Court claim (goods not delivered - taken supplier to court)

[gio70]

Thanks R0b - all duly noted. However, I am not entirely clear on the following: PD 5.4(1)(b) covers documents for which application/permission is not required.

According to 5.4B(1) these are listed in PD 5A 4.2A. PD 5A 4.2A says:

A party to proceedings may, unless the court orders otherwise, obtain from the records of the court a copy of –

(a) a certificate of suitability of a litigation friend;

(b) a notice of funding;

(c) a claim form or other statement of case together with any documents filed with or attached to or intended by the claimant to be served with such claim form;

(d) an acknowledgment of service together with any documents filed with or attached to or intended by the party acknowledging service to be served with such acknowledgement of service;

(e) a certificate of service, other than a certificate of service of an application notice or order in relation to a type of application mentioned in sub-paragraph (h)(i) or (ii);

(f) a notice of non-service;

(g) a directions questionnaire;

(h) an application notice, other than in relation to –

(i) an application by a solicitor for an order declaring that he has ceased to be the solicitor acting for a party; or

(ii) an application for an order that the identity of a party or witness should not be disclosed;

(i) any written evidence filed in relation to an application, other than a type of application mentioned in sub-paragraph (h)(i) or (ii);

(j) a judgment or order given or made in public (whether made at a hearing or without a hearing);

(k) a statement of costs;

(l) a list of documents;

(m) a notice of payment into court;

(n) a notice of discontinuance;

(o) a notice of change; or

(p) an appellant's or respondent's notice of appeal.

So, looking at the above, I don't think the correspondence between the defendant and the court, as well as any other documents submitted by the defendant as part of the case, outside of any witness statements (and related documents) is covered by that section.

I think I'd need a permission to get these - in other words, the paragraph I'd need to follow is PD 5.4D(1)(a), not PD 5.4D(1)(b) and submit an application to the court.

If so, is this to do with completing N244 (and paying additional fee)? If that is the case, do I still have to pay the fee you quoted in your previous post on top of that?

Can you confirm please? Many thanks.

[R0b]

That's true, court correspondence is not listed but you could still try anyway by arguing that under CPR 39.8(1) in that any communications sent to the court by one party, must copy in the other party.

Failing that, you will need to make an application and pay the fee unless you are eligible for a fee exemption i.e. low income. I suspect however, an application will be needed.

[gio70]

Thanks R0b. Difficult one for me... An application is likely to set me back £255 (p. 8 of the EX50 document you were kind to link me to, unless I've got that wrong), but on the other hand, time is of essence: I don't know when is the hearing going to be rescheduled for and I need to see what has been submitted to the court by the defendant.

Here is another question: If I submit an application before I am notified of the new hearing date, does that mean the outcome of that application must be known before that hearing is scheduled? In other words, is my application going to take precedence over the new hearing date and must be processed first?

Thanks.

[gio70]

Any help with this? Also, reading EX50 I am now not sure which application fee is applicable to me: £255 or £100? Do I need a notice if I am submitting an application asking the court for permission to see the documents required? If not, then £100 is the one I need to pay. Is that right? Thanks.

[R0b]

Fee is £255 for any application using N244. The £100 fee is for things like consent orders and is not relevant here. You should normally make a notice application unless it’s justified that a without notice application is necessary and exceptional - 99/100 it should be a notice application.

logic would suggest the request for disclosure should take place before the hearing but that doesn’t always happen. It would be sensible to explain the current position and that your application should be heard before any trial date. Important thing is you need to be proactive about it, very dangerous if you let the court take its time.

I’m not sure what you are going to gain from making a request but that’s something you need to weigh up yourself.

[gio70]

Thanks R0b. In the end, I decided against this, at least at this stage, due to costs - spending £255 is a bit much.

Quick update on the case itself - I have received notice of trial date and the case is now rescheduled for late April 2022.

However, I am still asked to use a video link and not directly attend.

What are my options if I want to directly attend this hearing (not via video link or a phone call) - is there a way to ask for this and if the court can't provide direct attendance to ask to move this case to another court that will? What options do I have?

Surely, they can't force me to use a video link for this?

Thanks again!

[R0b]

A video hearing is an option the court could make, so yes they can force you unless there is good reason not to. You would need to make an application and explain reasons why the trial should be heard in-person. I've seen a few application requests for in-person hearing rather than telephone/video but most if not all have been rejected.

Is there a reason why you can't do a video call?

[gio70]

Thanks R0b. Two reasons: my internet connection is rubbish, so not sure it will take the video bandwidth required for this and the last thing I want is to have any sort of impediment during my hearing. Using a phone line is too restrictive as I can't see anything.

