Urgent help needed with defence and counterclaim

[R0b]

I think you have hit the nail on the head in that you don't know what you are doing so you are basically taking a punt in the hope something goes your way. Your chances of appeal are severely reduced if permission is granted by the court and you choose not to attend.

I'm not going to respond to every point in your last few posts but I will reply to the key issues below:

1. Unless the court orders otherwise, time for filing your permission to appeal runs 21 days after the date of the court decision.

2. You have to request permission to appeal by filing out Form N164 for small claims. You then have 35 days to file your appeal bundle and the relevant CPR link I gave explains what needs to be included.

3. Normally the permission to appeal will be heard on papers but a judge may order a hearing. If permission is refused, that is the end of the road generally.

4. The appeal will only be granted if the judge considers that there is either a real prospect of success or there is some other compelling reason why permission to appeal should be granted.

5. Grounds of appeal are limited to: A finding of fact, an error in the law or some serious irregularity in the procedural process.

6. It is not necessary for a transcript to be obtained under a small claims case, but the court normally orders one where the appeal relies on what the judge has said or decided in the hearing. The request for a transcript form lists the authorised transcribers for court hearings. The costs of transcripts vary and are charged per 'folio'. A folio consists of 72 words and as a rule of thumb, for a 30 minute hearing I would expect an invoice to be anywhere from £40 to £60, give or take.

So that's a high level overview of the process and now to your points. It's really difficult to give you a step by step process because you need to draft the wording and application and prepare your bundle which you have already admitted is not something you are capable of doing so is it even worth pursuing or are you just wasting everyone's time? That's something you need to consider.

You most definitely need the transcript because you didn't attend the hearing. Any appeal would need to be based around the refusal of your application to extend time for filing your defence and counterclaim. By the way just to be clear, it is not an automatic right for an extension of time, your application is your request for the court which may be refused on a number of grounds. Without the transcript, I cannot see what legal basis you have for challenging the judges refusal.

At best, without the transcript your appeal application would have to say you are challenging the decision for refusal to appeal but because you did not attend you require an extension of time to be able to review the transcript and consider whether there are grounds for appeal. If I remember there is a section on the form that says if you require an extension and give reasons for doing so.

Being a litigant in person is not an excuse, the courts have consistently stated that everyone has to follow the rules and there is no special treatment. I already said before that if you have health issues then you need something substantive to persuade the court. It's not good enough for you to just say you have health issues as anyone can say that as an excuse, so you need something concrete like a medical report that attests to what you are going through.

I'm sorry but I just do not have the time to sit here and prepare your appeal, it requires full knowledge of the facts of your case which I don't have and a lawful basis for bringing the application in the first place. I have a full time job and whilst I am willing to assist where I can, drafting appeals is not something I do especially if its a speculative one.

Personally, I think you are trying to delay the inevitable and whilst I do sympathise with your situation, I would strongly recommend you try to get some support from debt charities or similar organisations.

If you complete the form I will have a look and give pointers as best I can but I'm not going to complete it for you. The questions are pretty straight forward should just read the carefully and answer as best you can - that's if you still want to proceed.

[Blueeyes1]

Many thanks for your reply.

I most certainly do appreciate how valuable your time is. My time and energy is equally as valuable. I certainly never expect anything for free, but my circumstances are not my fault. I actually find it incredibly difficult, and embarassing asking anybody for help.

Sorry if I don't meet your expectations in terms of my personal capabilities, but everybody's personal circumstances are different and my personal mental capacity may not be as good as yours.

I personally have several health conditions, including recovering from a severe brain haemmorage, traumatic brain injury, spinal injury and various other debilitating health conditions. I suffer some cogntive problems as a result of that, and therefore need more clearer guidance than others.I also have severe mental health problems, which also limits my abilities.

I didn't ask for any guidance or advice for debt problems. I came on here specifically for help with this specific court issue.

