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Letter before action, dishonoured cheque.
Korting
post Mon, 28 Jan 2019 - 23:19
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Just before Christmas, I carried out some work on two vintage audio items. The customer lives approx 150 miles from where I'm based.

I delivered back after repair one of the items back in early January and was given a company cheque with a request to make the bill out to 'repair of electronic equipment' or industrial equipment. The amount was £528.00 for both items

A few days later the cheque is returned 'Payment Stopped'

There was no communication from the customer up to the point that I tried to call her and sent her an email.

She replied to that email which was quite lengthy, making excuses as to why she stopped the cheque and offering me £200 + £25 for a new bluetooth (which actually cost me around £50 with my making up a special lead).

I replied to her telling her that her offer was unacceptable and that I would return to put right any problems or if she didn't want me to return, I would take £100 off the bill.

She didn't respond

I'm now in the process of sending a letter before action

QUOTE
Dear A.....,

Thank you for your email of the 16th January, which I replied to (copy attached) but to date have had no reply.

In that email, I explained that I was not prepared to accept £200 from you and I explained my reasons why. I also included an invoice which clearly explains the work carried out and materials used.

I’m sure that you will understand that in any business/service, things don’t always go to plan and there can be unforeseen problems, but in that eventuality I would endeavour to try and put things right, as I’m sure you would if that happened in your business. I have offered to come back to you, collect the radio, have another look at it and find out what has gone wrong and repair it so that it works in your house. This would be carried out at no further cost to you. I would also extend my guarantee for 1 year starting on the day it was returned to you. This would all be done at your convenience.

I feel that it is only fair that you give me the opportunity to put things right.

I also gave you the option of paying a reduced amount of £428, but that would be without carrying out any further work to the radio. This offer is available to you until Friday 15th February.

However I must regretfully inform you that should I not receive payment from you, or be given the opportunity to collect the radio by 15th February in order to repair it, then you will give me no alternative than to issue proceedings in the small claims court against your company, Xxxxxx Ltd, for the full sum of £528.

If this becomes necessary then I will add a fee of £120 to cover my time in dealing with this, plus the court fees.

I have to also inform you that if I am required to travel to you for any court hearing, then I will require your company to pay for my travelling costs and if the hearing is scheduled for the morning, my overnight accommodation.

I really do hope that this will not be necessary and that we can find a friendly and amicable solution to this.

I look forward to your early reply.

Yours sincerely


My wife thinks that the lat two paragraphs (beginning with If this become necessary....) is too heavy.

I'm trying to be fair to the customer, but feel that I should set out any charges that she may incur if I have to take this further.

So I'm inviting anyone who would like to to comment.

This post has been edited by Korting: Mon, 28 Jan 2019 - 23:20
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StuartBu
post Tue, 29 Jan 2019 - 03:22
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QUOTE (Korting @ Mon, 28 Jan 2019 - 23:19) *
Just before Christmas, I carried out some work on two vintage audio items. The customer lives approx 150 miles from where I'm based.



That's a long way to travel to get/Return the items .

Was your customer aware of an estimated cost before or after you were able to examine them ...and did she agree to the cost .

What was wrong with the items before you repaired them and did you correct whatever was wrong and were the items working ........Is she now saying its the same fault or is her complaint about a new fault ...........you say you delivered ONE of the items ..How did you get the other item back to her . Was using a courier not an option.?

Can you say what exactly was wrong with the items .

This post has been edited by StuartBu: Tue, 29 Jan 2019 - 03:23
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peterguk
post Tue, 29 Jan 2019 - 08:55
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Did you quote the customer for the work before you carried it out?

Yu may be able to sue her and apply for summary judgement on the stopped cheque. That is an offence in itself. IIRC, it comes under The Cheque Act or Bills of Exchange Act.

I've won all 3 of my cases involving stopped cheques with no difficulties.

It's been about 5 years since my last one - best to check if any rules have changed.

Your LBC must conform to the latest PAP. Google for more info.

Did you quote the customer for the work before you carried it out?

