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claim against my company, how to defend
stevensan
post Fri, 16 Nov 2018 - 11:47
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Hello

A company, for which I am a shareholder has received a claim form from the county court. The claim is for an unpaid invoice. The invoice in question is nothing to do with the company (X ltd), but for one of our subsidiary's (Y ltd) which is wholly owned by X ltd. The service address is X ltd, but at Y ltd's address.

X ltd is a Scottish company, whereas Y ltd is an English company. X ltd does not trade at Y ltd's address.

Y ltd is quite happy to pay the bill, but has never received the original invoice, nor any reminders or a letter before action.

How should we defend this? X ltd is not liable for the debt, but Y ltd is, but would dispute any additional charges as unreasonable behavior.

I am going to file the AOS, but interested in how to word the defence.

Any advice greatly received.
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post Fri, 16 Nov 2018 - 11:47
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The Rookie
post Fri, 16 Nov 2018 - 12:07
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Simply that they have the wrong defendant, especially if their own claim makes that clear.

I’d also contact them and ask if they want to pay your costs for being unreasonable or if they would actually like to invoice the right customer instead!

That’s my take anyway.

This post has been edited by The Rookie: Fri, 16 Nov 2018 - 12:07


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henrik777
post Fri, 16 Nov 2018 - 12:08
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QUOTE (stevensan @ Fri, 16 Nov 2018 - 11:47) *
Hello

A company, for which I am a shareholder has received a claim form from the county court. The claim is for an unpaid invoice. The invoice in question is nothing to do with the company (X ltd), but for one of our subsidiary's (Y ltd) which is wholly owned by X ltd. The service address is X ltd, but at Y ltd's address.

X ltd is a Scottish company, whereas Y ltd is an English company. X ltd does not trade at Y ltd's address.

Y ltd is quite happy to pay the bill, but has never received the original invoice, nor any reminders or a letter before action.

How should we defend this? X ltd is not liable for the debt, but Y ltd is, but would dispute any additional charges as unreasonable behavior.

I am going to file the AOS, but interested in how to word the defence.

Any advice greatly received.


X LTD writes to them explaining that they are a Scottish company and there are Jurisdiction issues and it has nothing to do with them.

Y LTD writes and asks why they've not received an invoice as they'd like to pay.

X LTD keeps an eye on deadlines and reacts accordingly in the face of no reply.
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Fredd
post Fri, 16 Nov 2018 - 12:37
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QUOTE (stevensan @ Fri, 16 Nov 2018 - 11:47) *
X ltd is not liable for the debt, but Y ltd is,

Just to be sure, X Ltd hasn't given any kind of parent company guarantee for Y Ltd's debts, has it?


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stevensan
post Fri, 16 Nov 2018 - 13:09
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QUOTE (Fredd @ Fri, 16 Nov 2018 - 13:37) *
QUOTE (stevensan @ Fri, 16 Nov 2018 - 11:47) *
X ltd is not liable for the debt, but Y ltd is,

Just to be sure, X Ltd hasn't given any kind of parent company guarantee for Y Ltd's debts, has it?


No - the contract was formed "verbally", but Y ltd don't dispute they agreed to pay.

Am I right in that for them to claim against us as a Scottish company they should have used the Scottish system, and therefore we should defend on the basis that;

- they've got the wrong company, and;
- that we contest jurisdiction.

Can the defence simply be that "they've got the wrong company", or should we include more information?
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stevensan
post Fri, 16 Nov 2018 - 13:27
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This is my suggested reply to the client (we will of course do AOS and file defense later)

---------------

Dear Claiment

We have received a county court claim from yourselves for an unpaid invoice.

X Ltd have no record of this invoice, nor have received any letter before action from yourselves/your client.

X Ltd do not trade or operate in any capacity at ADDRESS. If you had followed Pre action protocol this would have been apparent to you before filing unnecessary court paperwork.

This premise is the operating and registered address of Y ltd.

It is suggested you discontinue your claim and contact the correct company in order to settle your claim.

