Help with cca?/GE money.

[surfaceagentx20]

Guz,

 

Let's see if I've got this straight. You have filed an application (N244 plus fee right?) to strike your opponent out on the grounds that it had failed to give disclosure in compliance with an order of the court. The hearing of your application is to coincide with a CMC next Tuesday when the court will give case management directions.

 

I also take it that the opponent has still not complied with the order? What excuse does the opponent offer?

 

My view is that as part of the case management directions, unless it has already done so, the court will make an 'unless order'. That is, an order which says, in terms:

 

'Unless the opponent complies with the order of (date) by giving disclosure of (desacription of document) to GG by 4:00pm on (date) the Particulars of Claim shall stand stand struck out and the claim dismissed and (GG) shall be at liberty without further order of the court, to apply for judgment upon his defence and for his costs of the case to be paid by (the opponent) to be assessed on the standard basis if not agreed.'

 

For reasons which will be obvious therefore, I doubt the court has already made an unless order because if the opponent was already in breach of an unless order there wouldn't be any need for you to apply the court to strike out.

 

A failure to comply with the unless order is where the PF85A comes in.

 

I'd go to court armed with a statement of costs which I had served on the opponent not less than 24 hours before the hearing. Assuming the court makes an order against the opponent upon your application, ask the judge to award you the costs of the application and present your costs statement to enable him to summarily assess those costs.

 

If the court strikes out the claim at the hearing, ask the court to award you the costs of the case to be paid by the opponent to be assessed on the standard basis if not agreed. Those costs will, as you know, be subject to litigant in person limitations.

 

A skeleton argument ought not to be necessary on an application to strike out or for a sanction owing to a failure to give disclosure pursuant to a court order. It's factual and usually uncomplicated. There has either been compliance or there hasn't. Your application notice ought to have included a built-in or separate supporting witness statement exhibiting any documents you intended to rely on. The only occasion I would expect you to want to rely on a second or subsidiary witness statement would be where some witness statement had been filed in opposition which you wished to answer.

 

At the CMC the court will probavbly bolt on some directions which will flow on from the opponent's compliance with the order dealing with disclosure. Typically the directions will involve standard disclosure of documents, whether expert evidence is to be admitted and if so the form of that evidence, the exchange of lay witness statements of fact, and arrangements for trial.

 

x20

[surfaceagentx20]

If you have not filed a N244 application notice the court can not be guaranteed to entertain an application to strike out or give summary judgment or pass some onerous order on your opponent. That would be so regardless of whatever day of the week it is. The court will treat the hearing as a CMC and address standard case management directions. A failure to comply with a previous order of the court can be dealt with by the DJ but to make sure, file your N244. Don't think the court will make contentious decisions on a straghtforward CMC unles there's a proper application with evidence.

 

Further, don't expect to be awarded the costs of an application you haven't made.

 

x20

[surfaceagentx20]

The PF85A is a simple document used to certify an opponent's non-compliance with an unless order and gain the consequential advantages the unless order afforded. It has nothing to do with costs assessment proceedings.

 

To begin detailed assessment proceedings you will need to complete a N252 and attach a bill of costs and the order giving rise to your costs entitlement and send these to the paying party.

 

x20