Having such limited time and energy myself, and also valuing your own valuable time, I do not want to waste my time, or anybody elses. If all you can do is send me links to try to study and learn court procedures myself, that is not helpful for me. I need clear instructions and assistance with drafting / court forms etc... Which I am not capable of doing myself.

I am only becoming more and more confused and this is causing me immense stress.

I would require help with completing all court forms / applications and given clear instruction on what & when need to be filed. Are you able to help with that?

[Blueeyes1]

I have filed request for permission to appeal, along with another help with fees application and also request for transcript. I have no idea if I have completed forms correctly.

Am I supposed to also send a copy of those request forms to the Claimant?

Will I receive any correspondence from the court to confirm if I have been given permission to appeal? How soon should I expect to hear from the court? Should I wait to hear from them before preparing my evidence?

I am not sure if any judge, or the Claimant has seen my defence and Counterclaim - Should I send that again? Do I need to send anything to the Claimant, or send anything else to the Court?

[R0b]

The court normally sends the application to the other side and you should receive correspondence either way. In terms of time, how long is a piece of string? The court will get to it when it gets to it and put before a judge. Expect about 4 weeks minimum but you may want to call before to check it has been received, maybe after 2 weeks.

Think you need to stop clinging on to whether the judge has seen the defence and counterclaim. Call the court and if it is on file then assume the judge has seen it but you can confirm if the defendant was given a copy. Pretty irrelevant at this stage though since you are appealing the decision to dismiss your application to extend time rather than the underlying order

[Blueeyes1]

The court do not answer the phone. It would be helpful to know re the defence and counterclaim. Given that it was filed late, do you think the court would have sent the Claimant a copy anyway? It was sent to the court the day before the hearing took place. Do you think it's likely the judge had seen the amended defence and counterclaim?

I presume it s the judge who made the order who has to give permission to appeal, and if so it would then be passed to a different judge - Is that correct?

It would be helpful to know exactly what documents the new judge would be looking at when they decide if I am allowed an appeal - Would the new judge be able to see all of the original documents (such as original defence & counterclaim, tenancy agreement & original particulars of claim filed from claimant, evidence such as Police and medical records I have filed, the previous court order giving me permission to file properly pleaded defence and counterclaim, my applications for help with fees/extensions of time, and the amended defence and counterclaim)? Are all of those documents relating to this claim kept together in a file to be passed to new judge, or would the new judge only be presented with my application to appeal, along with the copy of most recent court order?

It would be helpful to know, so that I can have a better idea of what information / evidence I might need to present if appeal is accepted? As I wouldn't want to send duplicate evidence and unsure if I will need to file / serve the defence and counterclaim again, given that I do not know if the judge, or the claimant has received it?

Also, In your experience with these kinds of situations, is permission usually granted to appeal in most cases?

If I didn't hear from the court for several weeks, then presumably I would then only have a few days to prepare the bundle of required evidence / documents, which would be impossible. Would I then have to file an application again for a further extension of time?

[Blueeyes1]

I would have though the court would dismiss the claimant solely on the fact that they don't even have legal consent from their mortgage lender to let the property in the first place, let alone all of the other issues, such as the harassment, dangerous property, disrepairs etc?

Not only was I deprived of any peaceful / quiet enjoyment of the property I was paying a lot of money to rent, but this is also depriving me of peaceful enjoyment of my new home!

I have been a tenant many times, and also a landlady, and have never been subjected to such disgusting behaviour and harassment from a landlord before, nor would I have ever dreamed of treating my tenants in this manner. The claimant has very clearly and very intentionally caused me the utmost alarm, distress, with an utter lack of any respect for property law.

I really would struggle to put together a properly pleaded bundle for the court. Somebody else could probably set out my case much faster and much more clearly than I would ever be able to... Would you possibly be able to help with drafting all of the documents / forms required to present my claim?.... I am happy to explain in more detail anything if you need any clarification on the situation?.... If that would help you in any way to be able to help with this?

