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

[Emz0305]

So does this mean that the Claimant doesn't actually owe the allocation fee Mike? I'm confused lol Doesn't take much.

[Mike_hawk]

Found the order dated 29 January.

 

Notice of Allocation to the small claims track.

 

Deputy District judge blah blah has considered the statements of case and questionnaires files and allocated the claim to the small claims track.

 

The Full order is attached somewhere on this thread.

 

Thought it had, not sure why dq's were instructed unless the term was part of a template notice that should have been deleted

[Emz0305]

Ok will have a tinker with it now.

[Mike_hawk]

So does this mean that the Claimant doesn't actually owe the allocation fee Mike? I'm confused lol Doesn't take much.

 

I don't think you can avoid the fee, whether it's filed with dq or allocated at a prelim I'm pretty sure it would still fall due.

[Mike_hawk]

I don't think you can avoid the fee, whether it's filed with dq or allocated at a prelim I'm pretty sure it would still fall due.

 

Just checked and I can't see any changes from 2011 general fees [section #2] http://www.legislation.gov.uk/uksi/2011/586/made

[andydd]

This saga is longer than the Lord of The Rings trilogy

[Emz0305]

This saga is longer than the Lord of The Rings trilogy

 

or breaking bad!! Which I'm currently just starting Season 5 lol 5 seasons in 2 weeks ain't bad is it?

[Emz0305]

Looks good to me Emz, add a little more background at the beginning though. Just a brief timeline of events from the non service of claim to the set aside. You need make it clear to anyone reading the w/s that this is not his only failing.

 

At #5 make reference to the fact that the claimant has not applied for relief from sanction in accordance with CPR 3.9 and you feel that the claimants tardiness is presenting you with the disproportionate costs of defending a claim without merit.

 

Mike I've added that bit in, but it's no longer para 5 lol Do you think it's too long winded? Less is more maybe?

 

 

1. I, , of , , , , am the defendant in this case. The facts in this statement come from my own personal knowledge.

 

2. On 23 December 2013, a claim was served on me by the claimant. I didn't have to do anything until I'd received the claimants particulars of Claim, which weren't included with the claim. The claimant had a further 14 days to serve his particulars of claim on me, to which he failed to do so.

 

3. The Claimant then applied for default judgement which was granted and I was served with a 'Judgement for Claimant' order dated 18 January reason being No Acknowledgement of service. This was an irregular judgement as I didn't have to acknowledge service as I'd still not been served the claimants particulars of claim. I applied for a set aside and this was granted by way of an order dated 12 February 2014. It was also ordered again that the claimant file and serve his particulars of claim on defendant by 26 February 2014.

 

4. The claimant then filed an application for a set aside of the last order to set aside the irregular default judgement and I received a Notice of Hearing of Application dated 26 February 2014. The hearing took place on 11 March 2011 and up to this point the claimant had still not served particulars of claim on the defendant. The claimants application was dismissed and it was again ordered that the claimant serve his particulars of claim on the defendant endorsed with a signed statement of truth.

 

5. Claimant finally served his particulars of claim on me the following week but it was not correctly endorsed with a signed statement of truth and I also found it to be very vague and without any basis. I have pointed all of this out in my defence that I filed with the court.

 

6. I received from the court a 'Notice of Proposed Allocation to the Small Claims Track dated 31 March 2014. In this notice it was ordered that both parties by 17 April 2014, file with the Court the 'Small Claims Directions Questionnaire' and also to serve copies on both parties. I filed my Directions Questionnaire well withing the time limit and I also served a copy on the claimant.

 

7. On 2 May 2014, as I had not heard from either the Court or the claimant, and had not been served a copy of the claimants Directions Questionnaire, I decided to enquire at the court to find out what was happening with the claim. I learned that the claimant had not filed his Directions Questionnaire or paid his £40 allocation fee. The court advised that the file would be referred up to the judge for a decision.

 

8. On 14 May 2014 I received from the court 'Notice of Trial Date'. I had still not been served a copy of the claimants Directions Questionnaire, I decided again to enquire with the court. I learned that the claimant had not filed a Directions Questionnaire but the case had still been advanced to trial. I also learned that the claimant has still not paid the £40 allocation fee due to the court. In the Notice received from the Court and dated 31 March 2014, the court ordered that the allocation fee of £40 was to be paid by 17 April 2014. It also stated 'Following further notice, if the allocation fee is not paid by the due date, the claim will be automatically struck out'.

