How to defend a claim being reinstated

[peeta]

Hi,

Hope every one are safe and well and I would greatly appreciate if somebody could give me guidance/advice to me on the below issue.

Background:

1) Claimant made a ridiculous money claim for rent, even for period after he has taken possession.
2) I made a counter claim for failing to protect my deposit.
3) he makes series of errors resulting in hearing being postponed at couple of times and now in small claims track.
4) he fails to pay fee and claim is stuck out, but court also vacates my counterclaim incorrectly.
5) I contact court to get it reinstated.
6) court orders that I am part20 claimant and asks me to file a join bundle and hearing date set for March 2022.
7) Now, it seems claimant has reinstated claim via N244 to set aside order in 4, but the hearing is for Feb 2022.

so my questions are,
a) with his N244 in 7) he has submitted a witness statement, do I need to respond to that?
b) there are lot of blatant lies in the witness statement, while the court has asked me not file anything, how best can I bring those points in front of the Judge?

Thanks in advance.

[echat11]

Hi Peeta

You filed a counter-claim, but did you also file a Defence at the time?

If he has submitted a Witness Statement, I think you should also file a Witness Statement.

How and why has the court told you not to file anything?

The Hearing dates need to be aligned, it's all a bit of a 'pickle'.

des8

[peeta]

Hi des8 ,

Thanks for the reply..

When I filed my counterclaim, yes I did submit a defence as well, but that was long ago when he took a posssession order.

Since then, the same case had been moved to small claims track (nothing to possess as I had vacated).

Now, court only have sent me a copy of his N244 to set aside the struck out order. any idea how I should respond to that pls?
I also contacted the court, who said, I should seek legal advice. This is my first ever case, so I am unaware of court procedure, only thing I know is I have solid arguments with evidences, but not sure how to bring them to the attention of the judge.

the hearing to reinstate the claim is just weeks away, so appreciate your earliest response.

[des8]

I wonder if it is worth opposing the set aside application.

On what grounds would you be requesting the application is denied?
Is your defence so strong that a judge would agree his claim is without merit?

In small claims judges tend to give applicants who are litigants in person the benefit of the doubt and allow them to argue their case even if they have breached procedural rules

[peeta]

Hi des8 and echat11 ,

Thanks for your replies.

My grounds for denying are as follows (the ones I could think of)

- Claimants ground is invalid: I have proof he complied with part of the court order he claims he never received, the rest which was about trial fee which he did not pay, which led to his claim being struck out (my counterclaim also got vacated which I think is a court error)

- Prejudice: He again tried to mix my counterclaim which currently stands on its own with his claim and further delay it. The heart of his claim is about the date by which I vacated the property, to which I may need to reply on concierge as witness. He tries to re-instate the claim, knowing this as this would delay proceedings.

- Delays : The case has been going on for 3 years and my counterclaim has delayed for years due to litany of errors from the Claimant who had a legal counsel and no fault of my own. It should not be further delayed.


I am no legal expert, so not sure if there are any other grounds that apply to my case. Don't reinstate claim have any time limitation within with they need to revived?

If you can list and link, all possible grounds to deny this application, I would be thankful, so that I can select the ones that apply to me.

I am doing all this on my own (can't afford paid legal advice) and if he believes in his claim, he can file a fresh one without affecting my counterclaim - This is my closing argument.

Pls also advice, in this case I can file the above as a witness statement to court even though there are no court orders asking for it.

[peeta]

anybody got some update on the above pls? asking because my hearing is closer..

[des8]

As we don't know what the case is or the grounds for his application for set aside, I don't see how we can comment, except as in post 4

[peeta]

Hi des8 ,

Claimant' grounds are basically the he never received the court order asking him to pay and therefore he did not pay.

Bit courts, sent me a copy of that order he claims he never received and he himself exchanged emails with me suggesting he in fact received the order, he claims he did not.

Also, I have given plenty of information on post # 1 and post # 5. Is this not enough?

Even if you cannot answer this in the context of this specific case still, could you at least answer generally the following please?

- How normally you file your defence when a claimant tries to reinstate an already struck out claim?
- What are the general grounds, time limit etc. so that I can pick any that may apply to me.

[des8]

To dispute an application for set aside I would write a letter (hard copy and pdf attached to email) to the court explaining why I dispute together with a WS and any relevant documents.
Due to court backlog best get your pleadings in asap

[peeta]

thanks des8, should I also serve the same with the claimant?

also you suggest email the court AND send a hard copy?

also what are the other common rules, is there any time limit for stuck out claims pls?

[des8]

thanks des8, should I also serve the same with the claimant? Yes

also you suggest email the court AND send a hard copy? Yes ...belt and braces!

also what are the other common rules, is there any time limit for stuck out claims pls?

time limit; as soon as possible. CPR3 sets out the procedure rules


responses in red

[peeta]

thanks Des-8 ,

I went through the CPR 3, especially CPR3.7, but it only says what court and claimant must do and what happens which I know already anyway that claim is stuck out if fee is not paid.

but it does not set out any rules for the criteria that must be met by the claimant for him to be able to reinstate a stuck out claim.

also from your experience/knowledge what are the common ground for such application to be dismissed pls?

[des8]

CPR3.4 states the court's powers to strike out. and if the claimant wants it reinstated
There are no set rules for applying for reinstatement... just have to make an application

From post 1 I assume the only reason was non payment of fees.
There are other reasons, but it appears they were not considered by the court.

Claimant is now applying to reinstate the claim.

If you want to dispute this you will need to convince court that some of the other listed reasons should be taken into account.
These other reasons are listed at CPR 3.4, and see also Practice Direction 3A (there is a link at right of page CPR 3)

Main reason for strike out, other than not paying fees, seems to be having a hopeless case.
However judges like to give LIPs every opportunity to have their day in court, because there is a right to having a fair hearing (perhaps to stop litigants claiming not to have had a fair hearing)

Found this website which may help you understand the hurdles: https://hallellis.co.uk/strike-out-applications/