First time going to court and I’m unsure on how to proceed

[Toteme]

I am the claimant in the case, it relates to returning part of an online order to a clothing company. They provided a free/prepaid returns service, their courier collected it from me but the returned parcel never got delivered to the company - tracking shows this. The company refuses to accept the proof of postage their courier provided and claims they don't have to refund for returns they don't receive.

Timeline so far:
I spent a few months contacting the company and getting nowhere. Then I sent an LBA, company responded to the LBA saying the claim will be fully defended and their final response was they don't have to refund returns they don't receive.

I filed a claim through MCOL. Company turned down mediation at time of sending their completed questionnaire.

We were both instructed to submit first witness statements by late August. Days later company appointed a solicitor who contacted me saying they will represent the defendant/company. The solicitors included a N244 form with their witness statement asking for the claim to be struck out, they claim I made it without merit and I am abusing the court process.

I had already received a letter from the court giving me a trial/hearing date and telling me when I need to pay the fee by. They said this was the last piece of communication I received from them.

Yesterday I returned home from a weeks holiday and was surprised to find another letter from the court saying the defendants N244 hearing will be quite soon. It is an attended hearing.

Unfortunately I can't attend the N244 hearing, I can attend the actual trial, how do I give the court correct notice that I can't attend?

Will my witness statement/evidence be seen by the judge at the N244 hearing? Will it be taken into account? In my opinion the claim verges being a waste of the courts time but the defendant/company and their solicitor are being dishonest and impossible to deal with.

For further context; I was emailed a digital proof of postage when the company's courier collected the return from me and the company refuses to accept it, claiming it has to be a paper receipt. In their witness statement their solicitor has also claimed this and provided a paper receipt (importantly from a drop off) as an example to apparently prove it, this is their basis for the N244. However, their own courier has provided documentation to say it is a valid proof of postage, they don't offer paper receipts for collections, the return is lost and the company hold the contract with them and must be the one to raise a claim. The courier has no record of the company or solicitor contacting them in regards to the return shipment. I included all of this in my witness statement and the company were sent it long before I filed the MCOL. I am dumbfounded, as is the courier, that I've had to take it this far and their dishonesty.

[Pezza54]

You need to email the court and tell them you can't make the hearing on the set date and give your reason why you are unavailable. Say you available on another day and provide the dates you can't make.
Are you able to print the email containing the digital receipt.
Check the supplier's terms and conditions regarding returns and see if courier's digital receipts are unacceptable.
Digital receipts have been around for years.
The supplier employed the courier company and should move with the times as the courier has done.

[Pezza54]

Make sure you get an automated response to your email

[Toteme]

Thank you for the reply.

Their terms and conditions say - The refund will be paid as soon as possible and, in all cases, within 14 days from the date on which you notified us of your intention to cancel. Notwithstanding this, we may withhold the reimbursement until we have received the items back, or until you have supplied sufficient evidence of having sent back the items, whichever is the earlier.

So no mention of proof of postage. I have the digital proof of postage, messages from their courier saying it is valid, the online tracking from the couriers website. And the company's own website has a return tracker and the status is 'return with courier' and the stats bar is halfway completed. Is this not sufficient evidence?

I will go ahead and email the court, do I need to also notify the defendant? On the letter notifying me of the N244 hearing there is an email address for a local court, do I use this email? Or the general small claims email address?

Sorry for the all the questions, I don't want to make mistakes.

[R0b]

Based on what you have described, I am somewhat baffled that a legal representative would think about making a strike out application, let alone at such a late stage of proceedings.

What is the date of the hearing? If you cannot make the hearing, to tell them you are unable to make it and give reason why, ask for the matter to be put in front of a judge and see if he/she will agree to vacating the hearing for another date you can attend and then provide some dates or, if there are no available dates then ask if the strike out application can be heard first on the same day as the trial hearing. It would also be sensible to copy in the other side so they are aware you are making this request.

The email should be sent to the court that is hearing the application, I am assuming the order states the name of the court? If you tell us the name we can find out the correct email to send. You need to make sure your email subject line is headed as urgent and reference the hearing date and claim number. Something like the below might suffice.

Urgent: Request to vacate hearing on XX/XX/2023 at [Insert Time of Hearing]: Claimant Name v Defendant Name (Claim No. XXXX)

In the meantime, has the solicitor explained why your claim has no merit or is an abuse of process? Does it have anything to do with your particulars of claim being poorly drafted or are they really suggesting that you have no actual valid claim for some other reason?

