Help Needed for Court Case. Claimant ignoring Directions and Witness Statement needed by Friday

[Desperate Daniella]

Hi Pedross,

 

I phrased that badly. I can't invoice her for loss of earnings and distress, but if I counterclaim I gather I can. A projection based on the three clients I was handling in the first month would show that on a very conservative estimate I was likely to have earned between £20,000-£30,000 in the first year, so she has cost me a lot of money. Anyway, I could put it in the claim to illustrate how much I have lost.

 

I just cannot believe how much time I put into that company.

 

Elsa, I just don't know about that. Wonder if anyone else does?

 

Angel, thank you for the good luck angel dust, and as you say good luck to everyone on cag too.

 

DDxx

[Desperate Daniella]

Sorry, trying to do this with a lot of interruptions.

 

Obviously I don't want to start a claim against her at all. (I need another court case like I need a hole in the head.) I just want her to go away. The purpose of telling the solicitor I will counterclaim would be to get her to back off - as Elsa has said it's a war of nerves.

 

I'm inclined to write to the solicitor enclosing an invoice for everything I have actually done, point out that the assurances she gave me before the company was formally set up apply to her personally as she hasn't stated anywhere that they didn't, point out that only one IOU had a date on it and she had most of that back, the others don't specify a date, and if I counterclaim I will have to take into account the loss of earnings, distress, etc., so she knows I'll be hitting her with a lot of stuff.

 

My main desire here is to head her off before she pays the Court/hearing fee. Unfortunately as she's well off I don't think the £600 would particularly bother her.

 

DD

[Desperate Daniella]

Just an update.

 

With the car nightmare I haven't yet sent the letter or invoice, but neither have I heard from her solicitor in response to my last letter which specifically asked on what basis she thought I was working for her. Thank you for that, Elsa.

 

There is still no witness statement.

 

This morning by sheer coincidence I was contacted by one of the company's contacts who wondered if I might be interested in taking a job which was given to my ex-friend in January. She took the initial registration payment and since then has done precisely......nothing! I told this contact all the details (which I hadn't before when I got chucked out) and she was completely shocked. I'm hoping her clients may instruct me, and my contact is going to push for it, but obviously they are somewhat irritated by paying her and getting nothing in return so it's not definite and I can only hope.

 

DD

[Undercover-Elsa]

Morning DD (just!)

Good news about the client..hope it comes off for you. I think she'd be a bit rattled too if she knew you were in contact with someone she's ripped off

Any luck with the car hunting?

Elsa x

[Desperate Daniella]

Afternoon Elsa,

 

They think she has another client too. They are going to try to get more info. As she basically wasn't remotely interested in what we were doing she is not going to put herself out, but equally I know she won't want to admit the company has closed down, so she'll continue running it for the time being.

 

What she didn't realize was that for our money it would take a long hard search process and that is very dull and boring - rather like my car search. Thought I had found one on Saturday - looked fine - but when we called the RAC the first search revealed that it had been a write-off three years ago, so it's back to the drawing board.

 

DD x

[The GodMother]

Hi DD.

 

Good news about the client for both you personally and the case.

 

I am thinking can u get that client to put in writing all ccontact they have had with the company and then all that the company had done for them including the taking of money and providing nothing as that will prove the company had gained money.

[Desperate Daniella]

Hi Godmother,

 

Sorry, I thought I'd replied to your message. Must have hit the wrong button. My mum's been around and the computer is in the middle of the house so it's impossible to do anything.

 

I have hesitated to ask other people to be involved here, although if it goes much further I'll have to. I just don't want people really to know the circumstances if I am going to be working with them in the future.

 

I didn't get a chance to write again to her solicitor but called the court this afternoon as the deadline for pre-trial checklists and Court fees payment by her is tomorrow. Nothing received by the court yet and they say that if it isn't received by tomorrow it will be struck out and removed from the list, so I'm praying really hard now.

 

I'm going to the Court at about 4.00 p.m. tomorrow with two letters and will hand in the relevant one depending on whether they have received her payment.

 

First one just with the pre-trial checklist.

 

Second one enclosing that but also saying she hasn't complied with any Directions of the Order to date. SD five weeks late, no documents provided for inspection and no Witness Statement.

 

Can I ask for your opinions about whether I should include in the letter to the court - if it's the second one obviously - something along the lines of Elsa's suggestion that she is a vexatious litigant, something about the immense stress this is causing me ....... Also that I would like to have counterclaimed but cannot afford to do so. I have already advised the court of this in my defence.

