Alleged Wrong Defendant and Civil Procedure Rule 16

[Enough]

I have contacted the courts to request a default judgement but they have been less than helpful, as you can see below.

I'm not sure if they are ignoring my request for a reason or whether they are just useless. I'd appreciate any tips anyone has.

It's also probably worth noting that the Notice of Change I received before the defence, allocated a solicitor on behalf of PIHL not Premier Inn Ltd. (although it did correctly reference the case at the top as Premier Inn Ltd v Me) so really I don't think the court should be accepting any correspondence from them at all.

Thanks,

E


Email from me 16th November:


Court Auto Reply:


Email from court 18th November (Containing same defence as posted above):


Reply from me 18th November:


Court Auto Reply:


Reply from court (to my email from 16th November) 21st November:


No further replies.

[atticus]

R0b may have another view, but I think there is little point pursuing that line further. You would need to make a formal application for judgment, paying the Court fee. While in the hearing you would point out the offending paragraph to the judge, he/she may well consider that there is enough of a defence that the named defendant is not liable and that you should have applied to amend the claim (as discussed in the earlier part of this thread) instead.

My own view is that showing the complete lack of clarity on the part of 'Premier Inn' about who you were contracting with, the judge may consider that they brought this on themselves and should pay the costs of that application.

[R0b]

I was just about to say the same thing as Atticus, definitely not worth the hassle because bringing an application would put Premier Inn on notice and they could remedy the issue by simply filing a defence before any hearing is heard so you would end up losing out on time and costs.

Plough on but I wouldn't alert them to the issue until the hearing and use that as your primary argument with the judge. I would be cheeky and at the start of the hearing, make an oral application for summary judgment on the basis there is no defence filed by the defendant. I'm sure Premier Inn will defend it and try to argue that they should be allowed to file a defence but really you should resist that for reasons already explained e.g. the defendant named in the defence is not party to the claim and the defence makes it clear that it is being filed on behalf of the wrong defendant. They can't have a second bite at the cherry and seriously prejudices your position when they have had plenty of time to file one, not to mention they have legal representatives who should know better. This is not simply chalked down to a mistake.

Personally, I would file the directions questionnaire as normal, and select no as the option for mediation then wait for a date for your hearing but it's up to you. Whilst you wait for the hearing you can then start on your witness statement.

[Enough]

Thanks again both of you. Regarding the N180, what reasons should I give for declining the option of a judge making a determination without a hearing?

Thanks,

E

[atticus]

you could refer to the paragraph in the defence where it is said that the defendant should be substituted.

[Enough]

Would that not give the game away, given that I have to send a copy to the defendant?

[atticus]

You need to tell the court and the other party what order you are asking the court to make, and why. I suppose some may consider that to be "giving the game away", but openness is required.

[Enough]

Plough on but I wouldn't alert them to the issue until the hearing and use that as your primary argument with the judge. I would be cheeky and at the start of the hearing, make an oral application for summary judgment on the basis there is no defence filed by the defendant. I'm sure Premier Inn will defend it and try to argue that they should be allowed to file a defence but really you should resist that for reasons already explained e.g. the defendant named in the defence is not party to the claim and the defence makes it clear that it is being filed on behalf of the wrong defendant. They can't have a second bite at the cherry and seriously prejudices your position when they have had plenty of time to file one, not to mention they have legal representatives who should know better. This is not simply chalked down to a mistake.

Personally, I would file the directions questionnaire as normal, and select no as the option for mediation then wait for a date for your hearing but it's up to you. Whilst you wait for the hearing you can then start on your witness statement.

Hi Rob, do you have any suggests for how I can answer Section D of the N180 without alerting them to the issue?


Many Thanks,


E

[R0b]

I would just tick no to that box and leave the reason why blank. I don't know why the form has introduced this question because you aren't really obliged to answer. In accordance with CPR 27.10, claims allocated to the small claims track me be heard without a hearing if all parties agree, but there's nothing in the CPR that requires you to explain your reason.

IF you want to put something in there or you are asked by the court to respond you may want to say something like there are questions you would like to put to the Claimant under cross examination to support your defence.

I completed the DQ recently and ticked no without explaining why and the court never questioned it, but that's not to say it won't happen to you. I would avoid explaining simply because you don't have to and point the court to the relevant rule in the CPR then put the onus on them to point out where in the CPR you are required to explain your reasons for refusing to explain why the claim should not be heard on the papers (there isn't a rule as far as I'm aware, only 27.10).

[atticus]

So is the OP not going to apply to substitute the defendant?

[R0b]

So is the OP not going to apply to substitute the defendant?

The OP has chosen not to, and I would be inclined to agree with the OP in this case - nothing on the website suggests Premier Inn Hotels Limited was the contracting entity and there are a number of factors pointing strongly towards Premier Inn being the contracting entity not PIHL. Just because PIHL says the contract was supposed to be with them and not PI, doesn't automatically make it so.

[Enough]

Thanks Rob, I've submitted the form without an explanation for part D. I'll let you know if I hear anything.


E

[Enough]

Just to update you, I have received a copy of an N180 completed by PIHL and served to me via their solicitor. The form does not mention PIL only PIHL.

The form they have completed is an old version of the N180 from 2014, which does not include section D (regarding the suitability for a determination without a hearing). They have failed to comply with the instructions sent from the court "Both parties now need to complete the attached Directions Questionnaire before xx/xx/xxxx" because they have filled out a different form and the deadline has now passed. Is this reason enough to request a default judgement?


Thanks,


E

[atticus]

No. Sorry.

[Enough]

I now have a hearing date set and I wondered if anybody would be willing to take a look at the witness statement I have drafted and offer any further advice please?

I'm not sure how much information I should leave out of it regarding the misleading company name, in order to prevent the defendant from coming to the hearing prepared for that battle. Though likewise, I don't know how much I should include such that I can rely on it if the case isn't immediately ruled in my favour.

I've attached it below.


Many Thanks,

E