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

[Mike_hawk]

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.

[Emz0305]

Andy does it still not alter the fact that the defendant doesn't have to acknowledge service until upto 14 days after service of POC? That is what the notes attached to the claim stated and also the wording on the actual Acknowledgement of service form? This is where I'm confused? I didn't see any exception wrote on the claim form? How is the defendant meant to follow procedure if their own notes are incorrect?

[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.

[Mike_hawk]

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 6.4 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.

 

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

[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 !)

[Mike_hawk]

Hopefully we can look at adding some strength to Emz w/s and get something filed/served by Monday night......... until such time that the poc are served there is no CPR compliant case to answer. The court can't dispose of this case without a defence and the defence can't be filed in the absence of the claim.......... it's a ridiculous position to be faced with but clearly something which requires the judges intervention.

 

Really not sure what the claimant hopes to achieve or what the dj has in mind to remedy, by setting aside the previous order the case is effectively returned to an irregular judgment in default........... I have a suspicion that the claimant will be stamped on fairly hard at the hearing but it remains to be seen just how much relief he will be granted.

[Emz0305]

Crikey just read the link which basically says what I thought. I now have a headache from reading all this lol

 

Please please excuse me if I appear thick at any point, (I'm Blonde) but as the judgement was set aside and he has applied to have our set aside, set aside, will sending the discussed W/s to the judge prevent him from granting another set aside? Do I refer to the original judgement being irregular seeing as defendant didn't have to send AOS because of none service of POC? Just not sure what I can and can't say in the W/S?

[Emz0305]

And forgot to say thank you so far you have all been brilliant.

[Mike_hawk]

The w/s should provide the judge with some background to the case and the events since service of the claim form, you can set out within the statement why you believe the claimant should not be granted relief.

 

Include any pre action conduct you believe is relevant; did he complain about the service received, did he offer you the opportunity to inspect and rectify if necessary, did he provide any 3rd party quotations or identify the damage, has he identified the basis of his claim?.........£1500.00 - £2000.00 seems more akin to a wild stab in the dark than a genuine estimate of damage.

 

Don't worry about the relevant rules at the moment, draft the statement and we can help you fill in the blanks for the judge to consider.

[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.

[Emz0305]

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).

Sorry Andy I must have missed this comment yesterday. What exactly do they mean? We had loads of letters from the claimant with figures on, pieces of paper with scribbles on and photographs that he'd took himself etc One letter he wrote Enclosed herewith are copies of statements and exhibits I intend to rely on in court, blah blah then on back page he writes his name and claimant then my dads and defendant and signs it. Then attached to that is 8 pages of Circumstances and events, mechanical data and facts etc. Is this his POC? It was sent to us in September.

[Mike_hawk]

If you read the notice it recognises that CPR 12.3 has not been satisfied and the default judgment cannot stand http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part12#12.3

 

The documents he annexed to his letter to the court were not served on you post service of claim form and he has been ordered to get his ducks in a row by filing and serving.

 

The docs you refer to could form his particulars and witness evidence but until such time they are filed and served in compliance with the rules he is prejudicing himself as well as you as the court will not consider them as they currently stand. The logic behind the rules is intended to establish a level playing field for all parties, it would seem a little unjust for the court to make a decision based on papers that the other side may have no knowledge of....... ergo, it won't until such time that the rules of service are satisfied.

[Mike_hawk]

Also...... note .4 'you must file with the court and serve on the other parties an application that sets out your reasons for objection'

 

It does seem that he has little or no regard to the courts jurisdiction

[Emz0305]

Also...... note .4 'you must file with the court and serve on the other parties an application that sets out your reasons for objection'

 

It does seem that he has little or no regard to the courts jurisdiction

 

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

[Mike_hawk]

He's been ordered to file and serve.......... if he hasn't served [given/sent to you] he's failed to comply again. It won't do your case any harm to email the court advising it of the service failure and asking for your correspondence to be annexed to the case file and to be placed before the judge.

[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.

[Emz0305]

Here is a copy of the witness statement that we've put together. I still think I've probably waffled on a bit and maybe gone into too much detail. Could you please take a look and see what you think and see if there's anything I need to remove or add?

 

Thanks

[Emz0305]

Arghh sorry just checked and saving it in doc format messed up all the bullet numbers. Can I attach it in ODF format instead?

[Andyorch]

PDF ....yes.

[Emz0305]

Sorry meant to say ODT document. I'm using open office :/

[Emz0305]

PDF see if that works

[Andyorch]

[Emz0305]

Have you read it Andy? It's rubbish isn't it? I have been so stressed writing this its took me days and I've got palpitations, seriously LOL

[Andyorch]

No I think its excellent...a WS is what it is.... your words and description of events leading to the claim...a chance to express more informally than can ever be done in a defence.