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Jo C.
Jo C., Barrister
Category: UK Law
Satisfied Customers: 69367
Experience:  Over 5 years in practice.
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I am currently struggling with a court case in the UK and

Customer Question

Hi,
I am currently struggling with a court case in the UK and have no idea where to turn. First I will do my best to give a bit of background.
Our children were in a private school in the UK in 2013, unfortunately I had taken redundancy and we were unable to keep the children at the school. We gave the school a term's notice and removed the children from the school. Around September, 2013 I was able to secure some employment in Australia starting in February, 2014. I approached the school and asked could the children could potentially return (the reason for this is because we had kept one of our children behind a year at the school and it would have had an impact on her if she had entered the state school system as she would have been put into her correct year group). I would start payments as soon as I started earning money in Australia. The school agreed to this and allowed us to re-admit the children, however they did not get us to sign re-admission forms for two of the three children.
At the end of February the school advised us to remove the children from the school due to not being able to make payments being unable to provide security as it was detrimental to the school. After this event, both my children and my wife were struggling emotionally because I was working overseas. Following the children being removed from school, we decided to move us all over to Australia so we could be together.
We then tried to arrange a payment plan with the school, however they kept changing the amount they believed we owed and we disputed to amount they came up with. They then got their solicitors involved who refused to come to any kind of amicable solution. After a lot of email correspondence where we also asked the claimant to provide the re-admission forms they told us that we had not given notice and the children had not left the school, despite us having documentation proving the contrary.
They continued to gradually wear us down over several months. They did state at one point that they would decide what we would owe once they saw my income and expenditure. In the end I took the advice of a website and asked them to take us to court in the hope they would at least try and negotiate an amicable solution. Unfortunately it backfired and they took us to court and subsequently added more money to the ever increasing costs (in the tens of thousands) in the form of interest, etc. There are also issues with how they served the papers.
We only have my income in Australia and we are not entitled to any benefits, have no savings or assets. We are connected to a house in the UK but signed an agreement right at the start with the the other party's solicitor that we would not be entitled to any money in the house other than a percentage of the profit if it was sold. There is no profit on the house, we do not pay to nor have we ever paid towards the mortgage and we do not pay any bills for the house and we definitely do not reside there. We also have 7 children to support and are not entitled to legal aid in the UK because we do not reside there.
More recently we made an application to challenge jurisdiction but we could not attend the hearing as we live in Australia and it was impractical, financially and otherwise, to fly back to England to attend the it. We were not allowed to dial into the hearing and could only present a defence in written form.
The judge ruled that the English courts are the correct place for the hearing because the services were rendered by the claimant in the UK while we were resident there. It is stated that England is the correct forum to try the dispute and the fact of subsequent relocation to Australia is insufficient to render England an inappropriate forum for this dispute. The claimant claimed we had breached contract while in jurisdiction as they said all fees were due before we went to Australia, however this was not true as no payments were expected until after I had moved to Australia and we have plenty of correspondence to prove this.
We were also ordered to pay costs of £1300 for the application to the claimant (this was unexpected which shows my level of knowledge when it comes to legal cases). The claimant's solicitor has now entered a summary judgement application.
With being unable to afford legal representation, not being entitled to legal aid and with residing in Australia, I am sure you can understand that this has become very difficult for us. We do not know what we should be doing next. Should be attempt to have the jurisdiction hearing set aside? Do we wait for summary judgement? Can the order be enforced even though we are living in Australia? If we are unable to attend nor defend ourselves in the summary judgement hearing, how would we deal with the outcome as it seems only to be a one-sided case? If you could provide some direction or guidance on what we can do, we would be very grateful.
Thanks.
Submitted: 1 year ago.
Category: UK Law
Expert:  Jo C. replied 1 year ago.
Hi
Thank you for your question. My name is ***** ***** I will try to help with this.
Sorry for the delay.
You do not seem to deny owing the money?
Customer: replied 1 year ago.
Hi Jo,Thanks for your reply. I had to skimp on a few details in order to get in the background of the issue. Basically we are in dispute over the amount they have taken us to court for. They have produced over 6 different sets of figures ranging from £10k to £30k (and is now obviously increasing because they are adding interest). They won't accept there is a dispute over the amount owed.We are also not in a position to pay the £1300 costs and were not able to provide a defence for this at the time of the challenge of jurisdiction hearing because we could not attend. I am worried they will achieve the same in their summary judgement hearing and I will be ordered to pay costs and a figure we are disputing when really I believe this should never have gone to court. We have attempted to negotiate again during the court proceedings, but the claimant and their solicitor appear to ignore us and use our inability to defend against us. Instead they simply told us they were going to apply for Summary Judgement because they did not believe there was a dispute.The basic gist of it is we don't believe we owe the amount they have taken us to court for. They are having orders set without us being able to defend ourselves due to us living in Australia and because of cost constraints and it feels like the whole case is being run by them and we have no part in it. We also cannot afford legal representation and, despite the fact it is considered in jurisdiction, we are unable to get help with legal aid in England. It feels very unfairly weighted on the claimant's part and we just don't know what we can do, if anything.
Expert:  Jo C. replied 1 year ago.
Why don't you believe you owe the money?
You seem to accept owing them something?
There is no need to put yourself to detail. Just a few sentences will be fine.
Customer: replied 1 year ago.
