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  • FIRST POST
    • October868
    • By October868 11th Sep 19, 4:06 PM
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    October868
    Can defendant in Small-Claims court charge for ''time spent preparing for trial''??
    • #1
    • 11th Sep 19, 4:06 PM
    Can defendant in Small-Claims court charge for ''time spent preparing for trial''?? 11th Sep 19 at 4:06 PM
    Hello the background story to my current claim is stated in this thread-
    https://forums.moneysavingexpert.com/showthread.php?t=6041851


    To post a short summary though-

    I placed an order of some custom-videos from an individual last year, stating during a few online conversations that if this 1st batch went well I then would be looking to place orders for dozens more from them over the future months & years... ect

    They were paid over £3,000 by me, produced videos upto the value of £1,500 but then said they had spent the rest of the money (1/2 of which was designated as wages to pay their co-performer).
    I asked them to repay me that 1/2 of the remaining money, but they ignored my emails and then blocked me, thus making it clear that they were not willing to communicate with me anymore/or produce any work for me anymore.

    I have taken the matter to the small-claims court now to try recovering all my money.
    They however have been indirectly blackmailing me now though (by making multiple statements to people whom I associate with that they think I'm a !!!!!phile... ect), which ofcourse is extremely damaging & distressing for my life.
    They have also made a counterclaim against me, stating that ''If I had chosen to place dozens of future orders with them over the future months/years they would of earned £xxx thousands of pounds from those orders, but so they are now claiming that sum of money which they would've made if I had placed future orders''.


    To try just getting the matter closed, due to the amount of stress it's causing onto me, I have made them a pre-trial settlement offer of a mutual-withdrawal of claims.
    However they (or rather their Mckenzie friend) has responded back saying they would only accept that offer if I pay them compensation, including money towards the costs which they have incurred (and say they will add on at court) of 'time spent preparing for the trial'.

    The claim is being dealt with via the Small-claims track, and as far as I was aware the only costs you can charge the other party are the fixed-costs (so court application costs).

    But I have very little legal-knowledge, and so is it true that if they somehow won the case they could also charge me money for ''time spent preparing for the claim such as writing witness statements, which they claim is preventing them from working and thus losing income''?
    Also are they allowed to charge me for the cost of whatever they are paying their McKenzie friend?


    Thankyou inadvance
Page 4
    • da_rule
    • By da_rule 15th Sep 19, 10:10 PM
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    da_rule
    Service of a copy of an application notice
    23.7
    (1) A copy of the application notice –
    (a) must be served as soon as practicable after it is filed; and
    (b) except where another time limit is specified in these Rules or a practice direction, must in any event be served at least 3 days before the court is to deal with the application.
    (2) If a copy of the application notice is to be served by the court, the applicant must, when he files the application notice, file a copy of any written evidence in support.
    (3) When a copy of an application notice is served it must be accompanied by –
    (a) a copy of any written evidence in support; and
    (b) a copy of any draft order which the applicant has attached to his application.
    (4) If –
    (a) an application notice is served; but
    (b) the period of notice is shorter than the period required by these Rules or a practice direction,
    the court may direct that, in the circumstances of the case, sufficient notice has been given and hear the application.
    (5) This rule does not require written evidence –
    (a) to be filed if it has already been filed; or
    (b) to be served on a party on whom it has already been served.
    The above is the relevant CPR which deals with service of an application notice, so have you complied with this or not?

    I don’t understand your bit in italics. All any hearing is is an opportunity to present your case to the judge.
    • October868
    • By October868 15th Sep 19, 10:16 PM
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    October868
    Hello I did read that CPR before I filed, however as all the legal language is purposely worded in complex ways, rather than simple easy to understand language, I don't understand what that CPR even means/what it doesn't mean. :/

    That's why I phoned the court and asked them directly "Do I need to post a copy of my N244 form to the defendant, or just to the court?"

    And they said "You send the application & documents to us the court, and we then serve copies of it to the defendant".
    So that is what I did, I sent copies of my N244 form to the court, and they sent a copy of it to the defendant (along with the judge's decision on it) 10 working days later.

    But I just want to check that I have fully complied with the legislation about this please??
    Last edited by October868; 15-09-2019 at 10:23 PM.
    • da_rule
    • By da_rule 15th Sep 19, 10:23 PM
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    da_rule
    If the Court have served it then you’re fine.
    • October868
    • By October868 15th Sep 19, 10:27 PM
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    October868
    If the Court have served it then you’re fine.
    Originally posted by da_rule
    Thankyou for confirming that.

