Who is liable?

j999jmp

zerog wrote: »

Because he was lying and hoped he wouldn't get caught...?

That's what I think

chattychappy

bargainbetty wrote: »

I would actually seek legal advice on this one, regarding your liability. Technically, the owner of the business should be making a claim against the employee for making the transactions, as he has a duty to mitigate his losses prior to seeking redress from you.

Suggest that he file a claim against his former employee for the return of the funds, and agree a repayment plan with the court's assistance first? Since it was him who suffered the fraud, he is in a far stronger position to obtain a judgement against the thief than you are.

In legal speak, I suspect there are resulting trust/tracing issues - ie the OP, aware (or ought to have been aware, or at the very least from the time when he became aware) of the fraud, is holding the funds on trust for the victim, the employer. If I get a moment I'll dig out some law. For anybody interested, I suspect the relevant cases care Black v Freedman [1910] and Westdeutsche Landesbank Girozentrale v Islington LBC [1996].

Gist is, the OP should pay back. But during any "blissfully ignorant" period, if having received the money he acted in a way he wouldn't otherwise have had (eg bought a slap-up meal), then perhaps this element could be disregarded. I am not sure - but legal advice on this specialised area could be pricey. I don't think there is any question of the OP being on the hook for fraud - if there is, that would have passed. Now we're talking about a civil liability issue. How much are we talking about?

(CC T+Cs may have something to say about "refunds" which aren't related to purchases, so the employer/merchant might recover this way.)

Disclaimer: I really am speaking off the cuff. This question deserves more time than I have right now.

bargainbetty

I don't disagree that if the OP was fully aware of the situation there might be some civil liability, but I am pretty sure that the employer has a duty to mitigate the losses by taking action against the thief for the recovery of the stolen funds. The employer is also in a better position to do it. Alternatively, the OP and the employer may wish to consider a joint suit against the thief for the sums owed.

This is well worth the free half hour or speaking to your home insurers for legal advice. It might cost a couple of hundred quid, but against the full loss or judgement in law? Peace of mind on this one.

jamesml

I personally wouldn't be so willing to repay the money - the friend has stolen from the company, not from you. The fact that the repayments you recieved were company money is really of no bearing on you. The company are trying to claim the money back from you because they want their money back, and don't really care whether you foot the bill, the fraudster foots the bill, the insurance co etc. The fact is the company should have better controls and processes in place to stop this sort of thing happening - the fact that they don't means that this is their problem, not yours. You got the money you were owed, and they should get the money they are owed from the person who stole it.

j999jmp

jamesml wrote: »

I personally wouldn't be so willing to repay the money - the friend has stolen from the company, not from you. The fact that the repayments you recieved were company money is really of no bearing on you. The company are trying to claim the money back from you because they want their money back, and don't really care whether you foot the bill, the fraudster foots the bill, the insurance co etc. The fact is the company should have better controls and processes in place to stop this sort of thing happening - the fact that they don't means that this is their problem, not yours. You got the money you were owed, and they should get the money they are owed from the person who stole it.

The owner of the company and his dad came round my house yesterday. Their first statement was that they believe I was in on what was happening. The fact that I am still owed money from their employee and checking my bank records show that I made no money seems unimportant to them. The employee has no money so I am the obvious choice for them to try and get their money back.

They are threatening court action against me with conspiracy to defraud. This is something I cannot risk. So I am essentially backed into a corner!

Clive_Woody

j999jmp wrote: »

The owner of the company and his dad came round my house yesterday. Their first statement was that they believe I was in on what was happening. The fact that I am still owed money from their employee and checking my bank records show that I made no money seems unimportant to them. The employee has no money so I am the obvious choice for them to try and get their money back.

They are threatening court action against me with conspiracy to defraud. This is something I cannot risk. So I am essentially backed into a corner!

That's a rather grand accusation, they would need evidence to back that up or need to be very careful what they are claiming because at the moment you have done nothing wrong as far as I can tell.

I am no legal expert but as far as I can tell he owed you money. He stole money from his employer and used this to repay his debt. Both you and his employer are innocent parties. The manner of the payment does raise a few suspicions and you would need to be prepared to explain why you never checked that his employer was okay with him making debit card refunds to you (presumably this was despite you never receiving goods or services from them so effectively there was nothing to be refunded?).

lisyloo

This is something I cannot risk

Do you know what you are risking or is that a knee-jerk reaction?
For example if it's the small claims court then they can't tag on costs, but you might need time-off work to attend court.
I'm not saying don't take it seriously, but I am saying find out the facts and don't react emotionally.

I don't think this is black and white.
On the one hand it could be argued that you were naive on the other hand it could be argued that you were just trusting.
If it went to court the judge has to decide whether your actions were reasonable.

The very first question is - have you checked your insurance yet for free legal advice/cover?
If not then why not? This is very valuable and you need to be checking your policy now.
If not then I'd try to arrange a free half hour consultation with a local solicitor.

You need to understand factually how a judge will look at this from the experience of a solicitor (not a load of people on MSE) also you need to understand the potential risks for you and your options.

Have you checked that policy yet?

GingerFurball_2

Clive_Woody wrote: »

That's a rather grand accusation, they would need evidence to back that up or need to be very careful what they are claiming because at the moment you have done nothing wrong as far as I can tell.

Unfortunately the way the OP's "mate" has repaid him the money looks really, really bad. If he'd just been dipping into the till/safe and robbing it then there would be nothing to link the OP to any wrong doing, but having had multiple fraudulent refunds onto his debit card, he's unfortunately been pulled into the issue.

chattychappy

bargainbetty wrote: »

I don't disagree that if the OP was fully aware of the situation there might be some civil liability, but I am pretty sure that the employer has a duty to mitigate the losses by taking action against the thief for the recovery of the stolen funds.

Personally I'm not convinced there was a theft. The monies were in the company bank account and sent to the OP. I'm guessing it was a fraud rather than a theft because the money didn't pass through the hands of the "friend". The company could still sue the "friend" if they suffer a loss because they can't get the money back from the OP. But I believe the first port of call will be the OP - because the OP currently has the money.

It was the company that sent the money, albeit at the fraudulent request of the "friend". The company didn't owe the money to the OP and didn't agree to take on the debt. On this analysis, the OP has to return it in the same way you have to return money that you receive through bank error.

Sorry, OP. I really think you have to return it.

j999jmp wrote: »

The fact that I am still owed money from their employee and checking my bank records show that I made no money seems unimportant to them.

Actually I think they are right but for the simple reason you have their money. Their money can't pay off the debt unless they had agreed to this. So it is simply their money and the debt is still standing.

j999jmp wrote: »

They are threatening court action against me with conspiracy to defraud. This is something I cannot risk. So I am essentially backed into a corner!

No. They are showing their ignorance. All they can do is sue you for the money and you can argue it out with the judge. "Conspiracy to defraud" is a criminal matter. It will be for the police/CPS to decide on a prosecution. Based on the facts you have given, I think it highly unlikely they'd be interested.

GingerFurball wrote: »

Unfortunately the way the OP's "mate" has repaid him the money looks really, really bad. If he'd just been dipping into the till/safe and robbing it then there would be nothing to link the OP to any wrong doing, but having had multiple fraudulent refunds onto his debit card, he's unfortunately been pulled into the issue.

I think you are right in that it puts the OP "on notice" that the money is not his friend's. Therefore he holds it for the company and not to return it on request is a breach of trust.

Clive_Woody

Basically go and speak to a solicitor and get legal advice as the good natured folk on here have given their opinions but as far as I know none of us are legally qualified or have you sitting in front of us to ask all the relevant questions.