Hi Jo,We believe we owe them for the time the children were there at the school, plus the arrears we had with the before they allowed the children to return. We have made a few payments in the past to show willingness, but once their solicitors were involved it all kind of went pear shaped.However, they did allow us to re-admit the children to the school while we were still in arrears and therefore knew we were already struggling to pay. At the end of February, when I had started work, they told us that without security the children could not remain at the school as it was detrimental to the school establishment so we removed them because we could not provide that security. In their terms and conditions it states they can charge the remaining terms fees. They added to both summer and autumn term costs to the arrears we already had with them because said it was our choice to remove the children despite them telling us the children could not allowed to return after Easter holidays because we could not provide security.When they did this we asked them to supply signed copies of the terms and conditions (CAB told us to do this) but we had not signed terms and conditions for two of the three children. Even though we had removed the children from the school the previous year, along with the appropriate notice (which we have evidence of), they claim we never removed the children from the school and the terms and conditions still count.Part of my issue with now owing this extra term is that they are charging us for services (education of our children) that we never received and, if that is the case, I question why the children could not have remained at the school instead of us being asked to leave when we were not able to provide security. They have also added large amounts of interest to the ever increasing amount they claim we owe them.Finally in the terms and conditions they state they will not charge you for the extra term if the place is filled. However they filled all of the places immediately (they have a waiting list) and yet they still charged us.I hope all of this makes sense.
Expert:  Jo C. replied 1 year ago.
thanks for that.
I am really sorry but I still am not sure what defence you are hoping to raise?
Customer: replied 1 year ago.
Hi Jo,I'm sorry if I am causing confusion, this is why I am looking for some guidance/direction.The claimant has made an application for a Summary Judgement and are requesting our defence be struck out due to it being incorrect and that we have never raised the issues with them before, although they then state they have two lever arch files of documentation which they do not want to disclose to the courts.We believe we owe costs up to Easter 2014 but the claimant believes we owe costs up to Easter 2014 and costs up to the end of December 2014.The claimant is asking for a figure of over £30k more than we believe we owe, plus interest.The claimant has never provided us with a statement including interest.Our defence:The children left school in July 2013 after we gave notice and the school at the time accepted that the children had left (we have correspondence from the school confirming this).The school allowed us to re-admit the children into school in mid-September 2013 (the new school year) after several meetings between ourselves and the school. The school agreed (and we have this in writing) that payments would start once I started employment in Australia in February 2014.At the end of February 2014 the school told us the children's places could not be sustained if we did not provide security. We could not provide security and therefore had to remove the children at the end of March 2014.The claimant is stating the children were voluntarily removed from the school at the beginning of May 2014, despite correspondence proving the children were removed from school at the end of March 2014.The claimant cannot provide a signed copy of the terms and conditions for two of the children after they were re-admitted into the school in September 2013. They are stating they do not need them because the children never left school at the end of the school year in 2013.According to the school’s own terms and conditions they will not charge for the extra terms if they are filled.The school filled the school places when our children left in March 2014.They are claiming we broke the contract because all fees should have been paid before I moved to Australia, however we had made an agreement with the school that I would only start making payments after I moved to Australia.I was unemployed before I moved to Australia due to being made redundant in February 2013 which is why the children were originally removed from the school in 2013.With living in Australia, we will not be able to attend the hearing in the UK for the Summary Judgement.Our concern is that they receive an order for us to pay what the claimant has requested and we will be unable to provide an adequate defence due to not being there and we do not know how to deal with this situation.
Expert:  Jo C. replied 1 year ago.
When you removed them in 2014, did you give them proper notice?
Normally it is one term which would explain the charging till the end of May.
Customer: replied 1 year ago.
When the children were removed in March 2014, the school stated in writing that the children could not keep their place at school without us providing security. As we could not do this, the children were unable to return after the Easter holidays. They are adding costs for both the end of May term and the September to December term of 2014. However it does state that only one term would be added unless they were able to fill the place, which they were able to do for all of the children.
Expert:  Jo C. replied 1 year ago.
they would only be able to claim for the time the children were actually there or either the contractual notice period or the length of time it took to find a replacement whichever is the shorter.
It might be that they have over claimed. It is difficult to tell without full vision of the case really.
Either way though, you do owe something so it would appear that it should really be a part admission to the claim.
In relation to you being in Australia, that is a double edged sword. On the one hand, it makes it very hard for you to defend this action. On the other it makes it very hard for them to enforce against judgment against you. It is possible for them to do it but it is not easy and certainly not cost effective.
Summary judgment hearings are usually decided on papers anyway though so it doesn’t matter that you can’t attend. It is just a judicial decision upon whether or not your account provides a defence usually heard in the absence of the parties.
in terms of an appeal, it depends. Obviously that does rack up your costs and that is a factor to consider. If the Judge gets it completely wrong though then is a point of appeal on the basis of error in fact or in law.
Can I clarify anything for you?
Jo
Customer: replied 1 year ago.
Thanks Jo, in terms of the challenging jurisdiction, I read somewhere that if we submit a defence then we are accepting jurisdiction. If I now submit a defence after challenging jurisdiction, will that then mean I have accepted jurisdiction or can I submit a defence anyway? I think that's all I need some clarity on. It's not that I am trying to get out of paying anything, it is just I am not happy with the unfairness of the situation.
Expert:  Jo C. replied 1 year ago.
Well, whether you accept jurisdiction or not makes no difference. It is a competent court and the contract was in the UK.
To be wholly honest, I cannot really see any challenge to the jurisdiction anyway.
It is just very difficult to enforce in Australia but it is possible. It depends how determined they are. I have actually found it surprisingly easy to enforce abroad especially within the Commonwealth as fundamentally we all share the same system of law. claimants give up though because it appears too expensive and complicated.