Customer issued court proceedings against us (small family run garage)

[andydd]

I'd say its not obvious that the man has no case as no-one here has looked at the car and we cant tell what work was done or needed doing but a few lines in your first post.

 

But bear in mind that it will be upto the claimant to prove that your father was negligant, this to me would be very difficult to prove, and would no doubt need some sort of experts report, not just the word of the claimant vs your father.

 

Clearly your father was foolish to ignore the initial court claim, but lets hope it can be set aside, and then a proper defence put in. The fact that 6 months has passed will not help the claimant at all as anything could of happened in that period.

 

What does the initial claim say ?. If it really is devoid of any legal argument or facts it maybe possible to have it struck out early on (possibly be using a summary judgement application) although this does carry some costs risks.

[andydd]

I'm finding this a bit hard to follow, has the case been allocated to your (or perhaps other sides) local court or is it still in Nottingham bulk centre ?

 

If locally you should visity and ask, they are normally quite helpfull, ask if as other side havnt returned POC as required you can get claim struck out as he hasnt complied with direction as per CPR 3.4, applying for summary judgement is also another related issue but Im not sure if its suitable at this stage.

 

I cant see how it could hurt to ask for strike out under CPR 3.4 though.

 

If case isnt allocated yet you can still phone nottingham and ask the question.

[andydd]

From reading this, No, I dont believe there is anything you can do.

 

You should of asked the court to strike out the claim when the POC's didnt arrive, or let it go to court and win as the other side would have no evidence.

 

What you did was do nothing and the other side got defualt judgement, which was correct in my opinion.

 

You appear to be saying that you made your mistake (not replying) because the other side made a mistake (no POC) but thats not the correct way of looking at it, you shouldnt of ignored their mistake and done nothing but gone for a strike out.

 

Thats my view of it, let me know if Ive got something wrong.

 

If you havnt got the POC then surely the other side will still have no leg to stand on come the court date.

 

Im confused about the set aside application, you say the claimant has applied ?, why has he ?. I thought he already had default t judgement against you and its you that is asking for set aside ?

 

I really do suggest popping along in person, court staff are often very helpful, they cant give legal advice but can advice on general admin and cpr.

[andydd]

I think we need them in PDF format as jpg comes up too small.

 

Its ok, spent some time trying to fix them..

 

All 4 posts above are readable.

[andydd]

What is the claimant asking to be set aside, the re-instatement of the case ? (After defualt judgement was given and then set aside).

 

He hasnt attached any reason why the set aside should not be granted.

 

And I assume that the original POC's have still not been served ?

 

Andy

[andydd]

Oh they come up large for me. Are they all showing as small?

 

Emz..

 

Its ok I removed the small unreadable ones, no need to do anything.

[andydd]

Dont apologise, its not your lack of knowldedge, this has got many of us puzzled. The CPR and PD's are supposed to help but they seem to have got everyone here tied in knots in this scenario.

 

W/S = Witness statement, you will need to file one of thesew, it will be your fathers list of events and evidence and you could file them from others if anyone else was involved.

 

So what you want to know is:-

 

1. Should the claimant have got Judgement in Default if you didnt file acknowledgement, I'm not sure, possibly yes if the claimant put in or the court decided on this without taking into account the fact the cliamant hadnt put in POC. (As pointed out the CPR rules do vary depending on whether claim is still in MCOL or has been allocated)

 

2. Now you have set aside, can claimant ask that that be set aside and original defulat judgement put back, this would appear unlikely due to his breach of not putting in POC plus he doesnt appear to have any reason why it should be set aside, his court application is just a few scribbles of nonsense.

[andydd]

According to this .. http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=49504&d=1393592502 you have (or at least the has) received a copy of the POC (The original one).

[andydd]

So Steampowered has already said..

 

6.4 Where the proceedings are not transferred under paragraph 12.1 or 12.2 and remain at Northampton county court, the claimant is not required to file the particulars of claim at that court unless ordered to do so.

 

My interpretation is that this means that if the case is still pre-allocation the claimant doesnt have to serve the POC unless ordered to do so.

 

So your defence of saying you didnt send acknowldgement coz you didnt see POC is invalid. However never mind, its been set aside now and as it was court that set it aside, then bothe sides can question this, the claimant has chosen to do so..BUT it appears he doesnt appear to have any grounds to do so...the Judge has clearly reminded him of CPR 7.4 becuuse now it has been transfered.

[andydd]

Andy

 

Claim is out of CCBCC.. refer to PD 7C and CPR 7.4(1)(b) for service

 

Filing of POC at transfer is at CPR7.4(3)

 

The court refers to non compliance of service, there is no exception to the rules of service.

