The last time I was stressed at the unfairness of the legal system was when we had an ADR case. For those that do not recall (!) the arbitrator basically found in our favour (that we had not broken the contract) but still insisted we paid money to the customer and that we wrote off a load of outstanding invoices that post dated the complaint, oh, and also that we paid the arbitrator for this madness. I got very cross.
I know life is not fair, but some things in life have the scope and possibility to be reasonably fair, and the legal system is one of those things that should at least try for that aim.
Well, today I am facing a similar annoyance as this bozo in Scotland suing use for £3k, even though the service was fine, and even though we limit our liability (something we point out on the order form itself). He is just trying it on.
It seems that we have no way to get this resolved without someone going to Scotland for a hearing, even to dispute the jurisdiction of the case - where the key reason for doing so it to avoid a trip to Scotland. It seems cheapest is probably to engage a solicitor in Scotland and that we are unlikely to get our costs for that even if we win. This is all in spite of the fact that the case is plainly bogus as the pursuer (claimant) is a newly formed company created after all of the events in the claim and with which we have never had any dealings.
It is almost as if Mikey Mouse, the magic castle, fairyland could issue a summons and force someone to go to the cost and hassle of defending the case. Why don't courts have some option to at least question the basic validity of the claim without having a hearing - even if we had to pay the judge a fee to look at it for us before considering a hearing. That would be sensible for stupidities like this.
The court say no - we have to either admit the claim, or say we will go to the hearing. The solicitor suggested it is worth trying too reach an out of court settlement. That just seems wrong.
Heck, the guy did not even bother with any notice before action or threats or try to negotiate, yet this breach in process is just ignored - we have to go to the hearing.
Last time I got wound up I did come up with a somewhat hypothetical idea that would be morally wrong, and somewhat psychopathic: What we need is a sort of hit man clause in a will. Well, not quite actual hit man, but something whereby money goes to a company that specialise in hounding someone - taking all legal (or untraceable) means to make someone's life hell. Bogus court causes. Starting rumours. Anonymous tips of child abuse, fraud, terrorism, whatever. Just everything to make someone's life a misery as a parting gift if they are still alive. OK, it is hypothetical, but it would feel great to say that you are "adding someone to the list" that is in your will and that park that anger and annoyance.
The problem is that I am too nice to actually come up with something like that. Shame.
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Is the fact that this is in Scotland affecting procedures in any way?
ReplyDeleteI suspect so - different rules for the court process and rules with which I am unfamiliar.
DeleteI don't think so actually RevK - though I'm surprised you can't file a motion with the court to have the claim dismissed without a hearing, but that said, if you do file something like that, and there is a hearing, if you don't turn up, you'll be ruled against in your absence.
DeleteIIRC the system this side of the border is similar.
I tried to get them to stick it out on basis that it was clearly not valid, and they refused, sadly.
DeleteIf I can help with a recommendation for a Scottish lawyer, happy to do so.
Delete(But you'd need to check his fee!)
Scottish law is different to Englush/Welsh law. Some things are identical, some outcomes achieved in different ways, and some things completely different.
DeleteIf it's in or around Edinburgh and it ends up being you attending then allow me to buy you a beer that will hopefully make it seem a tiny bit less like a wasted trip. Scotland is lovely to visit anyway, of course, but I fully understand that does little to ease the stress.
ReplyDeletePresumably you've asked for a preliminary hearing under CPR 27.6(1)(c) to hear a motion to strike out?
ReplyDeleteYou can be awarded costs though;
CPR 27.14(2)(g) such further costs as the court may assess by the summary procedure and order to be paid by a party who has behaved unreasonably;
They haven't followed the CPR Pre-Action Protocol, and they've made a claim for monies to which they are not entitled by virtue of their legal entity not existing at the time the supposed breach was committed.
What about a counterclaim for the money they owe A&A?
Do you have a URL for that, and does it apply to Scotland? Sounds like an idea.
Deletehttps://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27
DeleteBut I reckon you need to challenge the jurisdiction of the court here - they have no jurisdiction over you, so should dismiss the claim accordingly.
CPR looks like it does not apply over the border. They have their own, confusing, rules.
Scottish law is entirely different, but the good news is that the principle remains that the loser normally pays costs. £3000 is, of course, the Scottish small claims limit, so expenses are limited to 10% of the sum craved, i.e. £300. What they may not be aware of is that where either party has acted unreasonably, the sheriff can award expenses on the ordinary cause scale, i.e. without this limit applying.
DeleteIs the case down to call yet, and do you have a good Scottish solicitor acting for you?
I may go myself. Costs won't help if the entity making the claim had no assets as a newly formed company.
DeleteIt might be worthwhile you still seeking costs, even if the company has no means to pay them. You'd need to talk a look at Scottish insolvency law but, if you had to chase the company to pay and ended up winding it up on the grounds of insolvency, the company's directors may not be able to be a director of another company (or something like that)?
DeleteIf the company is registered in bad faith, you might be able to talk the court into piercing the corporate veil, but the effort and cost to do so probably will exceed the benefit.
DeleteI recently had a customer who's company was being threatened with winding up proceedings for debts they did not owe. All in all it cost them a lot of money in accountants and legal advice and filing injunctions. Seems very unfair and I can see how smaller companies or those less sure that they have settled the account would just pay these bogus demands :(
ReplyDeleteStuff is unfair.
I would not be sure that paying up is limited to small companies! Sometimes, the cost and hassle of defending something makes paying up the more pragmatic commercial option.
DeleteIt sucks, for sure, and it can seem highly offensive that someone can be put in such a position, but sometimes it is the cheapest, most convenient way of resolving the issue.
Work's private health insurance has a £100 excess. I knew this, used the insurance, and paid the £100 excess. Ten months later the insurers came back and said part of what I claimed for wasn't covered and they wanted another £60. I said no way, you're 10 months too late and anyway it is covered. They sent two bills, I repeated my point on the first and ignored the second. Then they sent a notice before action. I folded, I'm not going to court over £60 as a private individual figthing a multinational corporation. Very annoyingly my employer refused to get involved despite it being their company provided health insurance.
ReplyDeleteWork is trying to persuade me to use the health insurance again, I'm refusing and using the NHS unless work agree to deal with absolutely everything to do with the insurers and I'll pay the £100 excess to work. Work say it's not their responsibility to do that, I replied "fine I'll use the NHS then".
Don't forget that some / most private health policies pay you for nights stayed in an NHS hospital, you don't even have to claim on the policy and pay an excess; you can just benefit from the cash.
DeleteThis is unlikely to result in a hospital stay.
Delete