This post has been edited by peterguk: Tue, 29 Jan 2019 - 09:06


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Korting
post Tue, 29 Jan 2019 - 09:24
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I did quote the customer verbally for the two items. The first I was able to repair on sight, it was a mid 70’s dynatron radiogram, the turntable mechanism had seized and it required a new pick up cartridge.

She then told me about the second one, a 1950’s radio. Now these need certain parts changed or it could be dangerous, I had difficulties repairing it on sight so took it to my workshop. I repaired it in the workshop and added Bluetooth. Which could be selected via the gram. It required a special cable to be made using parts which are no longer manufactured but which I had built up some stock.

She is complying that the turntable is running a tad slow, they always did and there was no speed control or fine adjustment on them. She was made fully aware of them.

Regarding the radio, the tuning pointer was missing so I made a new ne but she’s not happy with that and she says she cant pick up stations, I could in my workshop.

She willingly paid me for it, with a company cheque, requesting that I make the bill out for electrical repairs. I haven’t done that to date. She is obviously trying to cheat HMRC.

As far as I'm concerned there was a verbal contract, I've stuck to it despite the fact that there were difficulties with the radio and it took me a lot longer than I expected to repair.

At no time. Did she explain that I was working for her company, not her personally.

This post has been edited by Korting: Tue, 29 Jan 2019 - 09:35
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Korting
post Tue, 29 Jan 2019 - 10:18
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I have looked at the PAP and added the following:

QUOTE
31st January 2019

LETTER OF CLAIM

The Claimant: Myself, my address

From: The defendant, their address

Reference: Job No: 0xxxxx, Unpaid Cheque No: yyyyy

Details: The claimant, myself claims £528.00 for a dishonored cheque for work carried out to customers equipment. I should state that as far as I was concerned, I was carrying out repairs to Ms A De Rxxx's personal equipment and not for her company.

Response to the proposed claim: I invite the defendant to settle this matter as quickly and amicably as possible. The defendant can contact me by post, email or telephone in order to resolve the matter.

ADR proposals: The resolution that I seek, is that:
a) I should be given the opportunity to collect the radio and carry our further work at no extra cost to the customer,
b) Payment in full of the lower sum of £428.00 but without any further work being carried out on the radio.
c) Payment in full

Should this matter proceed to trial, I will want the matter heard in the County Court. I shall also require the defendant to pay my travel costs, accommodation costs and for time taken to attend court.

Response to requests for information and documents: Should the defendant require any documents, please request it from me either by email or by post.

Address for further correspondence and service of court documents: The address is given above.
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southpaw82
post Tue, 29 Jan 2019 - 10:58
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Just sue on the cheque. Open and shut.


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Redivi
post Tue, 29 Jan 2019 - 11:05
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It's not clear from your account who you're planning to send this to but it must include the company, not just Ms De R***

Others may have a different opinion but for me the issue is that the company cheque was dishonoured and the background is largely irrelevant
Edit : I see that Southpaw has already made this point

I would go for something more like :

NOTICE OF DISHONOUR

The Claimant: Myself, my address

To : (Company) (their address)
(Ms A De R****) (her address)

Reference: Job No: 0xxxxx

Details: The demand concerns a dishonoured cheque for repairs to vintage music equipment as requested by Ms A De R***.
This was invoiced to (company) at Ms A De R****'s request who paid for the work using Company Cheque No. *****

The cheque was subsequently returned (date) as "Payment Stopped" in breach of the Bills of Exchange Act 1882.

I require immediate payment of £528 for the dishonoured cheque
If payment is not received within thirty days, I will take legal action in the County Court without further warning

I hold (Company) and (Ms A De R****) jointly and severally liable for the debt

Yours Faithfully

Enclosures : Invoice ****
Copy of dishonoured cheque
Questionnaire etc in accordance with Pre-action Protocol for Debt Claims


This post has been edited by Redivi: Tue, 29 Jan 2019 - 11:06
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Korting
post Tue, 29 Jan 2019 - 11:30
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Where can I get the questionnaire form from?
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Redivi
post Tue, 29 Jan 2019 - 11:34
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https://www.justice.gov.uk/courts/procedure...ls/debt-pap.pdf
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Glacier2
post Tue, 29 Jan 2019 - 11:57
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QUOTE (southpaw82 @ Tue, 29 Jan 2019 - 10:58) *
Just sue on the cheque. Open and shut.

