Enforcing while continuing claim

[steve]

A claimant is suing Fred and Fred Unlimited - a small company solely owned by Fred. Both are being sued as there is lack of clarity about who the claimant was working for. The claim is for less than £1000.

Both Fred and Fred Unlimited have acknowledged the claim but only Fred has issued a defence stating that, yes he owes the money but it is being used to cover alleged damage by the claimant.

Should the claimant simply enforce against Fred Unlimited, or should the claimant accept Fred is accepting full responsibility and proceed against Fred alone?

Enforcing against Fred Unlimited seems underhand, so might the court look dimly on it - perhaps not allowing costs?

[atticus]

If FU does not defend, it has only itself to blame. I am pretty sure that is how a court will look at it.

You will have to give credit for sums received from FU in your continuing claim against F. If you obtain full recovery from FU you will have to discontinue the claim against F.

[shootist]

I do like the abbreviation for Fred Unlimited. I may make use of it myself.

[steve]

Slight problem. Moneyclaim online does not seem to offer the option to Request Judgement. It's been well over a month since the claim was issued.

I'm assuming that a big yellow button should appear next to the Request Judgement line in the Available Options page...

[atticus]

Find the form. Print it. Complete it. Post it.

[steve]

I have the form now, I think - N225.

Re-reading Fred's defence, it seems to have been sent by email and the email indicates that Fred meant to provide the same defence to cover both defendants.

Moneyclaim online is only registering a defence for Fred and has put a "bar" on Fred, so perhaps have not realised that the defence was meant to cover both.

It's not clear to me whether Fred has made the mistake or the court as I cannot see the user interface from Fred's perspective - i.e. I don't know whether there was a button Fred should have pushed to register a defence by FU.

Looking at it logically (if logic applies) it seems to me that the claimant may have no choice but to request judgement and let the court and Fred sort out any confusion as otherwise the case appears to be going ahead with Fred alone.

[atticus]

It is not possible for anyone to comment without seeing the papers. But take care, the court may sympathise with the defendants and quote shooter's new favourite phrase at you. If the intention to defend is clear, all you will achieve is that your claim will be held up in a skirmish that you will lose. Is that what you want?

[steve]

I (helping the claimant) would like to be fair to the defendant to avoid such "skirmishes".

Equally getting to court without it being clear that both defendants are present seems unwise if Fred suddenly decides to say that FU is really responsible.

Part of the issue is not being 100% sure of the status of FU as unlimited company information is not online. I only found out about FU by chance in a google search, and the link has disappeared. Some payments come from a bank account called "FU Services" which is why they are included in the claim. Maybe we need to contact Companies House.

Since we have to send an AQ, maybe Northampton would read a covering letter advising them to review the defence papers?

[atticus]

If Fred has said X in his defence, then you are entitled to proceed on the basis that he means X. If he wishes to change that defence, he will have to seek permission of the court to amend his defence. You will be entitled to explain the consequences (including cost consequences) for you. If (big if) the Court allows an amendment, it may do so on condition that certain terms are met - these may be adjournment, payment of costs etc.

These things may not simply be sprung by one party on the other.

Isn't Fred the director of his company. If he is present, then, in practice, so is the company.

[blig]

Or for £255 you could apply for an "unless" order along the lines: Unless Fred Unlimited file a defence within 14 days then default judgement and costs be entered against Fred Unlimited

Probably that will prompt Fred Unlimited to file a defence similar to Fred and so it might be better to take no action. Fred Unlimited may not have any assets.