If X Ltd is forced to defend this claim we will draw the attention of the court to your unreasonable behaviour in bringing this claim without following pre action protocol.
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bm1957
post Fri, 16 Nov 2018 - 16:09
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Wow. How about - 'someone' (could be from X or Y... doesn't really matter), phones the invoicing company and asks if they'll retract the claim after Y pay the invoice?

This could be sorted without even picking up a pen/touching a keyboard...

What happened to good old people skills? Or is there more to this than meets the eye?

This post has been edited by bm1957: Fri, 16 Nov 2018 - 16:10
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cp8759
post Fri, 16 Nov 2018 - 17:11
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QUOTE (bm1957 @ Fri, 16 Nov 2018 - 16:09) *
Wow. How about - 'someone' (could be from X or Y... doesn't really matter), phones the invoicing company and asks if they'll retract the claim after Y pay the invoice?

This could be sorted without even picking up a pen/touching a keyboard...

What happened to good old people skills? Or is there more to this than meets the eye?

+1, I'm sure something like "Email us the invoice and the money will be in your account by the end of the day" would attack a positive response.


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stevensan
post Sat, 17 Nov 2018 - 10:56
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QUOTE (bm1957 @ Fri, 16 Nov 2018 - 16:09) *
Wow. How about - 'someone' (could be from X or Y... doesn't really matter), phones the invoicing company and asks if they'll retract the claim after Y pay the invoice?

This could be sorted without even picking up a pen/touching a keyboard...

What happened to good old people skills? Or is there more to this than meets the eye?


Because when I've phoned up they said "speak to our lawyer". The law firm says "speak to our client".

X ltd now have a claim against it, from a party never contracted by X, and from a company not willing to even discuss with us (and who have made no attempt to contact us before making the claim - they hadn't even sent the invoice!)

It is my understanding that if Y ltd paid the amount (invoice, excluding the "lawyer fee and court fee"), then the claimant can still continue to claim against X ltd? If that's not the case I'll advise Y ltd to simply pay the amount on Monday and X ltd will simply defend the claim on the basis they have the wrong company.
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DancingDad
post Sat, 17 Nov 2018 - 11:13
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QUOTE (stevensan @ Sat, 17 Nov 2018 - 10:56) *
QUOTE (bm1957 @ Fri, 16 Nov 2018 - 16:09) *
Wow. How about - 'someone' (could be from X or Y... doesn't really matter), phones the invoicing company and asks if they'll retract the claim after Y pay the invoice?

This could be sorted without even picking up a pen/touching a keyboard...

What happened to good old people skills? Or is there more to this than meets the eye?


Because when I've phoned up they said "speak to our lawyer". The law firm says "speak to our client".

X ltd now have a claim against it, from a party never contracted by X, and from a company not willing to even discuss with us (and who have made no attempt to contact us before making the claim - they hadn't even sent the invoice!)

It is my understanding that if Y ltd paid the amount (invoice, excluding the "lawyer fee and court fee"), then the claimant can still continue to claim against X ltd? If that's not the case I'll advise Y ltd to simply pay the amount on Monday and X ltd will simply defend the claim on the basis they have the wrong company.



While my preference would be to talk to them, if they won't talk, sod 'em.
I would be looking at not asking Y to pay and defending on the basis of no contract with X, no case to answer.

I also wonder if the powers that be at the claimant company know what is happening ?
What sort of company is it, one man band or what ?
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PASTMYBEST
post Sat, 17 Nov 2018 - 13:08
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a verbal contract you agree is due. Pop round with a cheque


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stevensan
post Sat, 17 Nov 2018 - 15:38
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QUOTE (PASTMYBEST @ Sat, 17 Nov 2018 - 13:08) *
a verbal contract you agree is due. Pop round with a cheque


X ltd has never agreed anything. Y ltd made the verbal contract, which they agree would be due, but have never received an invoice to pay. The first thing they have found out is receiving court papers, in the name of X ltd, at their trading address.

X ltd are going to defend on the basis they are the wrong party. Y ltd are going to write to the claimant agreeing to pay once the invoice is sent.

