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

[Emz0305]

Really? I thought I'd droned on far too long lol, I'd left loads out too.

 

Right, what's my next step? Can anyone add anything? Should I be asking the judge to strike out the case? Questions questions.

 

Also, my dad is going to really struggle attending court for this application hearing due to his business, so does really need to attend or should I refer to that also in the statement?

[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)

[Emz0305]

I think I'll probably have to file tomorrow now as I have kids to collect from school etc.

[SuperVillain]

Maybe a bit OTT, but if you mention CPR 3.4 as above, you might also consider saying that the Court should not exercise its discretion to grant relief from these sanctions under CPR 3.9 as the Claimant's non-compliance has been substantial and furthermore that the Claimant has not provided any adequate explanation for his non-compliance.

 

(relevant case - Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537)

[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.

[Emz0305]

Maybe a bit OTT, but if you mention CPR 3.4 as above, you might also consider saying that the Court should not exercise its discretion to grant relief from these sanctions under CPR 3.9 as the Claimant's non-compliance has been substantial and furthermore that the Claimant has not provided any adequate explanation for his non-compliance.

 

(relevant case - Mitchell v News Group Newspapers Limited [2013] EWCA Civ 1537)

 

so should I also include this as well? How should I word my sentence so that it includes the relevant CPR's and also asking judge for a strike out?

 

I've now got a mental block after typing up the statement today and trying to word it well.

[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 ?

[Emz0305]

This needs to be all near the end of the w/s yes?

[SuperVillain]

As andydd said above, then the bit about relief from sanctions could be added to your paragraph 17 - you could probably tag it on at the end of the paragraph just as I wrote -

 

"The Court should not exercise its discretion to grant relief from sanctions under CPR 3.9 as the Claimant's non-compliance has been substantial and furthermore the Claimant has not provided any adequate explanation for his non-compliance."

[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 ?).

[Emz0305]

No it's not the actual full hearing just a hearing for application to set aside the set aside.

 

If I file this w/s will it even be looked over by the judge before this next hearing?

 

Not sure on the process sorry.

[SuperVillain]

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 ?

 

Yes it looks correct to me:

 

More specifically the statement of case should be struck out under CPR 3.4 (2)© "that there has been a failure to comply with a rule, practice direction or court order."

 

which in this case is failure to comply with CPR 7.4(1)(b) Particulars of claim must "subject to paragraph (2) be served on the defendant by the claimant within 14 days after service of the claim form."

 

The Claimant may apply for relief from the sanction of striking out under CPR 3.9(1), but the Claimant should not be entitled to such relief as his non-compliance was substantial, detrimental to the Defendant, and without any adequate explanation as per the ruling in Mitchell v News Group Newspapers.

 

His failure to serve a copy of the application to reverse the set aside will be a breach of CPR 23.7(1).

 

Although important to note that 23.7(1)(b) says "except where another time limit is specified in these Rules or a practice direction, must in any event be served at least 3 days before the court is to deal with the application."

 

So if the hearing is 11th March he can serve it up till this Friday?

[Emz0305]

Yes it looks correct to me:

 

More specifically the statement of case should be struck out under CPR 3.4 (2)© "that there has been a failure to comply with a rule, practice direction or court order."

 

which in this case is failure to comply with CPR 7.4(1)(b) Particulars of claim must "subject to paragraph (2) be served on the defendant by the claimant within 14 days after service of the claim form."

 

The Claimant may apply for relief from the sanction of striking out under CPR 3.9(1), but the Claimant should not be entitled to such relief as his non-compliance was substantial, detrimental to the Defendant, and without any adequate explanation as per the ruling in Mitchell v News Group Newspapers.

 

His failure to serve a copy of the application to reverse the set aside will be a breach of CPR 23.7(1).

 

Although important to note that 23.7(1)(b) says "except where another time limit is specified in these Rules or a practice direction, must in any event be served at least 3 days before the court is to deal with the application."

 

So if the hearing is 11th March he can serve it up till this Friday?

 

My head hurts. Not sure what out of all this I'm to include. Could someone possibly explain in dummy terms what I should include and at what part?

 

Thanks by the way, all this info from everyone is brilliant help.

[SuperVillain]

My head hurts. Not sure what out of all this I'm to include. Could someone possibly explain in dummy terms what I should include and at what part?

 

Thanks by the way, all this info from everyone is brilliant help.

 

Ok this is just my opinion - your witness statement is about defending this application to re-instate judgment.

 

So it should start with why that application should fail.

 

After the initial paragraph about who's making the statement, something simple like,

 

2. "This witness statement is in opposition to the Claimant's application to re-instate Judgment which was set aside by order of District Judge X on XXth Feb 2014 at XXX County Court".

 

3. "The Claimant has not served particulars of claim upon the Defendant pursuant to CPR 7.4. Default Judgment was obtained against the Defendant and was set aside due to the Claimant's non-compliance. Judgment remains defective and should not be re-instated."

 

Then mention CPR 3.4 -

 

4. No statement of case has been served upon the Defendant and therefore the claim should be struck out under CPR 3.4 as the Claimant has disclosed no reasonable grounds for bringing this claim.

 

Then

 

5. Notwithstanding the above, [then continue from your paragraph 2 as to why the claim would be disputed even if he did serve particulars].

[Emz0305]

And then follow on with the whole w/s that I attached. And do I still need to add the bits to para 17 or should I leave it exactly how it is?

[SuperVillain]

Definitely add the bit to para 17 about CPR 3.9.

 

Relief from sanctions would be say, if you won and his claim was struck out entirely, he could apply to get that decision reversed.

 

But due to his non-compliance you could probably nip that in the bud at this hearing as long as you get a half decent judge.

[Emz0305]

Ok, I'll edit the w/s in the morning to include all the above then maybe upload again in the morning for a final look over?

[SuperVillain]

Sorry slight amendment - I just re-read your witness statement particular paragraph 13...

 

So my suggested para 3 now reads:

 

3. "The Claimant has not served particulars of claim upon the Defendant pursuant to CPR 7.4 and in breach of the Order of XXXX County Court dated 12th February 2014. Default Judgment was obtained against the Defendant and was set aside due to the Claimant's non-compliance. Judgment remains defective and should not be re-instated."

[Mike_hawk]

Emz

 

Been without broadband all day, just taken a brief look at your w/s and it looks good to me......... bear in mind the court can dispose of the case in entirety at the hearing so its usually prudent to include reference to 3.9 as others have noted.

 

Apparently I will be dongle free tomorrow and should have decent access to the site, will keep an eye on your thread for the revisions to your w/s

[Emz0305]

Emz

 

Been without broadband all day, just taken a brief look at your w/s and it looks good to me......... bear in mind the court can dispose of the case in entirety at the hearing so its usually prudent to include reference to 3.9 as others have noted.

 

Apparently I will be dongle free tomorrow and should have decent access to the site, will keep an eye on your thread for the revisions to your w/s

 

Thanks Mike and same to everyone else

[Emz0305]

This is my amended W/S. Have I put all the CPR etc in the correct places?

[Emz0305]

If this is ok, how do I go about filing at the court etc?

[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

[Emz0305]

Right, done 3 copies. Will send by recorded first thing in morning. Is there anything I need to include in the envelope for the court of shall I just enclose the witness statement and nothing else. Will they know what it's to do with by the claim number?