 

But wasnt the original Defualt Judgement given on 18th Jan whilst still at Nott court and it was the allocated to local court on the same day and as posted earlier by Steampowered, PD 7E says "6.4 Where the proceedings are not transferred under paragraph 12.1 or 12.2 and remain at Northampton county court, the claimant is not required to file the particulars of claim at that court unless ordered to do so." There are many CPR rules that contradict and we assume thus overule other CPR's.

[andydd]

Ok., Good points, as it was the court that made the first strike out (wrongly), then should it just be re-instated or does it still have to go through the set aside process ?. In any event that has happened now but alas there is still the March 11 hearing to set aside the set aside then shouldnt of been given in the first place !

 

So taking into account the above, the fact a POC still hasnt arrived ? (although one of the court letters tends to imply that theyve seen it), and the fact the claimants set aside appears gibberish it should all go well for the defendant but it looks like theyll still have to attend court but hopefully can get it struck out completely or at least back to normal and it goes to a full hearing.

[andydd]

Doesn't matter, no particulars served within 14 days service of the claim form [and absent any acknowledgment of service] would present this as an irregular judgment which must be set aside.

 

The Claimant had a second bite of the cherry on set aside but still failed to serve, he's been reminded of his duty again in the subsequent notice and has again failed to comply......... not sure how much longer the court will put up with it, if at all....... I'd be inclined to go in all guns blazing at the hearing and ask the dj to dispose of the case

 

The following link details some relevant points

 

http://www.barristershub.co.uk/archives/practice-areas/civil/2012/highly-irregular-judgments

 

Excellent link, lets hope the OP reads it too.

 

The relevant part is:-

 

"The relevant practice form is form N255. It is in effect self certified by the claimant; all he need so is complete boxes A C and D, and the claimant can state the amount of judgment he is requesting and that he would like it paid immediately.

 

The court has no way of checking whether POC were served." (Which is what I thought, the court may give default judgement as it has no way of checking whether the defendant received a POC !)

[andydd]

There appears to have been some previous 'communication' although I doubt this would be viewed as satisfying pre action protocols (trying to put your side across and reach a settlement). The car owners admission that he has tinkered with the engine would be useful evidence.

[andydd]

Yes his application didn't give any reasons and talks about attached reasons but the court failed to send any attachment so did he even attach any reasons? Or by attached did he mean what he'd wrote on the second page of the application? I certainly didn't see any actual reasons for the application to be granted.

 

I've wrote out a timeline of events but have probably gone into far too much detail to all be included in witness statement so when I type it up in the morning I will try and simplify it.

 

I don't have access to a computer at home at the moment so have to rely on my iPhone and a notepad and pen. I'll upload here at some point tomorrow for you all to look over.

 

Thanks

 

Everything should be sent to both court and you, Ive had occasions where the other side claims not to have received stuff, so I normally email and hand deliver (most of my disputes are against my freeholder who uses local solicitors).

 

Of course you may not have his email, although in this instance it appears to be other side who is failing to serve documents.

[andydd]

Looks good to me (co-incedentaly Im just working on mine too, so Ive got 2 Witness Statements opened on my PC).

 

Not much to add, it always helps to point to specific law, as you have dxone SOGA, but there maybe other relevant statutes, its also helpful to point to the relevant CPR's, especially pointing out where the other side hasnt filed docs in time, etc..If you look back over the court correspondence you will see that they make reference to various CPR's and so have others in this thread.

 

Where you say 'Court Rules', replace with CPR and if you can specifically say which one..(i.e CPR 7.7 etc)

 

Yes, you should ask judge to strike out his claim, remind the court it has power to strike out under CPR 3.4 (choose the relevant part). > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03#3.4 * (There is also summary judgement but its prob a bit late for this and carries costs risk, but its similar to 3.4)

 

Its also good to point to where (if any) provisions of Pre-Action Protocol the other side hasnt complied with (generally you should make some attempt to mediate and at least issue a proper NBA (Notice Before Action), the 'general' protocol is here > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct

 

I've just had success in my case, I was sued for £2300, I put in summary judgement application and other sides solicitor has written offering to withdraw their case and pay my costs (about 50% of them)

[andydd]

No..thats a fair point. I actually had this in court, claimant againts me didnt pay fee in time and argued for a set aside, but he only evidence was that 'he was busy with other cases', the judge wasnt too happy and said that he, as a solicitor he should do the basic things like pay a fee again, so the claimant claim was struck out and he waved goodbye to just over two grand...and no..thats a different two grand than the one mentioned above.., Ive now used a knowldege of cpr, summary judgement, etc to save myself about 5k.

 

In this case, the court has appeared to give leeway to thge claimant and reminded him of cprs's etc..but patience maybe running thin.

[andydd]

Well.. Id put the cpr 3.4 bit at the start.