 

She has brought the case and yet she is the one not complying with the Directions. I am hoping the Court will realize that this is because she is simply not telling the truth.

 

Any thoughts?

 

DD

[the_shadow]

Hi Godmother,

 

Sorry, I thought I'd replied to your message. Must have hit the wrong button. My mum's been around and the computer is in the middle of the house so it's impossible to do anything.

 

I have hesitated to ask other people to be involved here, although if it goes much further I'll have to. I just don't want people really to know the circumstances if I am going to be working with them in the future.

 

I didn't get a chance to write again to her solicitor but called the court this afternoon as the deadline for pre-trial checklists and Court fees payment by her is tomorrow. Nothing received by the court yet and they say that if it isn't received by tomorrow it will be struck out and removed from the list, so I'm praying really hard now.

 

I'm going to the Court at about 4.00 p.m. tomorrow with two letters and will hand in the relevant one depending on whether they have received her payment.

 

First one just with the pre-trial checklist.

 

Second one enclosing that but also saying she hasn't complied with any Directions of the Order to date. SD five weeks late, no documents provided for inspection and no Witness Statement.

 

Can I ask for your opinions about whether I should include in the letter to the court - if it's the second one obviously - something along the lines of Elsa's suggestion that she is a vexatious litigant, something about the immense stress this is causing me ....... Also that I would like to have counterclaimed but cannot afford to do so. I have already advised the court of this in my defence.

 

She has brought the case and yet she is the one not complying with the Directions. I am hoping the Court will realize that this is because she is simply not telling the truth.

 

Any thoughts?

 

DD

 

If she doesnt comply with the directions and the case is de-listed/discontinued I would also suggest a wasted costs order should be applied for.

 

S.

[Desperate Daniella]

Hi again,

 

I've just printed off the Pre-trial questionnaire and would be grateful for some advice.

 

A. Confirmation of compliance with directions.

 

1. I confirm that I have complied with these directions already given which require action by me.

 

Well, I've provided my SD list and WS, so even though I haven't complied with inspecting her documents because she won't send them, I think I should answer 'yes' and put in the box the fact that I couldn't inspect because I hadn't got the documents.

 

2. I believe that additional directions are necessary before the trial takes place.

 

Don't know what to put here because the Court has already told me that if I ask for Directions I'm going to have to pay £75. I'd like to ask the court to tell her she has to provide the docs, so at the moment I've just put a bit about this in the letter I'm drafting, so I might tick yes, and put underneath, 'please see my attached letter'.

 

If I could pay for one and wanted to ask for Directions I would have to prepare a draft order.

 

3. Have I agreed the additional directions with the other party.

 

That one's obviously 'No'.

 

 

B, C, and D are straightforward.

 

E The trial.

 

The court has put down a time of one day.

 

3. Is the timetable for trial you have attached agreed with the other party? I haven't attached a timetable. Wouldn't know how to do one. Do you think I need one as the court has already decided the time?

 

 

F Document and fee checklist

 

Application and fee for additional directions - covered in my letter.

 

Draft order - can't do because of above.

 

Listing fee - hers.

 

Timetable - see above.

 

An estimate of costs. Am I allowed to put anything in here?

 

Grateful for any advice.

 

Thank you.

 

DD

[Desperate Daniella]

Thank you, Shadow.

 

Sorry for being clueless, but would I ask for that in the letter or is there a form? Can I apply for that tomorrow (last thing obviously), or should I leave it until next week because she'll have until close of business tomorrow to do it?

 

DD

[Desperate Daniella]

Actually, I'm not certain I'd do a wasted costs order. I'd just be grateful if she went away.

 

However, would that be a good tactic if it does get struck out/discontinued to make her think twice if she thought about trying to get it reinstated?

 

DD

[Undercover-Elsa]

Hi DD,

Just stopping in briefly..my main computer is causing me big probs - have to keep reinstalling windows to do diagnostics / keep it going..just about to wipe it again and jiggle the RAM sticks around.

So sorry I can't advise on the Court stuff, you need Shadow, CitiB etc

 

I'd personally do a wasted costs as Shadow says, and it should show you have the confidence and moral highground to chase her off. It's all about one upmanship and I really think she expected you to buckle and make an out of court offer by now..but she doesn't know about your CAG secret weapon!