Absolutely. It avoids fapping about with detailed POC and leaves the defendant zero wriggle room.
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Korting
post Tue, 29 Jan 2019 - 12:09
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Thank you Redvi and all that have helped me.
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Korting
post Thu, 31 Jan 2019 - 14:40
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Letter sent and received, she replied by text

QUOTE
I‘Ve got your letter, I said I’d pay £250 for the record player and the Bluetooth thing, will BACS that now. Or I’m happy for you to put me in court and you’ll get nothing. By the way, I had to tell the bank when I stopped the cheque that I had been intimidated into paying a tradesman in my house, they take a very dim view if that


That was word for word what she wrote.

I did not intimidate her at all in fact in her first email to me she said she’d been happy to pay me.

If I was threatening and intimidating her, do you think I’d have accepted a company cheque for ‘industrial repairs’ as she wanted for a repair to her own personal equipment.

My view is that this could be construed as blackmail attempting to defraud and attempting to obtain goods by deception.

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The Rookie
post Thu, 31 Jan 2019 - 14:48
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I'd take her up on her offer for you to take her to court.... she may well not acknowledge giving you a default win anyway!

Can't imagine a Judge being amused by that overly.

I note that's what she had to tell her bank, not actually saying it's what you did.....

This post has been edited by The Rookie: Thu, 31 Jan 2019 - 14:49


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Korting
post Thu, 31 Jan 2019 - 14:53
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I haven’t replied to her and I’m not going to. She doesn’t have my bank details either, I don’t want her putting money in my account then saying it was full and final settlement.

AFAIK replying by text is not a legal service of documents though it can be used in evidence.

What about the blackmail aspect?
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Redivi
post Thu, 31 Jan 2019 - 15:34
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That would be a matter for the police
The chances of a prosecution are next to zero so I wouldn't bother

Am I understanding correctly that she owns the company ?
Check with Companies House

Can't see that she would want this to go to a hearing where she would have to admit she owns the record player etc
Unless the company accounts have recorded the payment as a benefit in kind, it amounts to tax fraud

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southpaw82
post Thu, 31 Jan 2019 - 15:37
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Just sue on the cheque. Blackmail etc is just a distraction that nobody is going to take any action about.

QUOTE
1. The Defendant drew and delivered to the Claimant a cheque dated [date] drawn upon the [location] branch of the [name] bank in the sum of £[amount] payable to the Claimant. A copy of the cheque is attached.

2. Upon due presentation of the cheque for payment it was dishonoured as payment was stopped by the Defendant.

3. In those circumstances, since payment of the cheque had been countermanded by the Defendant notice of dishonour was dispensed with.

4. The cheque remains unpaid.

5. The Claimant is entitled to and claims:

(a) Payment of the sum of £[amount], together with

(b) Interest pursuant to section 57(1) of the Bills of Exchange Act 1882 or alternatively pursuant to section 69 of the County Courts Act 1984 at the rate of 8% per annum until judgment or sooner payment amounting to £[amount] at the date hereof and continuing at a rate of £[amount] per day, or alternatively at such rate and for such period as the Court shall deem appropriate.


This post has been edited by southpaw82: Thu, 31 Jan 2019 - 15:48


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Korting
post Thu, 31 Jan 2019 - 21:14
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Do I have to wait 30 days? Or can I take her text as her reply?
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southpaw82
post Thu, 31 Jan 2019 - 21:36
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QUOTE (Korting @ Thu, 31 Jan 2019 - 21:14) *
Do I have to wait 30 days? Or can I take her text as her reply?

If you sent a letter before action giving 30 days to respond you ought to wait until the 30 days has elapsed. Was the LBA to her? Who was the cheque from?

This post has been edited by southpaw82: Thu, 31 Jan 2019 - 21:37


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Korting
post Thu, 31 Jan 2019 - 21:44
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Letter before action was to her and the company, it statI hold the company and herself jointly and severally liable.

Will contact HMRC when I issue proceedings.
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southpaw82
post Thu, 31 Jan 2019 - 21:49
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Well, they can’t be jointly and severally liable on the cheque.


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