    But yes I posted it to the court on 1st September, they recieved it, processed it, and posted a copy of my application & documents (+ the judge's decision) to the defendant on 12th September.

    So the court did serve them with it.


    They (the defendant/her McKenzie friend) however are claiming that I acted improperly by not sending them a copy of it directly myself, at the same time as I sent it to the court.
    • da_rule
    • By da_rule 15th Sep 19, 10:29 PM
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    da_rule
    It’s always good practice to send copies to the other side, however the requirement is for it to be served ASAP after it is filed, which the Court did on your behalf.
    • October868
    • By October868 15th Sep 19, 10:42 PM
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    October868
    Ok thankyou for confirming that.
    Ultimately this was just another attempt by them to try panicking me into think I had done something wrong, to damage my mental-health even further.
    They have said they are going to write a substantive appeal to decision by the judge, but so hopefully the judge won't change her mind on allowing me to state my case.
    • da_rule
    • By da_rule 16th Sep 19, 6:10 AM
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    da_rule
    Ok thankyou for confirming that.
    Ultimately this was just another attempt by them to try panicking me into think I had done something wrong, to damage my mental-health even further.
    They have said they are going to write a substantive appeal to decision by the judge, but so hopefully the judge won't change her mind on allowing me to state my case.
    Originally posted by October868
    No, because that’s not how it works. This is now an application hearing. Therefore all evidence must be given in writing. Read the relevant CPR on applications and their hearings, but essentially you put your written evidence in, they get a chance to put there’s in, then you get a chance to reply (the Court won’t order you to reply or anything so you need to make yourself aware of the deadlines to do so). Everything is then put before the judge at the hearing who asks questions on what has been provided and makes their decision regarding the application.

    In your application, did you specifically say that you are applying to set aside the default judgment?
    • October868
    • By October868 16th Sep 19, 12:36 PM
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    October868
    No, because that’s not how it works. This is now an application hearing. Therefore all evidence must be given in writing. Read the relevant CPR on applications and their hearings, but essentially you put your written evidence in, they get a chance to put there’s in, then you get a chance to reply (the Court won’t order you to reply or anything so you need to make yourself aware of the deadlines to do so). Everything is then put before the judge at the hearing who asks questions on what has been provided and makes their decision regarding the application.

    In your application, did you specifically say that you are applying to set aside the default judgment?
    Originally posted by da_rule

    Hello but yes, my N244 application was to set aside the dfefault-judgment, based on that I feel I have a good prospect of successfully defending the claim (or rather the counterclaim).
    I then entered, in the allocated box on the form, more details as to my reasons for that belief.
    Plus also attached my supporting document along with the N244 form (my supporting document was my defence statement to the counterclaim, which I had already filed & served a few days earlier).

    But so just to confirm the other party will now file & serve a written statement saying why they think the default-judgment shouldn't be set aside,
    and I then will have to respond back to that in writing (to them and the court) saying why I think they are wrong? :S
    • October868
    • By October868 16th Sep 19, 2:03 PM
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    October868
    I think I have also potentially found another major loophole (or rather piece of legislation), which should potentially have a massive positive impact in my favour!


    The defendant's counterclaim has 3 parts to it-

    1. She claims that because I expressed an interest in placing future orders for more videos from her, depending on how the initial order went, that she should be paid by me the sum of money that she would've made if I had chosen to proceed to make those orders.

    2. She claims that due to me telling people (professional associates of mine) about what she had done, and word of that apparently getting circulated to a company which she worked for regularly as a self-employed contractor, she claims that it was due to this that she was 'driven out' of working there (no explanation/evidence provided as to what being driven out actually means), apparently she didn't do any self-employed work for any other brands for an 8-week period, and so she claims that I should pay her the sum of money which she claims she would've earned if that brand had offered her work during that period.

    3. She also claims that she should've charged me extra money for various costs which she incurred (although these costs were never ever mentioned to me when she gave me the price quote/and I paid it), but she is now saying adding these new hidden costs into the claim sum (including costs that she should've charged me a higher price per clip due to them being complex scripts she claims).


    I am going to write down my clear & concise defence to each of those points, which I will read out to to the judge at my hearing for the default-judgement to be set aside,
    and will publish that on here (ommitting any identifying details) if anyone would be kind enough to just let me know if what I write sounds ok.


    However the key point which my mind is now focusing on is that her point 2# is ultimately a claim against me for 'Libel'.
    As she is claiming that she apparently lost income due to things which I said to other people (nothing posted publicly ever mentioned her name just to add).

