36. RE: REFUSALS + UNDERTAKINGS + the Rules of Civil Procedure

An Ontario, Canada, Judge recently stated the following during a Case Conference between 2 opposing parties:

l. Examinations for discovery
"Discoveries are nearing completion" etc.

Judge Brown then states:
lV. Refusals

[6] "In these times of very constrained judicial resources, I am loath to schedule refusals motions, in large part because experience shows that in most cases they have little tangible impact on the evidence adduced at trial. Dare I say that frequently refusals are no more than tactical posturing by a party, and when the party is faced with the issue of what a trial judge likely will want to hear by way of material evidence, advisements or refusals often crumble in the weeks just before trial."

V. Setting a trial date

[8] I think the parties have reached the stage where they are ready to discuss potential trial dates...

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On February 15, 2011, former Defense Counsel sent this party the following email:

"I am writing you again with regards to the above noted matter in an effort to resolve it without court intervention.

After a truthful and frank talk with my client, I reported the outcome of our discussions, conveyed your client’s rejection of the last settlement offer, and highlighted the new counter offer being the sum of $150,000.00, to be paid by March 04, 2011.

As mentioned in my last settlement offer correspondence, dated February 15, 2011, my client’s payroll is running on a period-to-period basis and could absolutely not support the payment of your client’s last counter offer.

Therefore, in order to settle this matter expeditiously, my client is willing to disburse the sum of $30,000.00 as a firm and final offer. In doing so, my client is putting himself at high risk of insolvency, and is fully aware that this amount might bring the business to a state where there'll be nothing left for anyone.

On a side note, this particular offer matches the sum paid by your client to the new web developers in order to reconstruct an acceptable, custom built, user friendly, SEO enhanced portal-website, which, as claimed, should have been performed by our client.

Again, I sincerely believe this offer is very fair in the circumstances. In short, a considerable portion of our client original code is still in use, especially the substantial front-end code and design work.

Your immediate reply to this correspondence would be appreciated.

I trust that the foregoing is satisfactory and I remain,"

(name withheld)

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In addition to the above, then Defense Counsel sent a 7 page PDF which included the following:

l. Principal Complaints

"The Plaintiff appears to have two principal complaints, being the Defendant's failure (1) to provide a fully functional website pursuant to the Statement of Work, signed April 14, 2008, and (2) to fulfill the 90 business day guarantee to remedy the website code pursuant to the Statement of Work." ....etc.

ll. Contractual Obligations and Website Content and Design

"The contract is the source of all the rights and obligations between the parties. It quite clearly states that the website content is to be delivered by the plaintiff. As for the website design, structure and functionality, it was to be built by the defendant based on the Plaintiff's specific instructions and feedback. "

NOTE: The above is HOGWASH! Other than stating the parties at the top of the contract, NOwhere in The Statement of Work is the (Plaintiff) Client EVEN MENTIONED!

lll. Website Contractual Obligation and Budget

The contract deliverables were conceived for a "simplified prototype" website. The Plaintiff expectations were far more then what the contract intended to deliver."

(NOTE: Sorry, the Contract does NOT state this; the Plaintiff's expectations are sealed within the contract; this includes the earlier Proposal, since the 'Contract' would resemble/mirror the Proposal)

"1- The Defendant's deliverables identified in the Statement of Work were completed on a custom built basis. Moreover, the used technologies are proven to be fully robust;"

( NOTE: The use of Cake PHP as a readily available framework is foreign to most all web-developers; the inclusion of V-Bulletin, as a Forum, became an immediate scam/spam intrusive aggravant; not to mention the fact the site was proven in-operable to its first 50 users)
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Client's SUMMATION:

1) Offering $30,000 to settle out of court surely indicates more than just 'SOME OBLIGATION'!
2) Having now spent more than $100,000 to defend a '100% Guaranteed' online seal to client commitment and satisfaction has become a sad addendum to actual reality, AS TO THE COMMITMENT TO A SIGNED CONTRACT!

3) Tomorrow is my 'Special Appointment' tele-conference with Master MacLeod.

4) According to the Rules of Civil Procedures, let justice UNFOLD!