Court summons a bit complicated!

alm721

Not sure if this is the best place for this but if anyone can help I'd be grateful. (Sorry its long!)
Basically my hubby has just recieved a court summons for damage to a hire vehicle that occured in 2005. At the time he was a salaried partner in a business with his mum and dad as the profit sharing partners. His mum and dad retired in 2007 and the partnership was dissolved and my hubby took over as a sole trader.
The accident occured when an employee of the firm had a collision with another vehicle in a car that the business had hired.
At the time my hubby did not deal with this and assumed it was sorted by his father. We have now just recieved this court summons. I have spoken to the solicitor and explained the situation and that we have never had any correspondance etc. They said they sent us a letter last July but we didn't recieve it. (This was the only previous correspondance from either them or their client) They have now sent a copy and it turns out they have sent to a shop whhich was sold in 2006 hence why we didn't get it. My father in law thinks we should pay it as it will be hard to denfend and its not a large amount and potential solicitor costs would be large (I tend to agree).

BUT there is now an additional court fee of £60 and fee of £70 from their solicitor and intrest at 6% since early 2006. We are willing to settle the orginal amount but feel its unfair for us to have to settle the rest as we were given no oppotunity to try and resolve this matter before they applied to court. So in principle I don't want to pay it.
Does anyone know where we would stand with regards to this? Do we have a case to not pay the fees and interest given the circumstances. If anyone can offer any advice that would be great.
Thanks

LinasPilibaitisisbatman

alm721 wrote: »

Not sure if this is the best place for this but if anyone can help I'd be grateful. (Sorry its long!)
Basically my hubby has just recieved a court summons for damage to a hire vehicle that occured in 2005. At the time he was a salaried partner in a business with his mum and dad as the profit sharing partners. His mum and dad retired in 2007 and the partnership was dissolved and my hubby took over as a sole trader.
The accident occured when an employee of the firm had a collision with another vehicle in a car that the business had hired.
At the time my hubby did not deal with this and assumed it was sorted by his father. We have now just recieved this court summons. I have spoken to the solicitor and explained the situation and that we have never had any correspondance etc. They said they sent us a letter last July but we didn't recieve it. (This was the only previous correspondance from either them or their client) They have now sent a copy and it turns out they have sent to a shop whhich was sold in 2006 hence why we didn't get it. My father in law thinks we should pay it as it will be hard to denfend and its not a large amount and potential solicitor costs would be large (I tend to agree).

BUT there is now an additional court fee of £60 and fee of £70 from their solicitor and intrest at 6% since early 2006. We are willing to settle the orginal amount but feel its unfair for us to have to settle the rest as we were given no oppotunity to try and resolve this matter before they applied to court. So in principle I don't want to pay it.
Does anyone know where we would stand with regards to this? Do we have a case to not pay the fees and interest given the circumstances. If anyone can offer any advice that would be great.
Thanks

a partnership has joint and several liability meaning any partner can be sued for an incident together or individually.

The other fees are standard.

your husband has no recourse and if he wants to recover the costs needs to settle then look to the other partners to pick up there share.

this is why family/friend partnerships are a bad idea

Voyager2002

He can always approach the claimant and offer to settle out of court, for the amount claimed but not the costs and interests. Then up to them whether or not to accept.

One key question: why did they write to an address that did not reach you? Their fault or that of your husband's family?

alm721

Voyager2002 wrote: »

He can always approach the claimant and offer to settle out of court, for the amount claimed but not the costs and interests. Then up to them whether or not to accept.

One key question: why did they write to an address that did not reach you? Their fault or that of your husband's family?

Don't think it was anyones fault as such. The wrote to the shop address that had hired the vehicle. Since this time the shop was sold and is trading as something else. I guess the people who now own it just binned the mail since its been 3 years since they bought the shop.
That said the court summons did come to our remaining shop and was addressed just to my hubby not the other partners so I guess they probably checked companies house or something in which case should'nt they have checked a bit more carefully when sending the orginal letter? They did also have the accident claim paperwork which had our existing shop address on.

To be honest I just feel its unfair to have pay the extra costs when the court summons was the first we knew about it so we have had no oppotunity to settle the bill. I also can't see how they can charge interest on a bill that we've never had and which has never been requested before. It is over 3 and a half years since the accident!