 

9. I feel that from the start of this claim, the court has granted the Claimant more than enough relief from sanctions. I myself have followed proceedure and complied with all of the courts orders and I find it unfair that such relief would continue to be granted to the claimant. The claimant has not ever applied for relief from sanction in accordance with CPR 3.9 and I feel that the claimants tardiness is presenting me with the disproportionate costs of defending a claim without merit.

 

10. I would therefore like to ask that the court does not grant the claimant any further relief from sanction and that the court uses it's own initiative to strike out this claim persuant to Practice Direction 3.4 (2)©.

 

11. I believe that the facts stated in this witness statement are true.

 

 

Signed:

 

Dated:

[Emz0305]

2. On 23 December 2013, a claim was served on me by the claimant. I didn't have to do anything until I'd received the claimants particulars of Claim, which weren't included with the claim. The claimant had a further 14 days to serve his particulars of claim on me, to which he failed to do so.

 

How many times is the word claim wrote in this sentence? lol

[Mike_hawk]

Tinkered a tiny bit..........

 

1. I, , of , , , , am the defendant in this case. The facts in this statement come from my own personal knowledge.

 

2. On 23 December 2013, a claim form was served on me by the court. The claimant failed to serve his particulars of claim contrary to CPR.

 

3. The Claimant then applied for default judgement, which was granted, and I was served with a 'Judgement for Claimant' order dated 18 January 2014. This was an irregular judgment. I applied for a set aside and this was granted by way of an order dated 12 February 2014. It was also ordered again that the claimant file and serve his particulars of claim on defendant by 26 February 2014.

 

4. The claimant then filed an application for a set aside of the last order to set aside the irregular default judgment and I received a Notice of Hearing of Application dated 26 February 2014. The hearing took place on 11 March 2014 and up to this point the claimant had still not served particulars of claim on the defendant. The claimants application was dismissed and it was again ordered that the claimant serve his particulars of claim on the defendant endorsed with a signed statement of truth.

 

5. Claimant finally served his particulars of claim on me the following week but it was not correctly endorsed with a signed statement of truth and I also found it to be very vague and without any basis. I have pointed all of this out in my defence that I filed with the court.

 

6. I received from the court a 'Notice of Proposed Allocation to the small claims track dated 31 March 2014. In this notice it was ordered that both parties by 17 April 2014, file with the Court the 'Small Claims Directions Questionnaire' and also to serve copies on both parties. I filed and served my Directions Questionnaire well within the time prescribed by the order.

 

7. On 2 May 2014, as I had not heard from either the Court or the claimant, and had not been served a copy of the claimants Directions Questionnaire, I enquired at the court to find out what was happening with the claim. I learned that the claimant had not filed his Directions Questionnaire or paid his £40 allocation fee. The court advised that the file would be referred up to a judge for directions.

 

8. On 14 May 2014 I received from the court 'Notice of Trial Date'. I had still not been served a copy of the claimants Directions Questionnaire, I again enquired with the court. I learned that the claimant had not filed a Directions Questionnaire but the case had still been advanced to trial. I also learned that the claimant has still not paid the £40 allocation fee due to the court. In the Notice received from the Court and dated 31 March 2014, the court ordered that the allocation fee of £40 was to be paid by 17 April 2014. It also stated 'Following further notice, if the allocation fee is not paid by the due date, the claim will be automatically struck out'.

 

9. I feel that from the start of this claim, the court has granted the Claimant ample relief from sanctions. I myself have followed procedures and complied with all of the courts orders and I find it unfair that such relief would continue to be granted to the claimant. The claimant has not ever applied for relief from sanction in accordance with CPR 3.9 and I feel that the claimants tardiness is presenting me with the disproportionate costs of defending a claim without merit.

 

10. I would therefore like to ask that the court does not grant the claimant any further relief from sanction and that the court uses it's own initiative to strike out this claim persuant to Practice Direction 3.4 (2)©.

 

11. I believe that the facts stated in this witness statement are true.

 

 

Signed:

 

Dated:

[Emz0305]

Thanks Mike, just a few little tweaks here and there and it sounds much better.

 

So should I go with that? Should I hit the print button get it posted out today? Will this actually go in front of the judge?

[Mike_hawk]

Send with a short covering letter asking for it [and the case file] to be placed before a district judge.

[Emz0305]

ok will do, although I don't think I'm going to get in todays post now so will post first thing monday morning recorded first class post.

 

Again, thanks guys for your continuing support and help, it's very much appreciated. Hopefully this will be brought to a close sooner rather than later and I can be out of your hair lol

[Emz0305]

Do I need to do a copy for the claimant? Even though he hasn't bothered sending me one copy of anything in the past.