The second reason is purely for personal privacy: I am not very comfortable with having to share the interior of my living quarters with anybody I do not know and I also have a problem with broadcasting my image where I have no control of who might be using that image to do whatever they like with it.

[gio70]

Quick update on this...

After a few letters exchanged with the supplier's solicitors, I've got them to accept an offer to settle for £235, which covered most of my claim (excluding my postage and other expenses, as well as £100 for extra damages, which I wasn't probably going to get anyway).

The text of that letter reads:

"I have received confirmation from our Customer Services Department that a cheque for £235 has been processed and sent out to you which you should receive within 28 days. This is in full and final settlement of your claim and any all matters relating to it."

(please note that it does say "and any all matters relating to it" exactly, which is not 100% syntactically correct).

So, given the above, I have two questions:

1. If I get the cheque as promised and subsequently close the case and instruct the court to vacate the hearing, would the supplier then be able to re-open a separate case/claim against me for the "forgery" and "deceit" part of my original claim or anything they did not like from my original claim (see claim documents attached at the beginning of this thread)?

2. What is the proper process of "closing" a claim - I know I could simply write a letter to the court to vacate the hearing and state that agreement has been reached between parties. Is there anything else, like complete a form (N279?)?

Again, if I do that and go forward with closing the claim, I'd need to be absolutely certain that there is no coming back from the supplier on anything they may not have liked in the original claim.

Thanks for any help and assistance.

[gio70]

Any help with this? Anybody?

[R0b]

So, given the above, I have two questions:

1. If I get the cheque as promised and subsequently close the case and instruct the court to vacate the hearing, would the supplier then be able to re-open a separate case/claim against me for the "forgery" and "deceit" part of my original claim or anything they did not like from my original claim (see claim documents attached at the beginning of this thread)?

Yes they could in theory, as fraud unravels all. However, there would need to be some compelling evidence from them to show there was indeed some kind of fraud and for the amount being settled, I doubt they would want to even consider that unless they had some kind of vendetta against you.

2. What is the proper process of "closing" a claim - I know I could simply write a letter to the court to vacate the hearing and state that agreement has been reached between parties. Is there anything else, like complete a form (N279?)?

It used to be common practice for you to write to the court and tell them you have settled the matter and that would be the end of it, but I have seen some courts and judges insist that any settlement agreement would need to be in the form of a consent order which is subject to an application and fee. If that is the case then you want to cover your back and get them to agree to pay for any application fees should a court require it. Alternatively you could simply discontinue the claim but you need to make sure that any settlement means they can't recover their costs back in that event - there is a risk that if you discontinue before the claim is allocated to the small claims track, you are on the hook for legal costs as they are recoverable at that stage.

Again, if I do that and go forward with closing the claim, I'd need to be absolutely certain that there is no coming back from the supplier on anything they may not have liked in the original claim.

Settlements do not need to be in writing and can be verbal (but hard to prove) but it is common to have a settlement in the form of a Tomlin Order. This is essentially a consent order with a schedule of terms the parties have agreed as part of the settlement. The main body of the consent order confirms that the case is stayed subject to the terms in the schedule being complied with otherwise you are free to continue your claim. The Schedule is essentially a contractual agreement and does not get filed with the court but is kept by each of the parties.

Something like that does require an application for the court to rubber stamp and turn into a court order but you can do that without a hearing so reduces the normal fee. Otherwise you can agree and sign something in writing but you have the issue of how to discontinue the claim and/or if they don't send a cheque, you will need to re-issue a claim and pay further fees and start the whole process again.


Can I ask, is this just a confirmation letter of what you agreed verbally with them or did you tell them you will discontinue the claim subject to the settlement being made in writing and agreed by both sides? If you already agreed the settlement terms then you don't have any leg to stand on because you can't alter something that is already accepted.

[gio70]

Thanks R0b, much appreciated. Interesting response! A few things to note:

The case is already allocated to the small claims track. A hearing has already been postponed once due to lack of judges - that was in June last year (I think). Another hearing is due again in April.

Regarding the correspondence, a few months back I indicated to them what amount I'd be willing to accept "in full and final settlement of the claim and all matters related to it".

I did not receive a response until the start of December when I was asked whether my position/offer is still valid. I did confirm that it is, provided they do 2 things:
- Confirm in writing with a declaration from them that they offer the agreed amount "in full and final settlement of the claim and all matters related to it"; and
- Enclose a cheque for the agreed amount;

In the same letter I also stated that "I will inform the court that full and final settlement has been reached between parties, thus the hearing can then be vacated and the above case discontinued".

