How to request strike out of N244 app scheduled for urgent hearing

[muffinbuster]

Hi,

I am the Claimant on a small claims case and was granted default judgement a few months back as the Defendant's defence and counterclaim were struck out due to ongoing non-compliance with Court orders.

Months after the default judgement order was made I started to receive payments via the Bailiffs (although I didn't authorise a monthly payment plan and the Court order stated payment was required immediately - what can I do about this?).

I have just received a N244 application from the Defendant that the Court forwarded to me, requesting a hearing in order to present their defence/counterclaim, stating that the Court lost the case file. An order from a different Judge (Deputy) has been issued for an urgent hearing per the N244 application request.

The N244 Statement of Truth under Section 10 has not been signed and the content of the document is clearly intended to mislead the Court into providing the Defendant with a hearing to present their defence/counterclaim. The truth of the matter is that the defence/counterclaim has been struck out. It has nothing to do with the fact that the Court lost the file. The Defendant has attached an Acknowledgement of Service which has no relevance other than to mislead and support the point about the defence/counterclaim not having been seen by Court due to the case file loss.

No reason has been given to justify the delay in N244 form submission.

The defence/counterclaim has no legal grounds or prospect of success and I have already provided a detailed breakdown of the reasons for this in my response particulars of claim, which formed the basis of the default judgement in my favour.

How do I get the N244 application struck out for an abuse of Court procedure on the part of the Defendant by misleading the Court into thinking that the defence/counterclaim has not been seen because the Court lost the file? It has been struck out. Also, is the N244 invalid due to the Statement of Truth not having been signed? Is an email to the Court Manager sufficient? Or is there a specific application form/fee that I need to submit to the Court?

I'd be grateful for your prompt assistance.

[pt2537]

Hi,

I am the Claimant on a small claims case and was granted default judgement a few months back as the Defendant's defence and counterclaim were struck out due to ongoing non-compliance with Court orders.

Months after the default judgement order was made I started to receive payments via the Bailiffs (although I didn't authorise a monthly payment plan and the Court order stated payment was required immediately - what can I do about this?).

I have just received a N244 application from the Defendant that the Court forwarded to me, requesting a hearing in order to present their defence/counterclaim, stating that the Court lost the case file. An order from a different Judge (Deputy) has been issued for an urgent hearing per the N244 application request.

The N244 Statement of Truth under Section 10 has not been signed and the content of the document is clearly intended to mislead the Court into providing the Defendant with a hearing to present their defence/counterclaim. The truth of the matter is that the defence/counterclaim has been struck out. It has nothing to do with the fact that the Court lost the file. The Defendant has attached an Acknowledgement of Service which has no relevance other than to mislead and support the point about the defence/counterclaim not having been seen by Court due to the case file loss.

No reason has been given to justify the delay in N244 form submission.

The defence/counterclaim has no legal grounds or prospect of success and I have already provided a detailed breakdown of the reasons for this in my response particulars of claim, which formed the basis of the default judgement in my favour.

How do I get the N244 application struck out for an abuse of Court procedure on the part of the Defendant by misleading the Court into thinking that the defence/counterclaim has not been seen because the Court lost the file? It has been struck out. Also, is the N244 invalid due to the Statement of Truth not having been signed? Is an email to the Court Manager sufficient? Or is there a specific application form/fee that I need to submit to the Court?

I'd be grateful for your prompt assistance.

Simple answer is, you dont.

Longer answer, the Defendant is entitled to make whatever application it deems necessary. If it is the case that the N244 is to set aside an order, then one should look at whether there are procedural errors which entitle the other party to resist the application or challenge it etc.

It seems to me that rather than trying to raise allegations that they are trying to mislead the Court, you would be better served addressing their application.

1) the application seems to be late, Regency Rolls v Carnell said 28 days was too longer delay. Does their application explain the delay in making the application?

2) to set aside Judgment, they will need relief from sanctions per CPR 3.9 and Denton, now then what reasons do they give for relief being granted?

3) you say no statement of truth, is there any info in box 10? if there is then you look at CPR 22, and the consequences of such.

seems to me the application can be opposed, with the three points above, id reckon theres a really good chance of opposing their application depending on the answers to point 1 to 3

[muffinbuster]

Thank you for your prompt and informative response PT2537, most grateful

Is an email to the Court Manager the correct mechanism by which to address the procedural errors?

Responses to points 1-3 of your email are as follows:-

1) No explanation was given to justify the delayed application.
2) There was no request to set aside judgement or for relief from sanctions. Only a request to allow the Defendant to have a hearing to present their defence/counterclaim because the Court had lost the file.
3) The tick boxes that provide the context of the text were all blank, as was the applicant signature. The only text present was to request a telephone hearing to allow the Defendant to defend themselves as the Court had sent them a letter last year saying that they had lost the case file. A name and date were present.

As a Litigant in person, am I expected to quote specific CPR clauses or is it sufficient to present the facts?

[pt2537]

Thank you for your prompt and informative response PT2537, most grateful

Is an email to the Court Manager the correct mechanism by which to address the procedural errors?

Responses to points 1-3 of your email are as follows:-

1) No explanation was given to justify the delayed application.
2) There was no request to set aside judgement or for relief from sanctions. Only a request to allow the Defendant to have a hearing to present their defence/counterclaim because the Court had lost the file.
3) The tick boxes that provide the context of the text were all blank, as was the applicant signature. The only text present was to request a telephone hearing to allow the Defendant to defend themselves as the Court had sent them a letter last year saying that they had lost the case file. A name and date were present.

As a Litigant in person, am I expected to quote specific CPR clauses or is it sufficient to present the facts?

No

you would file either a witness statement opposing the application and a skeleton argument to deal with the legal arguments. Writing to the Court must not be done unless you copy in the other side, that is one of the key rules.

It seems to me the best way to fight this is to do so using the rules, you cannot break the rules on the one hand and cry foul at the opponent when they do the same.

[pt2537]

As a Litigant in person, am I expected to quote specific CPR clauses or is it sufficient to present the facts?

Litigant in person or lawyer you have to follow the same rules, the Courts wont give you any indulgences. Barton v Wright Hassell confirmed that was the case.

[muffinbuster]

Further to the help provided previously via this Forum, over 1 month ago I constructed a Witness Statement using a standard MS Word template and emailed it to the Court, requesting that the defendant's N244 application be struck out and the hearing cancelled. I referred to CPR guidelines etc and included the hearing date in the email subject. I have received no postal correspondence from the Court to confirm receipt (apart from the autogenerated email) or any further order from the District Judge.

I did phone the Court a couple of weeks back and was advised that because a hearing is schefuled, the case has been transferred elsewhere. The Court staff said that they sent an email to the hearing centre, requesting urgent review.

Please can you advise what one would expect to happen under these circumstances? I was expecting to receive postal correspondence from the Court to confirm that the request had been sent to the District Judge for directions. Currently the hearing of the Defendant's defence is scheduled for early November. Am i expected to attend this as its not clear from the letter issued. The reason i left the Defendant's property was for fear of harm due to the Defendant's increasingly disturbing mental state and i am frightened to attend a hearing for this exact reason. What would you suggedt? I never considered that it would get to a hearing but due to various Court blunders and admin staff not noticing multiple procedural breaches by the defendant, this is what has happened.

In addition, the Defendant only made one of the multiple payments ordered by the Court. The Bailiffs told me that this is due to there being a defence hearing date scheduled.

Many thanks in advance.