I would also maybe like to tweak / amend the defence and counterclaim - Am I allowed to do that? Am I allowed to claim for the cost of changing the locks for example? As I didn't include that in the defence and counterclaim.

[Blueeyes1]

I forgot to ask, with photographic evidence, such as the photos I have of the disgusting condition of the property, do these have to be timestamped for the court?... The photos are currently on my iphone, where you can see what date they were taken, but if I sent these via email to the court, there is no evidence of what date they were taken?

There is an inventory as well, with some photos, but not as clear as my photos - But the inventory is over 100 pages and not sure if I am supposed to send a copy of that somehow to the court as well?.... Do I need to send all evidence with the bundle at the same time, if I am given permission to appeal?... I have many dozens of photos of the condition of the property - I would ideally have liked the judge to see all of those photos, rather than just a select few, but not sure how I should email those to the court, as there are so many files?

Are there any specific pieces of evidence that you think I should include to help the judge? I am struggling to see clearly how best to present my claim and do not really want to have to send hundreds and hundreds of documents to the court, so would be helpful for any ideas of exactly what pieces of evidence to include?

[R0b]

There's only so many ways you can contact the court so if you don't want to try by phone, then email and if there isn't a response then follow the complaints procedure for that court.

Appeals are very limited in nature and are not to be used as a second bite of the cherry. I don't know what you have put on your application notice but your appeal should have been against the decision not to extend time for filing your defence/counterclaim. If the appeal is allowed then you get to argue your case at a hearing and that is where all of your evidence should be used, not as part of the appeal. Only documents relevant to your grounds of appeal should be used in an appeal bundle.

Para. 6.4 of Part 52 of the CPR explains what should be included in an appeal bundle and also what you should consider including (link here).

I've already given my provisional view in that I don't think you have much chance of success but I am not a judge who will be reading/hearing your appeal so I could not say which way it will go. If you are appealing the decision for refusing to extend time then you need to explain why the judge was wrong to make that finding and I've already said you would need the transcript to know those reasons as well as any mitigating factors such as your mental health which should be properly evidence not just some letter from your GP.

If you are appealing the earlier order requiring you to file your defence/counterclaim by X date then I think your appeal has much less chance given that you were out of time to set that order aside or vary it.

Tweaking your defence/counterclaim requires permission from the judge so that would need to be raised if the judge grants permission to appeal. Assuming you have no intention of attending then you make life so much more difficult and your only option would be to include it as part of any written submissions to support your appeal.

[Blueeyes1]

Thank you for your reply - Although you haven't answered all of my questions?....

"any mitigating factors such as your mental health which should be properly evidence not just some letter from your GP."

Not just some letter from my GP was actually incredibly difficult to obtain!... There seems to be so much demand for the "victim" to provide the "evidence" for the court - Which is not only inappropriate, but also extremely difficult and not really realistic or possible in the real world......

You haven;t answered my other questions ?

[Blueeyes1]

I think you need to stop clinging on to "medical evidence" for which I have already provided much more than I should have to. Your replies to me are coming across as more "victim-blaming" rather than helpful to me at all... You have ignored many of my questions, which I need to know the answers to, in order to now try to appeal my case.

I don't feel you understand or comprehend the circumstances properly and feel my efforts asking for help do not seem to be helping much?.... Could you answer all of the questions in my previous few posts? Rather than obsessing over "medical evidence" - Which is irrelevant at this stage . ?

[Blueeyes1]

I've already given my provisional view in that I don't think you have much chance of success but I am not a judge who will be reading/hearing your appeal so I could not say which way it will go. If you are appealing the decision for refusing to extend time then you need to explain why the judge was wrong to make that finding and I've already said you would need the transcript to know those reasons as well as any mitigating factors such as your mental health which should be properly evidence not just some letter from your GP.