    However after having done some research it seems that 'Libel Claims' are not permitted in the County Court, and instead need to be made through the High Court... :|

    But so as a large part of her counterclaim is clearly for alledged Libel, and this case is being heard in the County Court, can I include in my appeal that her entire claim (or atleast that part of her claim) should be thrown out due to the fact that Libel claims cannot be made/heard in a County Court, only in the High Court??


    *The only time I was ever asked about where the claim should be heard in was on the N180 form where it asks ''if you agree that the case should be allocated to the 'Small Claims Track', due to claims for below 10k that is the standard route.

    But so by ticking yes I agree with the court's recommendation of which track it should be allocated to, could the defendant say that ''He agreed to the claim being heard in the county court''?
    Last edited by October868; 16-09-2019 at 2:15 PM.
    • SaucySecrets
    • By SaucySecrets 16th Sep 19, 2:31 PM
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    SaucySecrets
    Is #2 a claim for libel, or loss of earnings? I'd have read it as the latter, it doesn't look like they are seeking any moneys for damaged reputation or anything, just that your actions forced them to incur losses (according to them).

    (I am in no way an expert here, though)
    Signature down for maintenance
    • BoGoF
    • By BoGoF 16th Sep 19, 2:33 PM
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    BoGoF
    Is #2 a claim for libel, or loss of earnings? I'd have read it as the latter, it doesn't look like they are seeking any moneys for damaged reputation or anything, just that your actions forced them to incur losses (according to them).

    (I am in no way an expert here, though)
    Originally posted by SaucySecrets
    When I saw that username I thought you were the defendant for a minute!
    • October868
    • By October868 16th Sep 19, 2:37 PM
    • 86 Posts
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    October868
    Is #2 a claim for libel, or loss of earnings? I'd have read it as the latter, it doesn't look like they are seeking any moneys for damaged reputation or anything, just that your actions forced them to incur losses (according to them).

    (I am in no way an expert here, though)
    Originally posted by SaucySecrets

    They have claimed that statements made by me about them to other people (even though their name was never mentioned in any public statement) caused serious damage to their professional reputation,
    and that apparently that resulted them in ceasing working with a certain brand.

    So ultimately the claim would have to be for Libel, and that Libel would then have to be the cause of the loss of earnings, if I've interpretted the law correctly?
    • waamo
    • By waamo 16th Sep 19, 5:28 PM
    • 7,937 Posts
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    waamo
    They have claimed that statements made by me about them to other people (even though their name was never mentioned in any public statement) caused serious damage to their professional reputation,
    and that apparently that resulted them in ceasing working with a certain brand.

    So ultimately the claim would have to be for Libel, and that Libel would then have to be the cause of the loss of earnings, if I've interpretted the law correctly?
    Originally posted by October868
    As above she is claiming for loss of earnings not libel.
    This space for hire.
    • October868
    • By October868 16th Sep 19, 5:34 PM
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    October868
    As above she is claiming for loss of earnings not libel.
    Originally posted by waamo

    In her counter-claim she has even used the word libel/libelous though.

    And has claimed that this alledged loss of earnings was because her reputation was damaged due to things said by me about her to other people, which resulted in her having to cease doing certain work (do directly due to the alledged Libellous statements made by me).


    I know that I know virtually nothing about the law, but how can she claim for 'loss of earnings - caused due to reputational damage due to libel | but that not be a claim for libel?' :S
    • waamo
    • By waamo 16th Sep 19, 5:42 PM
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    waamo
    In her counter-claim she has even used the word libel/libelous though.

    And has claimed that this alledged loss of earnings was because her reputation was damaged due to things said by me about her to other people, which resulted in her having to cease doing certain work (do directly due to the alledged Libellous statements made by me).


    I know that I know virtually nothing about the law, but how can she claim for 'loss of earnings - caused due to reputational damage due to libel | but that not be a claim for libel?' :S
    Originally posted by October868
    It's not a libel claim because she has claimed for a specified loss. She has explicitly stated it's for loss of earnings so that's what it is. If it was a libel claim you would both need legal representation which you've said you can't afford so it's probably best not to go down that path anyway.
    This space for hire.
    • October868
    • By October868 16th Sep 19, 5:50 PM
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    October868
    Would anyone please be kind enough to review my defence to counterclaim 'verbal statement' - Please?
    Hello I will try to keep the background & summary of the case as short as possible-

    1. I contacted the defendant approx 15-months ago and enquired about commissioning her to perform & produce a number of 'custom-scripted' for me.
      The defendant quoted me a total price for producing a certain number of videos, got paid that total sum of money (just over £3,000), but then only produced 1/2 that number of videos.
      She then blocked me and stated she no longer wished to have any future dealings with me, but refused to refund the money paid for those non-produced videos.

