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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi, Joshua, This is a follow up enquiry from my question on

Resolved Question:

Hi, Joshua,
This is a follow up enquiry from my question on 14 March.
Would my best defence be with a counterclaim for lost business and customers?
Submitted: 3 years ago.
Category: Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

with your permission may we resume with this in the morning? I should be available most of tomorrow. would that be alright?

Customer:

Yes of course.

Joshua :

my apologies for the delay in reverting to you. How may I assist you?

Customer:

Hello, I am back

Joshua :

Hello. How may I assist?

Customer:

Hi, Joshua, This is a follow up enquiry from my question on 14 March. Would my best defence be with a counterclaim for lost business and customers?

Customer:




















Joshua, between you and me, I am not simply trying to get out of paying what I owe.
I am a small business man who is trying to do the best for my family in an honest way.
My wife is only just recently recovering from a thyroid cancer and my son has a liver
decease. I have 4 children and all I want is to keep a roof over their head and do the
best I can for them. I don't really want to sit there fighting legal battles.
So if somehow there was a reasonable compromise tomorrow I will take it.
Joshua :

Thanks. I am sorry to hear of your wife's condition but glad to hear she is making a recovery.

Joshua :

Have you been able to identify and actions of the company beyond that provided for by its terms and conditions please?

Customer:

No. All I have is verbal agreements.

Joshua :

Thanks. Have you asked for a copy of the terms and conditions of business?

Customer:

No

Joshua :

thank you. The first step in my view would be to obtain a copy of the terms and conditions of business in particular the terms that govern credit terms from the other party. From there, it is a question of analysing their actions in respect of those terms and conditions and identifying any actions they have taken which are beyond the remit of those terms. In addition, if they have applied payments in a manner contrary to your instructions in any covering letter, this is another basis upon which you can claim a breach of contract.

Joshua :

if you are able to demonstrate a breach of contract in either of the above heads, then it follows that if you have suffered losses as a direct result of those breaches, you have a potential claim for damages they would need to be older demonstrate that a loss you have suffered was a direct consequence of one or more particular breaches

Joshua :

as to whether a counterclaim would be your best course of action would depend upon whether you can demonstrably show that you have suffered losses significant enough to justify a counterclaim as a consequence of breaches that you are able to identify. If the losses do not amount to a significant sum, then it may be better to focus on simply defending against their claim rather than issuing a counterclaim. however, if you can demonstrate substantive losses as a result of any breaches you can identify, then you may well wish to consider a counterclaim as a means of response in addition to the defence

Joshua :

is there anything above I can clarify for you any further?

Customer:

Yes Please. I have only 2 days left to file defence, so obtaining their terms and conditions might not happen in time.

Joshua :

Have you considered acknowledging the claim rather than is submitting a defence straightaway? if you return the form from the response pack you have received from the court ticking the acknowledgement box, the length of time you have to respond to the claim will be doubled from 14 days to 28 days

Joshua :

as an alternative, if you do not yet have the terms and conditions to hand, you could consider claiming a breach of the terms in additions and placing the burden of proof upon the other party to demonstrate that they have not breached the terms and conditions you claim

Customer:

I have already already applied for extra time

Customer:

Furthermore I have written my sample defence with 12 points. Can I paste it here for advice of what I should keep or remove from my defence?

Joshua :

Certainly

Customer:



















































































**Traded with COMPANY for over 4 years.
**Due to their internal Accounting problems my account was messed up
**Even though they made errors I offered them a repayment plan with Stock which they agreed
until my balance reduced to a level they are happy with
**However by the 2nd transaction they accepted my PAYMENT but 2 days later they refused to send me stock
This dishonest action had a massive impact on my business.
**I pleaded with them to send me my stock as my customers were waiting.
MAN told me that the Accounts Dept would not send the goods out and it is not his fault.
I asked for my £750 to be returned back to me to buy stock elsewhere to no avail.
**COLLECTORS sent me a demand for incorrect amount. Being a Collection Agency they should
have had evidence from COMPANY to support the claim. I called COLLECTORS
and told her the claim was wrong. She appeared to be helpful and that she will look into
the matter. On the Oct 2013 she emailed me a new balance of £3485 with no supporting
evidence. On the of November I received another email saying the balance was reduced.
**Even though they were still getting things wrong I offered my original deal but they refused.
I told them I can not make them any other deal until they can show me how I owe the money.
**MAN phoned me on of February the day after I received their solicitors letter, hassling
me to buy stock. Why hound me already damaged my business.
**Why did COMPANY do all this to me, I never refused to pay, I tried to sort this out.
I only ever showed good will and trusted whatever they told me on the phone.
**I intend to defend my case as my account and trading with COMPANY would still be in
place If it wasn't for mistakes made by their Accounts Dept and COLLECTORS and would not be
here now if they acted professionally, and within the rules.
**Because of our previously good business relationship, faulty stock which I would of just written off
would now like compensated.
**This ordeal has cost my business a lot of losses and customers lost, but also unnecessary
stress to me and my family.
Customer:

I ommited the names of people and companies only because this is online. I will use names on Defence

Joshua :

Point 2 - I would consider replacing the words "messed up" with a more detailed description of what occured.

