The client instructed Samuel Okoronkwo Jr. in relation to a dispute arising from a commercial licence agreement entered into with a property company concerning occupation of a number of commercial units. The claimant sought substantial sums from the client alleging unpaid licence fees, additional charges and costs associated with the condition of the premises.
The client’s position was that he had entered into an agreement to occupy multiple units within the property and had made significant payments towards the licence fees. The client disputed the claimant’s calculation of sums allegedly outstanding and maintained that payments had been made either directly to the claimant or to associated entities at the claimant’s request. The client also disputed certain allegations concerning the use and condition of the premises, including allegations that parts of the property had been used for residential purposes and claims relating to dilapidation.
The client explained that there had been difficulties with previous legal representation, including failures to properly advise him regarding court procedures, filing requirements and a counterclaim. The client’s defence and counterclaim had subsequently been struck out following failure to comply with an order requiring payment of the relevant court fee. The client had also been debarred from defending the claim and faced proceedings concerning the enforcement of the judgment, including a charging order against his property and potential application for sale.
Counsel was instructed shortly before a listed hearing concerning the claimant’s monetary claim. The purpose of the hearing was to determine the amount allegedly owed by the client following the procedural orders made against him.
The principal issue was whether the claimant had sufficiently established the amount claimed, including alleged arrears of licence fees, additional charges and other losses. Counsel considered whether there were inconsistencies within the claimant’s evidence and whether the schedule of losses accurately reflected the sums potentially recoverable.
Counsel also considered the effect of the previous orders made by the court, including the striking out of the client’s defence and counterclaim and the resulting restrictions on the client’s ability to advance a positive case. Counsel advised that the client could not seek to defend the claim in circumstances where he had been debarred, but could raise issues relating to manifest errors or inconsistencies within the claimant’s evidence.
A further issue concerned the payments made by the client. The client maintained that substantial payments had been made towards the licence fees, including payments made to third parties connected with the claimant. Counsel considered the evidential difficulties arising from payments which did not clearly identify the purpose for which they had been made and advised that documentary evidence would be required to demonstrate that the payments related to the premises.
Counsel also considered the potential consequences arising from the claimant’s dilapidation allegations and the possibility of further claims being pursued against the client in relation to the condition of the premises.
Counsel advised that the client’s position was procedurally difficult due to the previous orders made by the court and the fact that the defence and counterclaim had been struck out. Counsel explained that an application for relief from sanctions would face significant difficulties due to the length of time that had passed and the seriousness of the procedural failures.
Counsel advised that the immediate focus should be on challenging the claimant’s calculation of the amount claimed by identifying inconsistencies, errors and unsupported items within the schedule of losses. Counsel advised that the client should prepare a clear schedule setting out all payments made, the dates of payments, the recipient of each payment and the basis upon which those payments were made.
Counsel identified potential evidential issues concerning payments made to associated companies rather than directly to the claimant. Counsel advised that it would be necessary to provide evidence demonstrating that these payments were made at the claimant’s instruction and were intended to satisfy obligations arising under the commercial licence agreement.
In relation to the hearing, Counsel attended on behalf of the client and made submissions regarding inconsistencies within the claimant’s evidence, including issues relating to alleged payments received, charges included within the schedule of losses and documents which appeared to relate to other matters. Counsel sought to assist the court by highlighting potential errors within the claimant’s evidence whilst recognising the limitations imposed by the client’s procedural position.
The court determined that the client, having been debarred from defending the claim, could not advance a positive defence but could identify inconsistencies or manifest errors within the claimant’s evidence. The court declined to permit cross-examination and directed that the matter would be determined based on the written evidence. The hearing was adjourned to allow further consideration of the issues, with costs of the hearing awarded against the client to be assessed at the subsequent hearing.
Counsel further advised the client regarding the wider risks arising from the dispute, including enforcement action against his property and potential future claims relating to dilapidation. Counsel advised that urgent consideration should be given to obtaining all relevant documentation, reviewing the client’s position and considering appropriate steps to protect his assets and resolve the outstanding litigation.
Call us – Mon-Fri 8:30am – 6:30pm
+44 (0) 20 3034 0077
By submitting this form, I accept this website’s Privacy Policy