If you are appealing the earlier order requiring you to file your defence/counterclaim by X date then I think your appeal has much less chance given that you were out of time to set that order aside or vary it.

This just makes no sense to me?

Not sure exactly what you mean regarding medical evidence - If you mean some kind of medical report written by a specialist of some kind, then no, I do not have that. I think the other evidence I have is sufficient.

I am trying my best to follow your advice, including obtaining a transcript - Which is costing me money I cannot afford - But what is the point if you don't believe I have any chance of success? Do you agree with the claimant then ?

If i'm having to draft a whole bundle of documents myself then I need as much time as possible and would prefer not to leave it right to the last minute, like last time, otherwise I clearly wouldn't have any chance of success.

Could you answer my questions in the last several posts ?

[R0b]

I'm not sure what other questions you are asking me to answer?

I am sorry if you feel that I am coming across as victim blaming but I'm not, and I do appreciate your issues but as I have pointed out before, the rules apply to everyone and there is no special treatment. Of course where someone is suffering from ill-health then accommodations can be considered but it remains at the court's discretion. You have to remember your interests are not the only interests at stake, the other side's interest also need to be balanced. The court expects sufficient detailed evidence around your conditions to be able to attach any weight and decide what accommodations can be made. A general letter from your doctor is very unlikely to cut it.

Let me quote below some of the points of a couple of court decisions around using ill-health as an excuse to ask the court for an adjournment, or in your case an extension of time or for reasons why you cannot attend the hearing or being able to submit your defence/counterclaim on time.

In Levy v Ellis-Carr, the judge said this:

Registrars, Masters and district judges are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently "medical" grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the Court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken. The decision whether or not to adjourn remains one for the judge ... But the party who fails to attend either in person or through a representative to assist the judge in making that principled decision cannot complain too loudly if, in the exercise of the discretion, some factor might have been given greater weight.

In my judgment it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. Such evidence should identify the medical attendant and give details of his familiarity with the party's medical condition (detailing all recent consultations), should identify with particularity what the patient's medical condition is and the features of that condition which (in the medical attendant's opinion) prevent participation in the trial process, should provide a reasoned prognosis and should give the court some confidence that what is being expressed is an independent opinion after a proper examination. It is being tendered as expert evidence. The court can then consider what weight to attach to that opinion, and what arrangements might be made (short of an adjournment) to accommodate a party's difficulties. No judge is bound to accept expert evidence: even a proper medical report falls to be considered simply as part of the material as a whole (including the previous conduct of the case).

In J v K (an employment case), the Court of appeal gave some general points around ill-health.

I am hesitant about prescribing any kind of detailed guidance for the Registrar and Judges of the EAT about the exercise of what is inevitably a broad discretion which will fall to be exercised in a wide variety of circumstances. But I am persuaded that there may be some value in making the following few, very general, points:

(1) The starting-point in a case where an applicant claims that they failed to institute their appeal in time because of mental ill-health must be to decide whether the available evidence shows that he or she was indeed suffering from mental ill-health at the time in question. Such a conclusion cannot usually be safely reached simply on their say-so and will require independent support of some kind. That will preferably be in the form of a medical report directly addressing the question; but in a particular case it may be sufficiently established by less direct forms of evidence, e.g. that the applicant was receiving treatment at the appropriate time or medical reports produced for other purposes.

(2) If that question is answered in the applicant's favour the next question is whether the condition in question explains or excuses (possibly in combination with other good reasons) the failure to institute the appeal in time. Mental ill-health is of many different kinds and degrees, and the fact that a person is suffering from a particular condition – say, stress or anxiety – does not necessarily mean that their ability to take and implement the relevant decisions is seriously impaired. The EAT in such cases often takes into account evidence that the applicant was able to take other effective action and decisions during the relevant period. That is in principle entirely acceptable, and was indeed the basis on which the applicant failed in O'Cathail (though it should always be borne in mind that an ability to function effectively in some areas does not necessarily demonstrate an ability to take and implement a decision to appeal). Medical evidence specifically addressing whether the condition in question impaired the applicant's ability to take and implement a decision of the kind in question will of course be helpful, but it is not essential.It is important, so far as possible, to prevent applications for an extension themselves becoming elaborate forensic exercises, and the EAT is well capable of assessing questions of this kind on the basis of the available material.