Should X ltd also contest jurisdiction when acknowledging the AOS?
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cp8759
post Sat, 17 Nov 2018 - 16:42
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Get Y to send a cheque, then file a defence that the debt has been paid (I believe there's a tick-box on the defence form for this), end of.


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stevensan
post Wed, 21 Nov 2018 - 14:08
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As an update, X ltd sent a reply as indicated in the chain above, telling the client/lawyer that we had never entered into an agreement, that they had the wrong address and the wrong company.

Y ltd meanwhile phoned the creditor and made payment relating to the invoice they never received.

X ltd have now received the below letter from the lawyer, seemingly ignoring the fact that X ltd have made no payment to their client (they haven't - it was made from Y ltd's bank account), and ignoring the fact we've told them we do not operate or trade at that address. The lawyer was already well aware we operate at a Scottish address as they sent us a letter there saying they had check our address on companies house (after making the claim at a different address).



We have acknowledged service and intend to defend in full.

I am going to send another letter back to the lawyer, but at what point should I start pointing out this is now costing us money to deal with? Their letter strikes me as no better than a debt collectors letter, stating they will "enter judgement against" us and "instruct the bailiff to levy execution without further reference to" us.

I've so far been very reasonable, but this is now infuriating.

--------------
Dear client/lawyer

We have been passed another letter, addressed to us, but sent to the address of Y Ltd.

We have already informed you that X Ltd do not trade or operate at the Newcastle address.

We reiterate to you that X Ltd have never entered into any contract with yourself/client. We reiterate that at no time have we received any letters, invoices or letter before action from yourself/client.

X Ltd have made no payment of any kind to yourself/client.

You are well aware that our address is Scottish address as you managed to send a letter to that address after filing unnecessary court papers.

As previously noted, X Ltd will robustly defend any claim on the above points. You are taking action against the wrong company. Please withdraw your claim to avoid us incurring unnecessary costs

We will be unable to enter into any more correspondence that is sent to Newcastle.

Kind Regards

This post has been edited by stevensan: Wed, 21 Nov 2018 - 15:55
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DancingDad
post Wed, 21 Nov 2018 - 18:00
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QUOTE
As previously noted, X Ltd will robustly defend any claim on the above points. You are taking action against the wrong company. Please withdraw your claim to avoid us incurring unnecessary costs



As previously noted, X Ltd will robustly defend any claim on the above points and that you are taking action against the wrong company.
We require you to immediately confirm withdrawal of the action, it is untenable and will only incur costs that will be borne by yourselves or your clients.
Please also note that our correct postal address is on the letterhead, any letters or notices sent to any other address cannot be regarded as served.


Just my take, a more robust repost is required then yours IMO.

This post has been edited by DancingDad: Wed, 21 Nov 2018 - 18:00
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cp8759
post Wed, 21 Nov 2018 - 18:07
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If they don't drop this I would ask for costs, even if the case is allocated to the small claims track the court retains a power to make an order for costs against a party that has behaved unreasonably. You might also have grounds to apply for the case to be struck out prior to allocation, in which case the small claims track rules won't apply and you'll be entitled to your costs in the normal way, but we'd need to see the claimant's pleadings to advice on that.


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whjohnson
post Thu, 22 Nov 2018 - 12:47
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The only ones rubbing their hands here are the solicitors as usual.

What a farce!
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stevensan
post Thu, 22 Nov 2018 - 12:48
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thanks - i'll revise the letter to make it stronger. I'm conscious of trying to appear reasonable should this ever get in front of a judge.
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DancingDad
post Thu, 22 Nov 2018 - 13:49
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QUOTE (stevensan @ Thu, 22 Nov 2018 - 12:48) *
thanks - i'll revise the letter to make it stronger. I'm conscious of trying to appear reasonable should this ever get in front of a judge.


You can be reasonable and assertive at the same time.

Arkell v Pressdram would not IMO be unreasonable, this is a totally unfounded claim against your company.
But probably better to be more polite.
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stevensan
post Fri, 23 Nov 2018 - 10:48
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I've revised as suggested and sent the letters today. Will see what they come back with...
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