So, looks like I'll be popping up to Scotland in a little over a week.
It is a shame a judge won't look at the stupidity of the case to see if a hearing is even necessary, but there seems little I can do. We even tried to contact the pursuer to reach a compromise if only to save me the trip and he won't even talk to us.
What I am failing to find is whether a dissolved company can take legal action. All I keep finding is advice on the impossibility of suing a dissolved company, which is apparently slightly easier if you can get it reinstated as a company (something new in 2006 Companies Act it seems). I am failing to confirm if a dissolved company can sue.
This is not directly related to this specific case as it is not the company we contracted with that is suing - that being the main defence in this case, but just in case things change, I want to confirm a dissolved company cannot sue.
If nothing else, I assume, if a dissolved company can sue, and win, I would pay the Crown the amount awarded as that is where all residual assets of a dissolved company go.
Anyway, just chasing my understanding of legal entities and of the impact of one no longer existing having been dissolved. Ideally something I can reference. But I would hope a judge is well up on the basics of legal entities - it has to be pretty fundamental stuff for them.
Lots of work for a bogus case.
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Under *English* law - which may be different to that of Scotland - my understanding is that a dissolved company is no longer a legal entity, and so cannot sue or be sued.
ReplyDeleteHowever, a dissolved company can be revived and, at that point, it becomes a legal entity again and is deemed to have been a legal entity all along. Quite what the outcome would be if it were dissolved when the limitation period expired but the claimant had attempted to sue before the expiry, I am not sure.
I appreciate that you may not want to go into it publicly, but what are your grounds of defence?
ReplyDeleteSomething like:
1.) The Scottish court does not have jurisdiction, as your terms of business (accepted by all customers, unless negotiated otherwise with you?) set out that "any dispute will be resolved in the English courts if possible".
2.) Even if the court does have jurisdiction, your terms of business (accepted etc.) provide that the contract is subject to English law, such that the Scottish court is required to apply English law to the dispute.
3.) Irrespective of jurisdiction or governing law, AAISP has not, and has never, entered into an agreement with the claimant and, in the absence of a contract, there can be no basis for the claim and, as such, you are looking for the court to issue a decree of dismissal on the grounds of incompetency, under Rule 9.2(1) of the Small Claim Rules (https://www.scotcourts.gov.uk/rules-and-practice/rules-of-court/sheriff-court---civil-procedure-rules/small-claim-rules).
4.) Assuming the court rules in your favour, you are looking for expenses undere Rule 26.1(b), on the basis that the instigation of the claim by claimant, out of jurisdiction, and in a situation where no contract exists, is unreasonable. And that, since you had to travel all the way to Scotland to attend, you petition the court for the hearing on expenses to be immediate, not delayed (21.6(6)), and you have an itemised list of expenses, plus receipts / justifications.
Or something like that?
"it is not the company we contracted with that is suing - that being the main defence in this case"
ReplyDeleteNot necessarily a fatal flaw for them, though: it's actually competent to amend the pursuer's identity to correct an error like that. If the claim is delictual rather than contractual, the lack of contract is also no use to you as a defence: that line was tried and rejected almost two centuries ago.
From what you've posted about it so far, I suspect you're going to have to go to proof and establish that there was no duty of care breached - i.e. the service was actually working properly after all.
Yep, I'd go armed with everything you might need to defend the case should things go against you on the initial points.
ReplyDelete