**termination with no notice - breach of contract**court case *help needed*

[TheFaQQer]

All evidence must be presented to the other side well before the court hearing. If they haven't provided "proof" at that point, they would not be allowed to in court.

It's not for the agency to prove that they did not receive money from the client, it's for KittyCat to prove that on the balance of probabilities the agency received the money.

As I said a while back - Semper necessitas probandi incumbit ei qui agit.

[psychocandy]

Kitty - so has it got as far as court date planned yet?

[TheFaQQer]

Kitty - so has it got as far as court date planned yet?

It's already in court, if you read posts 21 and 24:

This happened over a year ago & has taken this long to get to court
...
I then have avoided costs but now need in Court - although their soliicitor was a right numpty

The judge stated she could not understand why the agency thought there was no case to answer as clearly there was

So, it's already in court / been through the courts. Unless I'm misreading those posts (they do take some reading!) and it's not in court or had a judgement yet

[KittyCat]

Your termination clause in itself isn't unfair.

It states that the agency and client have to "consult" i.e. have a conversation before you are terminated.

It doesn't say they have to be reasonable in their reason for terminating you. As long as they haven't broken any discrimination laws they haven't breached the contract if they talked to the client.

There was nothing stopping you getting the contract reviewed by a solicitor or even you negiogiating the contract yourself and getting the word "reasonable" put in that clause. You can do this however large the agency claim to be.


When you are in the court room then there is nothing to stop you asking for the proof again.

As long as you are polite, don't name call and in particular don't call the agency "liars" the judge will see them for what they are.

Especially if you ask them more than once in more than one way, pointing out:
a. that it's an important point in their defence.
b. that you asked them previously with particular dates and they still refuse to provide that information (It helps if you have written proof of asking them.)



BTW did you do a Data Subject Access request directly with the client to find out what personal records the client has on you as a person? This may help you to find out if the agent didn't consult with the client.




You should really not name call people on this board just because they don't agree with you.

You don't actually need us to agree with you, it's actually more help if we throw up arguments you didn't think off otherwise once you get into the court room you will be stuck if the judge or the agency's solicitor make the same points.

Actually it does say they have to be 'reasonable' in the clause, & I accepted as the T&C's were given after I accepted - I accepted on the Assignment Schedule & several emails - which stated notice both way (highlighted in Bold) - also the T&C has the clause of any term being illegal.
An email stating non-performance in the role is slander & that is why I'm still trying to get the proof from the agency / client of who stated this & the detail - the agency wont supply. So even though I have told them it is 'not consistent with the facts' they will not tell me the source so that I can defend myself & did not give any opportunity to my company to defend/rectify/substitute etc - hence going to court - the very least that should have happened is the notice should have been given and/or paid - I can prove the facts - they cant - as they are lies.

You've assumed I called someone a name? not so. & yes good prep for the case for my argument/s & relieve my anger at how agencies/clients think they can bully people & do what the hell they like.

[malvolio]

An email stating non-performance in the role is slander

I'm losing the will to live with this thread, but if this is a measure of your preparation you may be in more trouble than you think. An untrue statement in an email would be lilbellous.

HTH

[KittyCat]

All evidence must be presented to the other side well before the court hearing. If they haven't provided "proof" at that point, they would not be allowed to in court.

However, remember this is a civil case - neither side needs to "prove" anything - never mind the fact that it is impossible to prove a negative - you can only prove that did receive something, not that you do not receive something.

Kitty may well raise the fact that she has asked for evidence that they have not received the money - and can point to the fact that no such evidence has been provided. Kitty can ask them outright whether they have received the cash - and they can simply state that they have not, but it is extremely unlikely that they will need to "prove" it. The judge will then work out a) who's more likely to be correct on balance of probabilities and b) is it relevant

I can prove that the notice period is a fundamental part of the contract (& under the Emp Regs)

I can prove the T&C's (small print/hidden clause) undermined the assignment schedule & is in direct contradiction to the offer & acceptance (& against emp regs)

I can show it is unfair as it stands (as it means anyone can say anything etc with no proof)

I can show the specific client for the assignment agreed to the notice (the T&C is generic)

I can also show no agreement in the agency/client service contract of any such clause

& finally I will show the agency terminated the same day the client did (so no consultation) & that they will not provide any proof of the proceedure/consultation that took place (there should be one under emp regs) etc. I will prove I was not given notice or payment in lieu of notice. The only thing they can use to defend is the clause - but that clause must be taken into account with the whole scenario - offer/acceptance/assignment/Emp Regs/UCTA/slander/Misrepresentation/ - & finally IF it is found that all that is within the law - they then need to show that clause ACTUALLY took place?