(3) If the Tribunal finds that the failure to institute the appeal in time was indeed the result (wholly or in substantial part) of the applicant's mental ill-health, justice will usually require the grant of an extension. But there may be particular cases, especially where the delay has been long, where it does not: although applicants suffering from mental ill-health must be given all reasonable accommodations, they are not the only party whose interests have to be considered.

As to your point about making the appeal, I don't recall ever saying that you should appeal and in fact i'm fairly sure I suggested the opposite but ultimately it is your case and the decision rests solely with you. You have chosen to make an application to appeal despite what I've said previously. I would repeat what I also said earlier in that I do not think you have particularly helped yourself by not attending but that was your decision and in doing so, you have made things much more difficult especially when it comes to your appeal application.

[Blueeyes1]

What was the opposite you suggested? To pay claimant?

As previously stated I have no disposable income and in severe financial hardship. Claimant should be paying me money. I am a vulnerable person and may now have to face being terrorised at my new home by debt collectors seizing my furniture and belongings. How is that possibly ok ?

Unfortunately, illness is not a decision. I am sure in the time it has taken you to write your last post, you could have probably answered my questions, which would have been more helpful. If you think the claimants behaviour is acceptable, maybe I should turn up at their home with some of my friends and harass them in the same way then?

[R0b]

I still don't know what questions you say I haven't answered. If you are referring to your questions around evidence and bundles then I already answered that with a link to the CPR, so what else is there to answer?

Mental health is obviously not a decision but you have nevertheless made the decision not to attend on grounds of health. So if you are going to argue that you have been disadvantaged in some way because of your ill-health then you are going to have to provide proper medical evidence and the court will assess that evidence accordingly.

As I have also said before, if you are struggling financially then I recommend you try to contact an organisation that can assist with debts and those who are vulnerable. You can of course also make an application to the court and ask to vary the order such that you pay a nominal amount for the time being. That too would require evidence of your current financial situation.

I don't know what else I can add right now as I feel we are going round in circles, but if you feel my posts are becoming unhelpful then I no longer reply.

[islandgirl]

I have tried to get my head around this thread but it is difficult. I think the appeal is against not being allowed extra time rather than against the decision is that correct?

In terms of the actual defence to the LLs claim I have found the details of the situation from earlier in the thread

The issues around items unsafe and not working should have been addressed during the tenancy. The council could have been involved etc to ensure the LL fixed the items.

The harassment must have been horrible but I doubt it will be of interest to the court. The retaliatory Section 21 would probably have failed if you had wished to stay in the property but I understand why you did not.

The security deposit is an issue - if not protected your claim for 3 x its value should succeed although I do know there is a specific way to claim this through the courts.

If you had a check in inventory and a check out inventory the LL can prove his claims. If not then your version of the state of the accommodation should be accepted and the LLs claims dismissed.

In my view you will not be entitled to a refund of rent. If you can prove you paid for repairs which were the LLs responsibility that section should succeed.

I do not believe damages for stress etc would be awarded though I may be entirely wrong.

The fact that there was no consent from the LLs mortgage lender, no LLs insurance is a problem for the LL and would not be of interest to the court.

At least part of the claim could be successful but it can only be brought to court if your appeal about not being allowed extra time succeeds.

I wonder if it does not, whether it is worth going after the LL for the 3 x deposit anyway - at least that would reduce the amount to pay. This has to be done in a specific way.

I wish you the very best - these are only my personal views. I hope you get the chance to argue your points in a court hearing - I do appreciate how stressful this must be.