      Part of our agreement, upon which the videos were ordered & paid for, was that I would have the right to re-sell the videos online.
      However as the defendant subsequently then threatened to 'sue me' if I did sell the videos online, she breached the contract & put me under duress, thus rendering the produced videos of no value.

      Therefore my claim was for the sum of money which I paid for the produced videos, due to her breaching the contract by putting me under duress, plus for the money which I paid her for the non-produced videos.

      I have written evidence showing (and proving) each & every element of those claims.

    The defendant however has filed a counterclaim saying-

    1. Because I had mentioned a few times that ''depending on how the initial order went I would be looking to/interested in placing more orders over the future months & years for approx 45-50 more videos'' | That because I didn't proceed to ever place those orders I 'breached contract', and thus should be liable to pay her the full sum of money that she would've earned if I had placed all those orders.
    2. That because I told mutual-associates of ours about what she had done, and because that information then apparently got circulated amongst people, and was apparently was heard about by 1 of the brands which she regularly worked for as a self-employed contractor, that because she then was ''driven out'' of working for that brand, and because there was apparently an 8-week period until she started regular work for another brand (again merely as a self-employed contractor), that I should be liable for the money which she claims she would've earned from Brand A during that 8-week period if she hadn't ceased working there/had been offered work by them during that 8-week period.

      She hasn't provided any evidence showing any letters from Brand A as to any reason why she wasn't offered work during that 8-week period, has simply provided copies of private messages which I exchanged with mutual-associates of ours in which I told them what she did.And the only mentions of any future orders by me were simply, as I stated, messages where I said that I would be 'looking to/interested in' placing future orders, depending on how this 1st order went.


      *The rest of her evidence is simply just screenshots of various random people saying unpleasant things to me on Twitter, none of which/or whom are of any relevance whatsoever to this matter, and all of which occured many months after this matter even.


    I am now trying to formulate, and then write in a clear & concise manner my reasons why I believe I have a good chance of successfully defending the claim, and will then read that statement out to the judge at the hearing.

    I have posted below my 1st attempt at drafting this verbal-statement, but so if any of you would please be kind enough to review it for me, and let me know if it looks ok from a legal perspective, that would be greatly appreciated?

    #

    ''I believe I have a good chance of successfully defending the claim made against me by the defendant due to the fact that the defendant's claim is without merit.

    The basis of the defendant's counter-claim is in 3 parts-
    Firstly, despite the evidence clearly showing that I never placed orders for dozens of video clips,
    merely expressed an interest during conversations that I would be looking to/interested in placing orders in future for 45-50 more videos over the future months & years, depending on how this 1st order went, as I had ideas in my mind for storylines for the scripts of dozens more videos...
    The defendant is claiming that if I had placed though hypothetical orders in future, that she would've then made £xxx amount of money, and so her claim is for that sum of money.

    I feel I have a good chance of successfully defending this part of her claim because-
    A. Merely expressing an interest in placing orders for a product in future, dependent on how the 1st order goes, in no way whatsoever constitues as a legally-binding contract which compels me to place those hypothetical future orders.
    B. Even if this had been a contract, the terms of it would of been deem unfair in accordance with the Consumer Rights Act (2018) due to that it would of contained a clause which allowed the defendant to withdraw from it at any time with no financial penalty (as is shown in the evidence), but would not of afforded me that same right.
    C. As the evidence shows, the defendant, after having produced just 3 videos for me, stated to me in writing that if I wasn't satisfied with the quality of the work that she would refund me the rest of my money.
    This clearly shows what the 'cancellation policy' was, as set by the defendant herself, that I could cancel my order for any 'paid but not yet produced' videos, and recieve a refund of my money.
    Moreover shows that there was absolutely no notion whatsoever that I would be liable to proceed with placing orders & paying for dozens more videos in future merely because I had expressed an interest in them.
    D. As the evidence shows, the defendant herself terminated any dealings/or communication with my by ignoring my emails and then blocking me on Twitter (our primary method of communication), thus making it clear she wished to terminate any future dealings with me.
    Therefore even if I had wished to place any future orders from the defendant over the future months/years, the defendant herself terminated that possibility, but yet is now trying to claim money for it.


