How to appeal

[D87heaven]

Despite a case against me being struck out a hearing went ahead anyway resulting in a CCJ being issued.
How can I appeal this and can I complain about this happening?

[jaguarsuk]

That shouldn’t happen.

You’ll need to make an application to set the judgement aside.

[R0b]

If a hearing went ahead and judgment obtained, it would have to be an appeal rather than a set aside. Clearly looks like a court error and in my view there is probably grounds for bringing a claim against HMCTS for negligence if the claim has been struck out and you have evidence that an order has been made to that effect.

You normally have 21 days to appeal the judgment from the date of the hearing albeit if you only became aware of the decision when you received the order then you should still be able to appeal on that basis.

Cost of the appeal is £120 for County Court if I remember and you will need to use Form N164. You will need to be succinct on your grounds of appeal, but if you want to provide a draft version of the document we can look at it and provide comments.

[D87heaven]

I had 2 letters, an email and made 3 phonecalls to HMCTS confirming it was struck out as no payment made. Confusingly the order mentions this, HMCTS helpline say this maybe because it was still on the court list therefore is assumed to be paid.

[R0b]

Ok so let's work through this logically.

1. So you received the notice of allocation with directions from the court and that the the Claimant was required to pay for the trial fee by X date otherwise it was automatically struck out and the Claimant liable for costs. That is standard wording for directions which you will see on almost all small claims cases and it is intended to be an automatic process so the Claimant does not comply, then neither the Court nor the Defendant need to do anything further. The only way the Claimant can continue the claim is by making an application to set aside the strike out and re-instate the claim, presumably by paying the fee. That correspondence you received from the Court makes it clear they consider the claim to be struck out.

Question: Did you pay the fee for your counterclaim against the Claimant?

2. The Judgment Order (I am reading this as being the one on the left) leaves a few questions yet to be answered:

a. It says that a hearing was conducted remotely through BT MEET ME. Did you at any point receive details or information in relation to the BT MEET ME details and how to join? Was there anything on the Notice of Allocation about BT MEET ME and how to join? What about an email from the Claimant or the Court?

b. The Order says that it appears the Claimant has paid the fee. Personally I think that is pretty poor either from the Judge or the Court Staff (or both) to say that. The Court should have reviewed the Court file and checked whether there was any fee that had been paid. I don't think it is sufficient to say that it should be assumed that the fee had been paid unless there was good reason to. The fact that the Order mentions it suggests it must have been discussed but as above, the Claimant's representative and/or the Court ought to have confirmed it was paid or not. Have you called the Court since to confirm whether that fee has in fact been paid and if so, on what date was it paid?

c. Following the letter from the court confirming that the fee had not been paid, did you receive any further correspondence from the Claimant or representative? I'm thinking witness statements, evidence or other documents which might have indicated that the hearing was going ahead. If you did receive further correspondence, did you query this with the Claimant/Court if the claim was deemed to have been struck out?

3. Is there anything you can think of where you might have made a boo boo along this process which resulted in the hearing going ahead? Have you ignored something believing it not to be relevant?

[D87heaven]

1 I never paid the counterclaim fee as I believed the original claim wasnt going ahead
2 I had details of the bt meet me call attached to an email 8/7/20 and letter 7//7/20 stating the the hearing was PROCEEDING ON THE COUNTER CLAIM ONLY subject to me paying a fee. This was attached to an order (could this be my boo boo)
I called the court and they said it wasnt paid on the 19th june and 29th june
Ive had no witness statement or document packs from the claimant

[R0b]

Well, based on what you have described I think there are decent grounds for appealing the judgment. Thinking aloud, your appeal would be based around the following points:

1. That no hearing should have taken place at all because:

a. You had reason to believe that the Claimant did not pay the fee on time based on

i. A call you made to the Court on X date confirming that payment had not been made.

ii. You received a letter on 7th July confirming that the hearing was to proceed on the Counterclaim only subject to you paying the relevant fee.

b. In light of the above, there was no reason to assume otherwise that the Claimant did not pay the fee by 19th June and therefore the claim was
automatically struck out. You have since called the Court and has again confirmed that there is no record on the Court's file that the fee has been paid. In addition, because you did not pay the fee for the Counterclaim, the hearing should have been vacated as per the earlier Court Order.

c. In any event, even if the fee had been paid by the Claimant:

i. The Court failed to inform you (the Defendant) that the fee had in fact been paid on time and re-issue any further instructions following the letter dated 7 July.

ii. Alternatively, if the fee was paid but after the 19th June, then the claim had nevertheless been struck pursuant to the Court Order and CPR 3.7A1. The strike out was automatic and therefore the judge should not have allowed the hearing to proceed without an application for relief from sanctions and supported with evidence. There is authority for that position in the High Court case of Hyslop v 38/41 CHG Residents Co Limited.

Obviously that's a summary of how I would see your position and I think what you should be seeking from the appeal is for the Court to make an Order that the claim stand as struck out due to non-payment of the fee or, if the hearing fee was paid in time then a re-trial should be ordered and for you to file and serve witness statement and evidence. There might be other things you could add but that depends on the facts of your case.

Hopefully that should give you a starting point for your appeal.

[D87heaven]

Thank you kindly for your advice.

I just spoke to Hmcts again. Definately not paid, they have asked for it to be reviewed by the judge and stated they have never seen anything like it.

[R0b]

It sounds quite bizarre but I wouldn't be relying on the Court staff to put it in front of a judge and would recommend that you follow the appeal process since you only have a limited window of time to appeal. Should you choose to not make the appeal application and are then told you have to appeal, you run the risk of the Court not hearing it since you had a chance to make the appeal within the time limits.

[D87heaven]

UPDATE*
Using the helpful info above I now have a set aside hearing for next March.
The claimants fee was due by 4pm Friday, the fee was received on the Monday so it was s/o in error according to the court.Not sure how that works? Late clearing?
The courts really are a shambles.