Joshua :

Point 3 consider going into more detail about was agreed

Joshua :

Point 4 consider explaining the terms you offered payment upon and that they accepted payment but then did not honour the conditions you set

Joshua :

Point 6 consider going on to state that he puts the claimant to strict proof in respect of any claims on costs they claim against you

Joshua :

Point 8 consider replacing "man" with a company representative or debt collectors representative is appropriate

Joshua :

you may wish to consider on the above basis a counterclaim in respect of faulty stock and so far as you claim they have breached agreements and terms and conditions, any loss of business you can show you have suffered as a consequence of those breaches

Joshua :

is there anything else I can help you with from the above?

Customer:

Thanks, XXXXX XXXXX alter the above, but as far as counterclaim can I do that on a later date?

Joshua :

Yes you can but if you decide to do it as a later date after filing your defence, you need to ask the court permission to do so and will need to explain that you chose to delay your counterclaim until such time as you could obtain further evidence you required in order to frame the counterclaim

Customer:

I have to pick my daughter from school, be back in a bit

Joshua :

No problem.

Joshua :

If there is anything else I can help you with please let me know.

Joshua :

Are you happy with all of the above to date?

Customer:

Thanks, XXXXX XXXXX have less chance of getting a good outcome by not counterclaiming?

Customer:

This is my revised defence. You made no comments about 9 10 11 12. Is my overall defence too long? and how do you see it?

Customer:











































































































1 **Traded with COMPANY for over 4 years.
2 **Due to their internal Accounting problems my account went over 90 days old. Clear funds of
£800 and £750 were not applied or showed anywhere, and only showed as a total 2 months later
3 **Even though they made errors I offered them a repayment plan with Stock which they agreed
until my overall balance reduced to a level they are happy with. The agreement was that for
every Order placed I will send an extra £200 above the value of the Order to reduce overall balance
They also reassured me that whilst they are still getting sales out of me and reducing the balance
they will forget about the 60 and 90 day rules. Rest assured I was told you keep your deal and we
will keep ours.
4 **However by the 2nd transaction they accepted my PAYMENT of £750 which was for £550 for stock and £200
to go towards my overal balance as agreed. 2 days later Wayne in Accounts Dept refused to send me stock
This dishonest action had a massive impact on my business.
5 **I pleaded with them to send me my stock as my customers were waiting for stock which some
had already pre paid for. MAN told me that the Accounts Dept would not send the goods out and
it is not his fault. I asked for my £750 to be returned back to me but was told it is very difficult
for a company of their size to simply pay money back, it would take days and a number of
different people would have to authorise it. Not that simple I was told.
6 **COLLECTORS sent me a demand for incorrect amount. Being a Collection Agency they should
have had evidence from COMPANY to support the claim. I called COLLECTORS
and told her the claim was wrong. She appeared to be helpful and that she will look into
the matter. On the Oct 2013 she emailed me a new balance of £3485 with no supporting
evidence. On the of November I received another email saying the balance was reduced.
7 **Even though they were still getting things wrong I offered my original deal but they refused.
I told them I can not make them any other deal until they can show me how I owe the money.
8 **MAN phoned me on of February the day after I received their solicitors letter, hassling
me to buy stock. Why hound me already damaged my business.
9 **Why did COMPANY do all this to me, I never refused to pay, I tried to sort this out.
I only ever showed good will and trusted whatever they told me on the phone.
10 **I intend to defend my case as my account and trading with COMPANY would still be in
place If it wasn't for mistakes made by their Accounts Dept and COLLECTORS and would not be
here now if they acted professionally, and within the rules.
11 **Because of our previously good business relationship, faulty stock which I would of just written off
would now like compensated.
12 **This ordeal has cost my business a lot of losses and customers lost, but also unnecessary
stress to me and my family.
Joshua :

may I clarify that the words in capitals have been substituted for privacy?

Customer:

Yes

Customer:

I would be using their names and full company names on defence plus actual dates

Joshua :

Thanks. This looks fine. you do not prejudice your position with regards XXXXX XXXXX defence of the claim against you by not issuing a counterclaim. By not issuing a counterclaim, you simply deprive your right to claim monies against the other party if you believe you are owed them as we discussed above.

Customer:

I see

Customer:

One thing I forgot to mention is Pre Action Conduct or should I let the judge decide if they complied or not?

Joshua :

they should have written to you before issuing proceedings in order to request that you settle or that they will in the alternative issue proceedings against you. However in small claims cases minor trasgressions of the civil procedure rules rarely have a significant impact

Customer:

Thanks

Joshua :

If I can assist any further as the situation develops please do not hesitate to revert to me

Customer:

Thanks, XXXXX XXXXX be in touch.

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

Customer:

Thanks and have a nice day.

Joshua :

And to you.

Joshua, Lawyer
Category: Law
Satisfied Customers: 25358
Experience: LL.B (Hons), Higher Prof. Dip. Law & Practice
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