not party to the contract and the defence stands as is.

 

The fact that they have given consent and agreed there is a connection between parties within their response is irrelevant as far as the court are aware ...nothing as changed from the claim or defence.

 

In response to the points raised.....

 

  Quote

If they make an application to amend the claim and to add a second claimant, then that gives the defendant an opportunity to amend their defence and maybe to pull in other issues. Correct that is the process but at least the errors have been corrected and the claim will stand on firm legal points.Far better than the court agreeing with the defence ? 

If there is simply a tacit understanding that she is suing under the third parties act – and they seem to have consented to that – then there is no formal opportunity to amend their defence and it goes to the court simply on the issue of frustration. But the particulars do not plead same and whatever is agreed and consented off record is irrelevant They've already provided a letter saying that they agree that the contract is frustrated. Yes but they have not stated that within their defence and could be deemed as hearsay

I don't understand why if they simply said to the court that they were 1/3 party under the 1999 act and that this was agreed by the defendant, that the defendant would then be given a formal opportunity to amend the defence. They may but that is not stated within the particulars at present and you are banking on a judge agreeing and allowing either an amended defence which is unlikely to happen once it gets to trial or striking out the claim because they are not party nor have they plead within its particulars that the claim is pursuant to the Third Party Rights Act.

Expand  

 

That,s my take on it.....the defendants consent only affects whether the application is with or without a hearing..their consent is not required to add a second claimant.For the sake of a £100 Application if you dot the I and cross the T...the claim proceeds without the uncertainty that they may successfully defend on technical loop hole or the claimant will succeed because the DJ is in a good mood and agrees. 

 

Andy

[Andyorch]

I will post a draft N244 and Draft Order later......

[Andyorch]

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/732360/N244_web_0818.pdf

 

N244 Draft Order Amended Particulars.pdf

 

 

[Andyorch]

Why has the value changed ?   Your daughter can be listed as New name ( Nee xxxxxx).

You need the letter of consent from her to add as you have stated within the order.

 

At 10 …..

Pursuant to Practice Direction 19 ( 2.1 )
2. The proposed amended claim form and particulars of claim, and
3. Please see attached the signed written consent of Mrs xxxxxxx as proposed 2nd Claimant and consent of the Defendant in making this application.

[Andyorch]

Couple of errors on your N244...not sure why you couldn't save a copy...move your mouse to the side and right click ...save as.

 

Dont complete anything in 6..my 30 mins was an error...as its requested without a hearing..

 

9a should be left blank (it states other than the claimant /defendant).

 

Staple the Draft order to the n244 along with the 2 letters of consent.

 

On the draft order remove the Amended particulars ..that was just for your benefit when you get to the next stage and the court asks you to resubmit amended particulars.Also there is an error in the amended particulars...should state " The leading Claimant " not The principle claimant.

 

Quote

 can ii add that she gives me permission to represent her in court as she will be abroad when the claim goes to Court I can get a witness statement from her to confirm this too.

 

 

No you cant represent anyone....but you will be in attendance as the main claimant...if necessary and if directed by the court your daughter can submit a statement in support of the claim in her absence.We can cross that bridge if and when necessary.

 

Assuming the application is successful the court will give an order for you to resubmit an amended particulars of claim...nothing else changes..the date of claim the value etc....only the claimants names and the particulars.

 

lastly dont forget to make payment ...the fee is £100...and also be aware that in making this application you may become liable for the defendants costs if your claim is not successful.

 

Andy

[Andyorch]

You have not made the amendments as advised in my last post ?

[Andyorch]

Letters of consent are fine...just amend the N244 (6 & 9a) and  remove the amended particulars from the draft order.....job done.

 

You will have to check the county court accepts email applications and on line/phone payment...I would also send hard copies by post ...normal post will suffice simply request a receipt as proof of postage.

[Andyorch]

Draft order is fine...... N244 you have still not amended point 6.......no time to be entered and not agreed by parties.

 

Use her old name thats fine.

 

Email and payment arrangements see my post # 134...already advised.

[Andyorch]

Yes that fine.....Im just wondering whether we should include a copy of the amended particulars on a separate sheet to speed the process up.

 

 

So 1 more last sheet for you to attach to the N244

 

 

In the Leicester County Court

County Court

90 Wellington Street

Leicester

LE1 6HG

 

In the Leicester county court Claim, No 164MC057

 

Claimant/s......... V        Defendant.........

 

Amended particulars of claim.

 

The claimant and second claimant joinder seek reimbursement of £7700 paid to the defendant on 19 April date 2019 in respect of a frustrated contract for a wedding venue for 350 Guests booked for the 23 May 2020 and which was cancelled by the defendant as a result of implementing government restrictions in respect of Covid 19 Legislation. The leading claimant makes this claim pursuant to Contracts (Rights of Third Parties) Act 1999. The defendant has refused to refund the contract price. The claimant seeks £7700 plus interest and costs.

 

Statement of Truth

 

I believe that the  facts stated in the particulars of claim are true.

 

Signed

 

Dated this day xxxxx

 

 

 

[Andyorch]

[Andyorch]

Hows this transpiring intree...have they decided which court its at yet ?

 

Andy

[Andyorch]