[Mike_hawk]

Do I need to do a copy for the claimant? Even though he hasn't bothered sending me one copy of anything in the past.

 

Nope

[AndyOrch]

I personally would serve a copy ...brownie points for you in court...

[andydd]

Don't forget you are always free to try and settle with the claimant marked without prejudice, you could suggest the claim is dropped no costs for either side or offer him a small sum or ask for a small sum or anything really.

[Emz0305]

Looking back through the orders from the Court, between the 'Notice of Proposed Allocation to the small claims Track' dated 31 March 2014 and 'Notice of Trial Date' dated 13 May 2014 there is no actual order saying that the case is actually allocated to the Small Claims track and no directions, what to prepare for the hearing etc.

 

The order that we received in January 'Notice of Allocation to the Small Claims Track (hearing) dated 29 January 2014 giving directions etc was later set aside by way of a General Form of Judgement or Order dated 12 February 2014, which orders that the order dated 29 January 2014 be set aside.

 

So, as the original order for Allocation to small claims track and directions was set aside, this means that we have not actually received any directions from the court as to what to prepare for the hearing/trial date set for June.

 

Not sure what the heck the court is doing?

[andydd]

Keep an eye on it, they made a complete cock up of mine, first sending me directions..for someone elses case and then the other side offered to settle the counterclaim so there was no need for a hearing, but then the court wrote saying no-one attended the hearing..eerr..deerr..thats coz we had settled and told the court this...I wonder what the judge thought when no-one was in front of them ?

[Mike_hawk]

It does seem that the notices have become a little muddled........ I'd use the order dated 29th Jan for reference to requirements pre trial.

[Mike_hawk]

Was the fee paid today?

[Emz0305]

I'm so annoyed with the court.

 

Phoned them today and they told me that the court fee of £170 has been paid but the allocation fee is still outstanding but the claimant has tried to pay the fee today but for some reason couldn't process the payment???? not sure why as he didn't say.

 

He also said that the witness statement that i sent for the judge last week hasnt been given to the judge because it was filed with the other witness statements in the file and wouldn't be even looked at until the hearing even though i attached a covering letter requesting that it gets placed in front of a district judge. The clerk told me that if it's too long the judge won't bother to read it cos then we would have to pay for his time LOL. He said really, we should of just sent a brief letter objecting about the owed allocation fee.

 

I asked him if he could send up the witness statement to a judge and he said that he would but again he doesn't know if he will even read it, so I've wrote a brief letter and I'm going to fax that to the court too. Well pi**ed off!!!

 

We've not even had any direction as to what is required inbetween now and the hearing regarding disclosure. I think we will just turn up empty handed.

[andydd]

Unless you have been given a specific order that says something like.. Defendant to pay £xxx by xx/xx/xx or claim will be struck out then there is little you can do.

 

If you had an order saying specifically that claim would be struck out or judgement entered then you could turn up on the 'pay by' day and ask it be struck out or judgement entered.

 

But I believe in your case that there havnt really been any orders that are wordfed that specifically.

 

What you are trying to do is 'hint' that the court should you its own inititiave to strike out/award judgement/whatever but as Ive mentioned before in my experience they rarely do 'use their own initiative' to struck out and the claim just continues.

 

The clerk did appear to be partly right, if you really want a Judge to look at your paperwork then you have to make an actual application asking for an orfder/strike out/summary judgement/whatever..but for all of these there is a cost.

 

In reality you should of got in very early with a strike out/summary judgement application.

[andydd]

The court process can be slow and painful, my relatively simple claim has been ongoing longer than yours, so far I've had delays at MCOL, MCOL sending me paperwork for so meone else's case, delay in allocated to my local court, delay in mediation, other side not responding to mediation, mediation 'window' ending, summary judgement application made for their counterclaim, other side offering to withdraw counterclaim and pay my costs, court then going ahead with summary judgment despite knowing full well it was settled, court then striking out everything, then admitting their error and re-starting claim..phew !

 

Still waiting to hear whats next.

[Emz0305]

On the order dated 31st March which ordered that the Directions Questionnaires had to be filed by 17 April (which claimant didn't bother doing) it was also ordered that by the same date, the allocation fee of £40 is due. It also stated below that following further notice, if the allocation fee is not paid by the due date, the claim/counterclaim will be automatically struck out.

 

It's still outstanding??

 

They proceeded to send out the Trial Date Notice asking the claimant to pay hearing fee of £170, which he has apparently now paid, but still has not paid the £40 and the court appear to have just let this go?

 

Also, why haven't the court advised us what to prepare? Don't they have to give directions about disclosure etc?