    Secondly, the defendant claims as part of her counter-claim that because various indviduals who were associates of mine and/or directly involved in this matter were told that the true facts about how the defendant had only completed 1/2 of the order which she had been paid, but then blocked me and kept the rest of my money (around £1,450 | money which she had been paid specifically designated to be used to pay other individual's wages),
    that because the news about what she had done apparently got circulated amongst various people, that apparently this caused damage to her reputation, and apparently that was the reason why she ceased working as a self-employed contractor for a certain brand on a certain date.

    The defendant has subsequently claimed that because she apparently did not do any work, as a self-employed contractor, for that specific brand for a period of 8-weeks, that I should be liable to pay her the sum of money which she claims she would've earned if that specific brand had chosen to offer her work during that 8-week period.

    I feel I have a good chance of successfully defending this part of her claim because-
    A.
    This is a claim based on alledged Libel. However the Civil Procedure Rules clearly state that claims for Libel must be be started in the High Court, as the County Court does not have the jurisdiction to hear or consider claims of Libel.
    The defendant however started this claim in the County Court.
    B. The defendant has provided no evidence showing that I personally was directly responsible for any alledged loss of earnings experienced by her, instead is relying on pure speculation as to any potential reason why a specific brand may of opted to not offer her work, as a self-employed contractor, during a certain period of time.
    Moreover as the brand in question was simply hiring her as a self-employed contractor they would of been perfectly within their rights to simply choose to not offer her/anyone work during certain periods of time for any number of possible reasons/or without even providing a reason.



    And the third part of the defendant's counter-claim is for sums of money which she claims she 'wishes she had charged me for', but which were never mentioned nor included in the price quotes which she gave to me when quoted me the prices for the products which I had requested to order from her.

    She states that she should of charged me a higher price than she did, and should of also charged me for various other production costs which she incurred.
    However this would ofcourse be totally unenforceable, as she is quite simply creating additional hidden charges, which were never included in the original prices which she quoted/which I agreed to, and then attempting to now in retrospect claim I am liable to pay her those charges''.



    How does that sound as a verbal-statement though please?

    And have I missed out any points of law/or mis-worded anything in that statement?



    Thankyou so much inadvance



    • SaucySecrets
    • By SaucySecrets 16th Sep 19, 5:56 PM
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    SaucySecrets
    When I saw that username I thought you were the defendant for a minute!
    Originally posted by BoGoF
    I made this account at 17, I really wish I'd picked a different name!!
    Signature down for maintenance
    • October868
    • By October868 16th Sep 19, 5:56 PM
    • 86 Posts
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    October868
    It's not a libel claim because she has claimed for a specified loss. She has explicitly stated it's for loss of earnings so that's what it is. If it was a libel claim you would both need legal representation which you've said you can't afford so it's probably best not to go down that path anyway.
    Originally posted by waamo

    Hello and thankyou for confirming that.

    I thought that because she is claiming that this apparent loss of earnings was directly linked to/and the result of apparent libel from me, that the claim would then be a libel claim.
    *As I thought loss of earnings claims would only work in practise if you were dismissed from a job unfairly/or suffered an accident which meant you couldn't work - However neither of those apply here, as she is claiming that she left the job due to the libellous claims which I made.

    Ultimately you know more than me about law though, and so if you say that even though she claims her alledged loss of earnings is due to libel statements made by me, that that wouldn't make it a libel claim, I will take your word on the matter.
    • SaucySecrets
    • By SaucySecrets 16th Sep 19, 5:57 PM
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    SaucySecrets
    In her counter-claim she has even used the word libel/libelous though.

    And has claimed that this alledged loss of earnings was because her reputation was damaged due to things said by me about her to other people, which resulted in her having to cease doing certain work (do directly due to the alledged Libellous statements made by me).


    I know that I know virtually nothing about the law, but how can she claim for 'loss of earnings - caused due to reputational damage due to libel | but that not be a claim for libel?' :S
    Originally posted by October868
    As Waamo says, you don't want to push this unless you want the case referred to the High Court, where you'll incur a lot more costs. She isn't claiming for libel - she's claiming for loss of earnings from your libellous statements. There is a legal difference. If she won't be able to prove that you've made libellous statements, this probably isn't anything to worry about. If she might, it might be. Hopefully the solicitor you spoke to gave you an idea of whether this bit was likely to succeed?
    Signature down for maintenance
    • Fosterdog
    • By Fosterdog 16th Sep 19, 6:04 PM
    • 4,335 Posts
    • 7,544 Thanks
    Fosterdog
    Why can't you keep all of this to one topic? It's getting to the stage of spamming now.
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