I'll be thinking about you tomorrow..I'll be on and off here in between troubleshooting so hope to keep up with how you're doing

Chin up and fingers crossed she flakes off tomorrow

Elsa xx

[the_shadow]

Thank you, Shadow.

 

Sorry for being clueless, but would I ask for that in the letter or is there a form? Can I apply for that tomorrow (last thing obviously), or should I leave it until next week because she'll have until close of business tomorrow to do it?

 

DD

 

Dont be sorry, knowledge is gained by asking... god knows I've asked enough questions over the years, I'm just happy to be able to answer some now

 

Wasted costs are a separate application that you file with the court after the case has been withdrawn or struck out by the court. No need to worry about anything bar tomorrows deadline and ensuring the court does strike the claim out.

 

S.

[the_shadow]

Actually, I'm not certain I'd do a wasted costs order. I'd just be grateful if she went away.

 

However, would that be a good tactic if it does get struck out/discontinued to make her think twice if she thought about trying to get it reinstated?

 

DD

 

Possibly better as a bargaining chip then, get them to agree no further action in this matter will take place otherwise you will go for a wasted costs order.

 

I believe there is a time limit on how long after the case the order can be applied for so would need to look that up.

 

S.

[the_shadow]

Fingers crossed for tomorrow DD.

 

S.

[Desperate Daniella]

Thank you, Elsa and Shadow.

 

Elsa, hope the computer gets fixed soon. Sounds like you are an expert, unlike me.

 

Shadow,

 

Do you think my replies to the Pre-trial checklist are okay? As far as the timetable is concerned, in the AQ she had listed two hours (so I think she did expect it to be a done deal) and I left it to the court's discretion and they put down a day.

 

I think you are right, Elsa, and I do think she expected me to buckle. Regardless of what her solicitor now says, I do think he was sounding me out when he asked about what I would say to the mediator suggesting £4,000, £2,000.....

 

Clearly if she'd instructed him before the AQ she wouldn't have said what she did, and I am wondering if this is why she put the specific thing about non-disclosure of her conversations/discussions with him. If I were her solicitor and she'd come to me saying that she'd already said this and that in her statements and the other side (me) had proof of everything I would write the letters but at the end of the day she cannot really go back on what she has already said.

 

As Elsa says, thank God for the CAG secret weapon, and I do.

 

DDxx

[the_shadow]

Hi DD,

 

One day sounds excessive and is probably just their default when they are unsure, I would have thought 2 hours would be enough time as you are not presenting loads of evidence and neither side is using witnesses.

 

I've edited this three times and I'm still not sure whats the best way or rather most likely to get the judge to agree to force them. I have a feeling that he will only issue an unless order if you ask for the application and that might be the best way for a strike out if you know she cant produce. I really dont know how to get around this other than as you say seek the mercy of the court in a letter attached explaining that due to limited funds you are unable to request an application but without the other sides honest and frank disclosure this case will not be on level grounds and will go against the clear overriding objectives of the CPR.[Can we come back to this one after tomorrow]

Crap: I've edited it a fourth time On reflection Your suggestion seems good to me, your a LiP and some leeway has to be given by the courts, if a defendant cant get the evidence from the accuser then the overriding objectives are not being met. Just put in the date to comply section about the claimant not providing documents directed to disclose.

 

As to seeking the courts further disclosure via an application , £75 is a lot, have you looked to see if you qualify for remission?

 

Details here --> http://www.hmcourts-service.gov.uk/courtfinder/forms/ex160a_web_0709.pdf

Costs. Nope, leave until just prior to hearing, 24hr before......and fax a copy to the court and the opposing solicitor prior to the hearing.

 

Fingers crossed all this will not be needed. As ever all the above just my opinion and you may get better advice.

 

S.

Edited October 15, 2009 by the_shadow

[Desperate Daniella]

Hi Shadow,

 

Thank you for that.

 

If I were the claimant in any case I'd follow the Directions to the letter. Admittedly she's got a solicitor, but surely even solicitors don't ignore Directions repeatedly if they have a good case? I can't see why they'd be playing silly games. I'd have my stuff in early and the payment too, to show I was serious.

 

As you say, let's come back to this tomorrow, as by then I'll know whether she has paid the fees or not. She is absolutely loaded and the fees won't be that much for her, but as they haven't responded to my question (Elsa's) about on what basis did she think I was doing all the work, that must put her in a bit of a quandary. I can prove what I did, so they know I have the evidence for a counterclaim.

 

Oh well, let's see what happens tomorrow.