[TheFaQQer]

I can show it is unfair as it stands (as it means anyone can say anything etc with no proof)

Is it unfair (i.e. you don't think it's fair), or Unfair (i.e. falls under the Unfair Contract Terms Act). There is a vast difference here.

they then need to show that clause ACTUALLY took place?

No - you need to prove beyond the balance of probabilities that it did not take place. You are the one alleging that it did not happen, but under English law it is the person making the allegation that needs to prove it, not the other way round.

By the way - when is the case in court?

[tractor]

..

I can prove that the notice period is a fundamental part of the contract (& under the Emp Regs)

I can prove the T&C's (small print/hidden clause) undermined the assignment schedule & is in direct contradiction to the offer & acceptance (& against emp regs)

I can show it is unfair as it stands (as it means anyone can say anything etc with no proof)

I can show the specific client for the assignment agreed to the notice (the T&C is generic)

I can also show no agreement in the agency/client service contract of any such clause

& finally I will show the agency terminated the same day the client did (so no consultation) & that they will not provide any proof of the proceedure/consultation that took place (there should be one under emp regs) etc. I will prove I was not given notice or payment in lieu of notice. The only thing they can use to defend is the clause - but that clause must be taken into account with the whole scenario - offer/acceptance/assignment/Emp Regs/UCTA/slander/Misrepresentation/ - & finally IF it is found that all that is within the law - they then need to show that clause ACTUALLY took place?

The law is an ass. True story. If your case is reliant upon one set of regulations supporting or even not contradicting another, you may well be on to a loser.

To illustrate a point, look at how the Rehabilitation of Offenders Act is substantially undermined by the Police Act 1997. I use this example because it also relates to employment law.

I haven't re-read the thread yet so I have to ask the question; Did you not realise that you could have taken advantage of PCG (or other) insurances to mitigate the chance that an Agent/Client would breach a contract?

[KittyCat]

It's already in court, if you read posts 21 and 24:





So, it's already in court / been through the courts. Unless I'm misreading those posts (they do take some reading!) and it's not in court or had a judgement yet

Its been allocated to fast track & the Agency tried to get it dismissed - they failed. Directions have been given & it is planned for the new year -Disclosure lists have been done & requests have been made - which should be honoured within 7 days apart from witness statements which must all be exchanged by the end of Nov. As it stands I have honoured the requests for information on my disclosure list except the witness statements from myself as contractor & separately as director. My requests have not been honoured - the agency disclosure list contains no witness statements (not even the one from the consultant they have already issued) it contained a number of emails between the agency/client & then court documents - I've requested the emails & to know if any there are any witness statements - I have received no reply. Should I add the recruitment consultants witness statement to my disclosure list to make sure I can submit in court - as in it there is the lie that discussions were taking place - yet I have an email stating the first the consultant knew was the day they told me. Also the recruitment consultant that made the offer is not the same one that communicated the termination & had not been at the agency long (I'm wondering if they are still there?)

[prozak]

Its been allocated to fast track & the Agency tried to get it dismissed - they failed. Directions have been given & it is planned for the new year -Disclosure lists have been done & requests have been made - which should be honoured within 7 days apart from witness statements which must all be exchanged by the end of Nov. As it stands I have honoured the requests for information on my disclosure list except the witness statements from myself as contractor & separately as director. My requests have not been honoured - the agency disclosure list contains no witness statements (not even the one from the consultant they have already issued) it contained a number of emails between the agency/client & then court documents - I've requested the emails & to know if any there are any witness statements - I have received no reply. Should I add the recruitment consultants witness statement to my disclosure list to make sure I can submit in court - as in it there is the lie that discussions were taking place - yet I have an email stating the first the consultant knew was the day they told me. Also the recruitment consultant that made the offer is not the same one that communicated the termination & had not been at the agency long (I'm wondering if they are still there?)

remind me how many 10's of thousands pounds we are talking about here?

seems like a lot of effort.