 

Say I request that the court strike out the claimant case as per cpr 3.4 as he didnt comply initially to serve POC as required by cpr 7.4 and as for his claim to get your set aside..set aside he again hasnt provided any evidence as per cpr 3.9*

 

* Anyone fancy verifying this is correct yes ?

[andydd]

Id stick it at the begining....you are trying to get the whole case struck out, if you do that...(coz other side hasnt supplied POC and therefore no case), there is no need to discuss any further.

 

Anyway..we are getting a bit forward, the next hearing March 11th is I believe to oppose the claimants attempt to re-instate the defualt judge,ment, this should be easy, he has given no reason WHY it should be re-instated and in any event he hasnt sent the POC in first case and has breached several cprs along the way.

[andydd]

I think Im right in saying that the 11th march application is just to deal with the claimants application to re-instate the defualt judgement its NOT the actual full hearing, (unless it has been agreed that it will all take place on that day ?).

[andydd]

Looks good. You prob only need paragraphs 1-5 for the next hearing as the rest is your actual defence which will be needed for the full hearing BUT as you are asking the Judge to strike out the whole thing its good that the rest is there as it strengthens your case and shows you have got a good defence should it go to full trial.

 

If court is near enough you can just hand it in to the staff otherwise it can be posted, in my local court the counter is only open about 12-2 or something so check the times, but outside of those hours there is normally a postbox, but often internally only inside the building.

 

Send a copy to other side too, I prefer to prove Ive sent it by sending it by email/fax too but if he hasnt got when then think about using recorded delivery.

 

Andy

[andydd]

* On a related note, just been reading the 'Plebgate' Andrew Mitchel v News Of The World case > http://www.bailii.org/ew/cases/EWCA/Civ/2013/1537.html which was mentioned earlier in reference to cpr 3.9 and sanctions, etc. In his case failure to serve costs budgets in time looks like its cost Mr Mitchell half a million, what a pleb

 

No need for OP to worry here, its all small claims and therefore 'no costs'.

[andydd]

Andy what do you mean in the header? I've got claimant and defendant names on page one of witness statement and I've also now numbered the pages 1-4. Only problem is I've left work now and didn't manage to print a cover note and manweb are switching off the power 2moz ALL day to do cable maintenance so won't have access to my computer and printer. Could I just do an old fashioned hand written cover note??

 

On the small claims track, Judges are normally pretty forgiving, and they no doubt have to deal with all sorts of scribbled badly prepared rubbish.

 

CPR 32 and more impoirtantly PD 32 deal with layouts of evidence, S17 deals with Witness Statements here > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part32/pd_part32#17.1

[andydd]

Just read the recommended layout Andy and don't think this one is exact, but I did follow using the example that someone posted from the justice website so should be ok?

 

 

I'm just typing a covering note now, hopefully electric wont go off in the process.

 

 

So I'm definitely good to go with this W/S you all think?

 

Yep..its all good.... As others have said I can't see any way the other sides application to re-instate Judgement will be successful, it appears to be wrong on many levels.

 

Dont worry about the exact layout. The CPR/PD in this case should be taken as a rough guide.

 

I'd guess the majority of LiP prepared ones dont come close, the stuff sent to me by my freeholders solicitor is always different to my paperwork, Ive never actually read the CPR/PD relating to layouts untill just now and I'm making some small changes to my WS in my case (Ive won the first part, the other sides counterclaim was withdrawn and now preparing for my main damages case aginst my freeholder).

[andydd]

Its worth mentioning costs, now this is already on small track so no costs but you/your father could claim upto £90 for time off work and travel. See > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.14 - 27.14 (d) ands (e) and > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27/pd_part27#7.1 - 7.3 (1).

 

These would just be the costs for attending the set aside hearing not for the main one.

 

If you want to be more professional and maybe scare the other side you could use this form > http://www.justice.gov.uk/courts/procedure-rules/civil/contents/form_section_images/pre-action_protocol/housing_disrepair_pdf_eps/prot_house_anx_f.pdf to list your costs.

 

Youd basically put Rate = £18.25 an hour (The rate a litigant in person can claim) and list the work done, 2 hours on letters, 2 hours on research, etc

 

In theory this wont apply coz its on small track but it does in certain circumstances (as Ive just found out to my benefit..got £175 ) but it may be worth using, it needs to be in court and other side 24 hours before hearing.

[andydd]

Well..The rules are there to be followed, BUT they can be overidden by a court 'relief of sanctions' BUT the new intereptation is that they shouldnt be except for exceptional circumstances, you could remind the judge of this and point them to the Mitchell v News Group case I mentioned above, a small error there looks like its cost him half a million !

 

Its worth remembering that continual applying to courts for set asides, etc isnt without cost, there is a fee to pay and if its not on small track or is pre-allocation then normal court costs rules apply and the losing side would have to pay the other sides costs of that hearing which at the very least would prob be about 2hours x solicitors costs of £200 an hour = £400 +