Strictly speaking, their declaration isn't what was agreed as it says "and any all matters relating to it" (it should have been "and all matters related to it").

Also, in my response to them I merely indicated that I will inform the court that an agreement between parties has been reached, the hearing can be vacated and the case can be discontinued, but did not confirm that I will file for discontinuing the claim myself - fine line maybe, but I did not agree to discontinue the claim.

Interesting to note that they were pushing me to fill out this N279 form to discontinue the claim. Given what you wrote above R0b, I see why that is.

So, the my most important issue for me still is whether, given the above, they could still pursue parts of my original claim they did not like (like the "forgery" and "deceit" parts), even though they offered the agreed amount "in full and final settlement of this claim and all matters related to it" (I will ask them to change their declaration as it was not what we agreed)?

Also, given what you suggested above R0B whether I could pursue the Tomlin Order or a proper order and ask them to fork the fee for that application (without a hearing)?

Thanks again.

[R0b]

If the case is already allocated to the small claims track, there is probably less of a risk here as legal costs are not recoverable once allocated except for unreasonable conduct and that threshold is a high one generally. Couple of things to note:

- N279 is the formal notification for discontinuation of a claim, so there is nothing unusual about that.

- It looks like they have not accepted your offer but instead provided a counter-offer (effectively rejecting yours and offering new terms). Your offer required an enclosed cheque whereas their letter says within 28 days. Onus is on you to choose whether you accept their counter-offer or reject it and provide new terms of settlement.

You could make a new counter-offer and say you will accept said sum by way of cheque which will delivered no later than 28 days from the date of their acceptance of the offer and until the sum of money has been deposited to your account in cleared funds, only then will you file a notice of discontinuation (why would you discontinue before you have received payment? They could refuse to send it knowing there is no claim over their head). It is always good practice to put a time limit on your offer because if you don't, it becomes open ended for the other side to accept at any time and it does catch many people out, particularly those who are not represented.

If you do make a counter-offer, perhaps make it clear that you see their reply as a counter-offer since they did not enclose the cheque as you stated. Therefore you reject their offer and propose the following new offer.

Like I said before fraud unravels all but you could say something like "full and final settlement of the claim including any matters related to it that either party may have against the other whether now or in the future"

Tomlin Order is probably overkill for this and not necessary if you get the above confirmed.

[gio70]

Thanks R0b and apologies for this late response, but I was not able to do that sooner due to illness...

I am leaning towards using a Tomlin order, but will need some assistance, in particular as to how to make the schedule confidential (between parties and not to be released by the court in the public domain).

Here is my draft order:

IN THE COUNTY COURT ......

Claim No. .....

Date: ....

BETWEEN ....
Claimant

and ...
Defendant

--------
CONSENT ORDER
--------

UPON parties having agreed to the terms set out in the attached SCHEDULE

BY CONSENT IT IS ORDERED THAT:

1. All further proceedings in this claim are stayed upon the terms set in the SCHEDULE to this order save for the purposes of carrying such terms into effect.

2. Either party has permission to apply to the court to enforce the terms upon which this matter has been stayed without the need to bring a new claim.

3. There shall be no order as to costs

Dated this [DATE] day of [MONTH] 2022

We consent to an order in the above terms

Signed........................................ Name: ............
Claimant

Signed........................................ Name: ............
Defendant


Here is the schedule draft;


IN THE COUNTY COURT ......

Claim No. .....


BETWEEN

....
Claimant

and

...
Defendant

--------
SCHEDULE
--------

1. The Defendant shall pay the Claimant the sum of £235 by [14 days from date of schedule] in full and final settlement of this claim and both parties HEREBY RELEASE one another from all existing or potential claims (including any liability for interest or costs) of any nature arising out of or in connection with or relating to the subject matter of this claim or matters identified in the Particulars of Claim and the parties HEREBY AGREE not to commence or prosecute any proceedings against one another arising out of or in connection with such matters.

2. If payment is not made by [14 days from date of schedule] then the settlement sum shall attract interest of 8% per annum and the Defendant shall be liable on an indemnity basis for the Claimant's costs in setting aside the stay to seek enforcement of the compromise including the interest payable as a consequence of late payment.

Dated this [DATE] day of [MONTH] 2022

We consent to the above terms


Signed........................................ Name: ............
Claimant

Signed........................................ Name: ............
Defendant


Would the above be sufficient? Thanks in advance.

[gio70]

Any help / assistance with this? R0b? Anyone?