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JimLawyer
JimLawyer, Solicitor
Category: Law
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Experience:  Senior Associate Solicitor
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I’ve today been threatened with legal action from a

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Hi there I’ve today been threatened with legal action from a childminder regarding a university grant. The grant pays for 85% of the childcare but has had to be extended due to COVID-19 and this has obviously come with delays. Just wanting to know where we stand if it gets to that stage. As there’s nothing further that we can do, we’ve actively chased it for months and always acted urgently as soon as something comes through for us to do to ensure this is paid to the minder, all of the delays are at the university’s side and there’s nothing we can do
JA: Where are you? It matters because laws vary by location.
Customer: hull
JA: What steps have you taken so far?
Customer: legal action threatened today so this is the first step for me
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Nothing other than the period that the minder is claiming for she didn’t have our child once during that period and we kept the contract going essentially as a favour. We had also given our notice to reduce the data from 5 to 3 and had allowed her to keep claiming for 5. Likelihood is it’s just a moral issue from her end and a legal issue from ours as the contract is between us and the minder

Hi, this is Jim, thank you for the question - I will do my best to resolve this quickly for you.

Sorry to hear of the issue. It sounds like the potential claim has no merit from reading your question.
It is not your doing - Covid has obviously caused the delay and not only that, the minder is claiming for monies despite not having your child for the period, so her claim is significantly flawed. As a claimant the burden is on them to prove their claim. They may well be penalised by the court for bringing a claim without merit - the claim can be struck out if she does go on to issue one against you. If she sues you, she has to show you are to blame for her loss. I doubt she will be able to do this.

If they do sue, you will receive court documents (a response pack) which you must complete and return to the court. It is a tick box exercise for the most part and there is a short section to write a defence which is easy enough though please feel free to come back to this site if you need any more help. A claim will also take 6-12 months to be decided at court. If you lost then you would get 14 days to pay the judgment before the claimant can enforce the order, and 30 days to pay in full before it is registered with credit agencies. The claimant cannot recover legal costs if they win, in a claim under £10K (a small claim), all they can claim are the court fees and interest. Once you file a defence you have the option of applying to strike out the claim as it would have no merit in my view. I can guide you with the application - the court would grant it if the judge was satisfied the claim had no merit and there was no reason why the claim should continue.

I hope this helps and answers the question which is easy to understand - please feel free to ask me anything else. I will reply as soon as I can to help with any further queries.

Thanks for using our services and have a good day,
Jim

Customer: replied 15 days ago.
Hi Jim, thank you for your response. This is reassuring. So just to re-iterate her angle before I go and calm the situation down. These are the correspondence we’ve had from her today.“ I’m getting really fed up of waiting now, if I don’t hear anything from you by the end of November I am going to seek legal advice and take court proceedings regarding breech of contract for payment (meaning you are responsible for the payment as the contract was with you and not the university), I hope this is sorted out soon.”
Customer: replied 15 days ago.
8220; As I said earlier the contract is with you and not the university/student finance, so it’s to your best interest to get this sorted out or the payment will be left for you to pay me and then you get it back from the Student finance.”
Customer: replied 15 days ago.
Every time we chase this up with the university this is the response we get.
Customer: replied 15 days ago.
the latest and what looks like the final form was completed immediately by us and this was the response we received on this. So as I say, we have done everything promptly when expected and chased up whenever asked and all of the delays are with the university

I would reply to her to reiterate this is outside of your control, that as a claimant she needs to mitigate her losses and that means not issuing court proceedings at this stage - the pre-action protocol states that litigation should be a last resort. You have a defence given Covid is an intervening and external event, which can postpone a contract (or, if performance of the contract is impossible or not possible for the foreseeable future, it frustrates a contract). There is not much more you can do at this stage - it is out of your hands. If she does issue a claim then you will have no choice but to defend it. Which will take several months, but it's her choice. By suing you, it will not speed up the processing of the grant.

Customer: replied 15 days ago.
Regarding her not having the child. Because we didn’t give permanent notice to terminate the contract or reduce to 3 days (as a favour) we/the university would still have to pay full monies until the notice period has ended

Thanks, ***** ***** say, the contract has been affected but you will need to defend a claim if she chooses to issue one. If I was acting for her I would be recommending she takes court action.

Customer: replied 15 days ago.
Ok so to summarise this,if you were acting for her you’d advise to take legal action against us? But you think that we would have a case to argue due to external factors such as Covid and us doing everything we can to speed things up? Thanks for your help on this

Sorry, no, I would not recommend she takes court action. Sorry for the typo. You have a defence due to Covid - there is nothing you can do to speed matters up plus she has up to 6 years to sue for breach of contract. The question is whether this is breach or not. Covid can make performance of a contract difficult so you could agree to postpone the contract - if she disagreed then she has a prima facie case for breach of contract but as I say, the pandemic is an intervening factor and will support a defence.

Customer: replied 15 days ago.
Ok perfect. Final question sorry for another one, what would happen if the grant monies were paid after legal action was taken? As this is almost certainly going to happen if it will take 6-12 months

Hi there, you could then pay the claimant the money if it arrives during the court proceedings.

Customer: replied 15 days ago.
that essentially null and voids the case?

Yes, as you are then able to pay her claim. She may have incurred a court issue fee though - but you can dispute paying that as she should not have involved the court in this dispute

Customer: replied 15 days ago.
Perfect thank you for your help on this, greatly appreciated!

My pleasure, thanks, ***** ***** good day

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