Tozer

How much is the claim for?

It sounds as though it is small claims. There are no major cost implications of defending the claim even though they have instructed solicitors. For that reason, they are likely to find it uneconomic to continue retaining solicitors.

Also, did your husband hold himself out as a partner (i.e. had the job title partner, appeared on letterheads, etc?). If not, then it may well be the case that he was not a true partner in the legal sense.

alm721

It is small claims, only £500 odd plus another £250 with various charges for their solicitor and court fee and interest.

Hubby was basically his dads laccy as far as I can make out. Don't think he was on any letterheads (mind you dont think his mother was either). He basically did what he was told but if we argue this then presumably they will go after his dad anyway?

To be honest I'm not sure that he was a true partner. A partnership agreement was drawn up but his brother wouldn't sign it or something so I'm not too sure that it stands as it was missing a signature? Hubby was classed as a non profit sharing partner which basically meant he got paid a wage. Mum and dad split the partnership profits 60/40 hubby was not even allowed to see the accounts as I can remeber having arguments about this when we were trying to get a mortgage. His dad claimed that because he was only a salaried partner the business accounts had nothing to do with him and wouldn't let him see them and we had a real fight with him as the mortgage company wouldn't let us have a mortgage wothout providing them (but thats a whole other story).

Tozer

It is going to be difficult to prove I think. What solicitor's costs are they claiming?

alm721

Tozer wrote: »

It is going to be difficult to prove I think. What solicitor's costs are they claiming?

Only small amounts, solicitors £70 court fee £60 and some interest. Fil has agreed now to cover the orginal debt but I just really think the solicitors and court fee are unfair as we have had nothing from anyone about this before the court summons therefore we have had no oppotunity to settle this.
Do you think it would be worth sending a letter with a cheque for the orginal amount and state that we are not paying the extra due to having no warning. And if we did and they did take us to court would we have any chance?
Surly its not right to be incurring fees and charges for something we didn't even know existed?

Voyager2002

alm721 wrote: »

Only small amounts, solicitors £70 court fee £60 and some interest. Fil has agreed now to cover the orginal debt but I just really think the solicitors and court fee are unfair as we have had nothing from anyone about this before the court summons therefore we have had no oppotunity to settle this.
Do you think it would be worth sending a letter with a cheque for the orginal amount and state that we are not paying the extra due to having no warning. And if we did and they did take us to court would we have any chance?
Surly its not right to be incurring fees and charges for something we didn't even know existed?

Agreed, but the other person has already spent money on a solicitor and court fee. It is unfair for you to have to pay these costs, but also unfair for them.

Maybe the fairest outcome would be to split these costs? Anyway, if the matter were to go to a hearing in the small claims court and they won, they would get the interest and the court fee but not their solicitor's fee. If you were to contest it in a small claims hearing, they would probably spend a good deal more on their solicitor but are unlikely to be able to recover these costs. So it would be intelligent for them to accept a reasonable offer from you.

Just one thing: if you write to them offering to settle, be sure to mark your letter with the words "without prejudice". This means that they are not allowed at a later stage to use your letter as evidence in court. Otherwise they might use it to prove that you knew you were in the wrong all the time, and that would not help you in court.

alm721

I know what you mean about them having paid but they wouldn't have had to if they had sent us an invoice or anything so we knew that this was an issue it could have been avioded and they would not have had to contact their solicitors. Granted if they had sent an invoice which we just didn't pay then I wouldn't be arguing about the fact that they have a solicitors fee.
With regards to the court cost surely that is their soliciotrs fault and they should look to recover this fee from them? They sent the only documentation to the wrong address and then applied to court when they didn't get a response?
Out of interest if we did defend this but did so ourselves and they won would we not have to pay their solicitors fee?
Oh and a big thank-you with the 'without prejudice' warning, I always wondered what that meant.Will make sure its included in any documentation we send.
thanks

Tozer

When discussing it with them, quote Part 1 of the Civil Procedure Rules ("the Overriding Objective"). This requires parties to take all steps to avoid litigation. By issuing you without writing first (to your correct address), they have arguably not complied with this.