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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9586
Experience:  I have been practising for 30 years.
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My (small) business is threatened with legal action by a

Customer Question

My (small) business is threatened with legal action by a large company over non-payment of fees from a contract originally agreed in 2010 and renewed each year until renewed for the following year in October 2013. They withdrew service because of non-payment (as they were entitled to do) and eventually the contract ended in September 2014 I had sent a 'final' payment in March 2015 but this was not accepted as such in April that year when legal action was threatened but not acted upon until 15 months later - when I had imagined that, in fact, they had agreed to my arguments. We had paid for our actual usage but not the minimum sums we had guaranteed. Business had fallen off. Any advice?
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Customer: replied 1 year ago.
Hello Ben - any questions?
Expert:  Ben Jones replied 1 year ago.

Based on what you have described, what would be the ideal outcome for you in this situation so that I can look at your options?

Customer: replied 1 year ago.
I have discussed settlement figures with them but they claim their case is perfect and want more than we can afford. My question is will they have to provide the court with full details of their performance under the contract - since October 2013 , before 2013?
I would agree to a chat but I have to leave for a meeting shortly and can only pick this up later today.
Expert:  Ben Jones replied 1 year ago.

That's OK; no problem at all and thank you for the additional information. Please leave it with me. I am in court for the day and will be travelling until late so I won't be able to reply until the morning. However, I will prepare my advice during this time and will get back to you at the earliest opportunity. There is no need to check on here as you will receive an email when I have responded. Thank you.

Customer: replied 1 year ago.
What time in the morning? They have demanded a reply by 5 pm today - otherwise they propose to start proceedings (they have sent a letter before action). I think they are playing bullying tactics, when I have tried to be co-operative, We had traded with that company (and predecessor company) for 15 years, during that time they had got more than £1 million of business from us! The claim is for £46,000 plus interest (£15,000?). They offer £30,000 over a 15 month period.
Expert:  Ben Jones replied 1 year ago.

ok I will leave this question and open it up for anyone else to assist you if they can today

Customer: replied 1 year ago.
Okay, BenThanks - maybe speak later. To be honest I was astonished by the hardening of their attitude at a (private) mediation meeting yesterday.
Expert:  F E Smith replied 1 year ago.

I see that Ben has opted out. I will try to help you.

When you said the payment in 2015, how did you word the letter? Did they cash the cheque? Did the cheque come from you or your solicitor or accountant?

Do you accept that the amount they are claiming is the amount they are entitled to and if not, why not?

I need the detail to the substance of the claim and any potential defence you have please. Thanks

Customer: replied 1 year ago.
In a meeting - will send documents this afternoon.Thanks,Tony
Expert:  F E Smith replied 1 year ago.

No problem.

F E Smith, Advocate
Category: Law
Satisfied Customers: 9586
Experience: I have been practising for 30 years.
F E Smith and 3 other Law Specialists are ready to help you
Customer: replied 1 year ago.
Please see atachments
Customer: replied 1 year ago.
I received a phone call but no-one at the other end. Just (bad) music..
Customer: replied 1 year ago.
I had a phone call but no-one the other end. Just (bad) music.
Customer: replied 1 year ago.
Upload for more files doesn't now work has message javascriptvoid(0)
Customer: replied 1 year ago.
Is this dead from your viewpoint?
Expert:  F E Smith replied 1 year ago.

I’m afraid that I’ve been off-line for some time. We have clients and travelling.

I apologise for the delay in getting back to you. I see that you’ve requested a telephone call but before that, I need some more information from you please.

Why did you not pay the invoices?

They say that you carried on using their data after the date of termination. Is that true?

If they take you to court and win, and they immediately got judgement for £46,000, presumably you would not be able to pay that. If they put the company into liquidation, what problems would that cause for you?

I see all their allegations but I need to know what your defence is to their claim. Thanks.

Customer: replied 1 year ago.
Thanks, ***** ***** day and I had switched off. just 10 minutes before your email. The word document included some of my defence did you not read that. Does the manner in which they said that TDA could not supply us have any influence? I did not pay the bills because business was declining due to competition which eventually we gained an injunction against. My main question is - do they have to prove delivery of the product according to contract in court to win their case? Should we have a chat now?
Expert:  F E Smith replied 1 year ago.

Thank you. Don’t worry about the delay. It happens to us both. The fact that you may not have the money to pay the bills because of the decline in business is not relevant to whether you owe it or not. It may be grounds for negotiating different terms but until those terms are negotiated, the existing terms are extant. There is a reason behind it but not a defence.

When you refer to the manner in which they said they would not supply you, I presume you are meaning the part where they say they will not give updates if you do not pay the monthly commitment.

It is a matter of degree.

If you didn’t pay them and the day after the payment was due, they wound the contract up, it’s likely they would be held in breach. Many agreements provide for businesses to no longer supply when payments are 14 or 30 days late. In your case, they say that you didn’t pay from May to October 2014 but still used the data. Whether you used the data or not is a matter of factual evidence. If you used it, you are obliged to pay for it.

There is a potential issue with payments being late as to whether that’s a substantial breach which would entitle them to terminate the contract. A court would look at the nature of that and the length of time.

Ultimately, whether they would be entitled to terminate the contract at the date they did terminate it would depend on what the financial situation was that date. There is also of course there are alleged to usage by you, of the data after that date which, as I said earlier, comes down to factual evidence and whether you did use that data or not.

Customer: replied 1 year ago.
39;Usage' after the date of cancellation is subject to some interpretation. We had provided clients with 'counts' for prospective orders and delivered those orders after the end date - but the delivery from the supplier to US was before the date - however, we reported it after the date. It isn't their primary point.My question remains - do they have to prove delivery as specified in the contract to claim their money?Phone call now??
Expert:  F E Smith replied 1 year ago.

I’m not certain what you’re getting at. Are you saying that they didn’t provide delivery of what they are asking to be paid for?

Expert:  F E Smith replied 1 year ago.

I can speak to you about this and submit a premium services proposal again but I’m not going to have time to be able to do that until midday. I have clients this morning.

Customer: replied 1 year ago.
Okay, I wont be here at midday. What I don't understand is what happened to the other phone call. I was left hanging for ages listening to rubbish music.
Tony
Customer: replied 1 year ago.
I can take a call from my office at midday or omn my mobile - how soon would you call after I provide the number. Last time there was simply no-one there.
Tony
Customer: replied 1 year ago.
are you available now?
Expert:  F E Smith replied 1 year ago.

I don’t know anything about the previous telephone call because I didn’t accept the proposal. It may be that someone else accepted the proposal and then got cut off. I don’t deal with the administration of the site, I just answer the questions.

When I submit the proposal I am here. If you were to take up the proposal several hours later, I may be with the client. At some stage, we can meet in the middle.

Expert:  F E Smith replied 1 year ago.

For some reason, the system will not let me submit another proposal. If you let me have your telephone number, I will call you briefly pro bono as I will not be paid for it. Best wishes.

Customer: replied 1 year ago.
Okay, we will be quick. Office number is(###) ###-####5000
Customer: replied 1 year ago.
Thank you Mr. Smith Best wishes, TD
Expert:  F E Smith replied 1 year ago.

We have now spoken at length. I hope it was useful. Please let me know you get on. Best wishes.

Customer: replied 1 year ago.
How can I best do that? Call me again ion Monday (briefly).
Expert:  F E Smith replied 1 year ago.

You can always post up again here.

Best wishes.