 

DDx

[the_shadow]

Hi Shadow,

 

Thank you for that.

 

If I were the claimant in any case I'd follow the Directions to the letter. Admittedly she's got a solicitor, but surely even solicitors don't ignore Directions repeatedly if they have a good case? I can't see why they'd be playing silly games. I'd have my stuff in early and the payment too, to show I was serious.

 

As you say, let's come back to this tomorrow, as by then I'll know whether she has paid the fees or not. She is absolutely loaded and the fees won't be that much for her, but as they haven't responded to my question (Elsa's) about on what basis did she think I was doing all the work, that must put her in a bit of a quandary. I can prove what I did, so they know I have the evidence for a counterclaim.

 

Oh well, let's see what happens tomorrow.

 

DDx

 

Stay positive and you could be having a good knees up Fri/Sat night

 

S.

[The GodMother]

It might be best you leave it till after 4pm in regards to the checking on the case as i know my local court does not deal with mail that has cheques postal order or money with them till close of business at 4pm then between 4pm and 5 they are doing the cheques and that sort of thing.

 

Normally what they do is stamp it and then put it in the tray marked to be dealt with tonight.

[Undercover-Elsa]

Baited breath time. Hope you're OK DD xx

[Desperate Daniella]

Hi Shadow and Godmother,

 

Well, I don't know about the knees-up because I'm sure they'll try to get it reinstated, but the good news is that they didn't pay, and the guy at the counter said money/payments go straight on the system and there was nothing showing. I sat there until 4.00 p.m. when he shut up for the night, and he said it should get struck off and taken off the list on Monday. I do wish these things didn't have deadlines on Friday afternoons!

 

Got home to find the post had come and I got a letter from her solicitor saying my letter of 1st had only been received on 13th which was the date of his letter. This is the second time he has said that my letter has taken a week or more to reach him!!!!! No reference to my letter of 5th - no doubt he'll say that didn't get there until some time next week as that is the one asking for a couple of things from her SD list.

 

Anyway, he says they have sent a copy of my letter to her (this is the one which included the bit about on what basis she thought I had been working for her?) and "in the event we are instructed to reply, we will write again. In the meantime our client has a draft witness statement for approval and we anticipate we should be able to serve this shortly."

 

It was due on 25th September.

 

Am I missing something here? They are doing everything weeks after the Directions stipulate. Surely her solicitor must realize that as she hasn't paid the fees it can/will be taken off the list?

 

If a Court gives an Order and stipulates things have to be done on a certain date, surely they expect compliance? I can understand a bit of leeway for a day or so, but weeks behind?

 

The solicitor's letter makes it very clear that they'll get round to things in their own time. I suppose I should just wait for the Court but it might have been useful to have taken this to the Court to demonstrate exactly how they are carrying on. Maybe when (hopefully) it's been struck out I should send a copy to the court with the wasted costs order?

 

Elsa, (hope the computer is back on!), I also included that paragraph of yours about the claim being vexatious, inaccurate and misleading to the Court, deliberately withholding material evidence, and employing delaying tactics by not supplying the documents she is well aware will demonstrate the inaccuracies in her PoC and AQ statement, so thank you for that.

 

As well as the payment she's missed the pre-trial checklist deadline today too. Please let the judge see her for what she is.

 

DD

[angel_1]

hiya dd

 

finally had a moment to catch up the latest, here is hoping its good news for you

 

keep positive

 

laters angel x

[Desperate Daniella]

Hi Elsa and Angel,

 

You came on while I was posting.

 

Thank you for your good wishes.

 

As you'll see I'm finding her/her solicitor's behaviour rather confusing.

 

DDxxx

[pedross]

 

Anyway, he says they have sent a copy of my letter to her (this is the one which included the bit about on what basis she thought I had been working for her?) and "in the event we are instructed to reply, we will write again. In the meantime our client has a draft witness statement for approval and we anticipate we should be able to serve this shortly."

 

It was due on 25th September.

 

Am I missing something here? They are doing everything weeks after the Directions stipulate. Surely her solicitor must realize that as she hasn't paid the fees it can/will be taken off the list? DD

 

The solicitor is obliged to forward your letter to her and to reply to you. However, they don't seem too confident that it is going to continue. They have obviously sent her the draft witness statement and she has not sent it back and they are pointing out that they have done their bit and are ready when she is.

 

They may as well continue to work until they are told to stop and they are getting paid anyway. If they don't do this it could be them getting sued next.

 

Think lucky.

 

Pedross