Whatever the case, if you cannot attend the hearing and the court does not vacate the hearing, then you really need to do a witness statement opposing the strike out. You need to model your response based on the witness statement provided by the defendant and counter their reasons why the claim should not be heard. I suspect that witness statement should be very similar to your trial statement using the same evidence such as courier receipt, they offered a free returns service which you took up, the contract with the courier is between the defendant and the courier not yourself, why use a courier that doesn't provide paper receipts if they are insisting on paper receipts, even their terms and conditions don't menitoned the requirement of retaining a paper receipt etc.

Also, I would suggest you save a copy of their terms and conditions as soon as possible showing there to be nothing to state that a paper receipt is required. You can use the wayback machine (https://archive.org/web/) to save pages as they stand at that particular point in time as I wouldn't be surprised if the defendant decides to update their terms and conditions after the fact. If that should happen, then you can argue at a later date those terms had been amended and the defendant acted dishonestly.

[Pezza54]

Email the local court, where the hearing is due to be held. Out of courtesy you could send the defendant a copy of your email
Did you provide evidence that the courier picked up your parcel with your witness statement?
If you sent in your witness statement to the court by email did you get an automated reply?

[atticus]

Court rules are clear that you MUST provide the other party copies of your communications to the court.

[Toteme]

The N244 hearing is 6th October.

I am also baffled. Well, they haven’t used these exact words but they are implying I provided a fake proof of postage in an attempt to defraud the defendant. The word they used is the digital proof of postage is ‘illegitimate’ and the paper is the ‘legitimate’ proof of postage. They claim as I haven’t provided a legitimate proof of postage my case is without merit and this is their reason for the N244. This is why I’m anxious that my witness statement is read by the judge.

Yes, my witness statement would be the same. The solicitors response is the same as the company’s response. I’ve already downloaded their terms and conditions and included this in my original witness statement. Along with the receipt, screenshot of the couriers online tracking, statements from the courier and screenshots from the company’s website acknowledging the return was in transit/with the courier.

I will ask them to change the date but should I resend (by special delivery) my witness statement in response to the N244? Would I need to change the case number/heading?


The original witness statement was sent by post to the court, this is what was requested on the letter I received from the court.

The email on the N244 hearing notice is hearings.stoke.countrycourt@justice.gov.uk but the court is Telford.

[R0b]

Very odd. Alleging fraud is a very serious allegation to be making and the court's will be taking that allegation very seriously. If they are going to allege fraud, then they need to be providing some pretty concrete evidence to back that up. Simply claiming that they believe the proof of postage is fake without actually providing evidence to back that up is nonsense and I would expect the judge to say the same and toss it out within 10 minutes.

Think about it, they are effectively claiming that the courier - that they chose to contract with to provide services on their behalf - is also in on the fraudulent act, despite the courier accepting that they took receipt of the package and confirming it was delivered and have the electronic proof of postage to back that up. Something definitely doesn't add up.

So long as you structure your witness statement in a logical and methodical way, I think you have good chances of winning, and I would also suggest you consider at the end of your witness statement to invite the court to exercise its own discretion under the Civil Procedure Rules to grant you summary judgment to avoid wasting the court's time, on the basis the defence mirrors the strike out application and if the judge finds in your favour, they're unlikely to have any successful at trial.

Get your skates on over the weekend to get that drafted and feel free to post up a version if you want any feedback, just make sure to redact any personal information, court case numbers etc. and if you're using word, don't use the black background filter because people and remove the filter and your personal information will be there to see!

Also separate point, given that it's Friday today, it may be sensible to send this first thing 9am on Monday morning, and I say that because if you send it over the weekend there may be other emails going into that inbox also which will push your urgent email further down the list. Sending it on Monday means it's top of the court's inbox to pick up, but that's just my opinion.

[Toteme]

It was a legal advisor from the company who first responded to the LBA and MCOL and they, in my opinion, did quite aggressively say I was committing fraud and said they would be contacting the ‘local authorities’ if I didn’t discontinue the claim. Then it was passed to their solicitor, so I’m not sure if the legal advisor put their foot in it and left the solicitor no choice?

When I used their returns portal I was able to choose from several couriers another one they offered is Inpost, who only provide digital proof of postage. Is the company happy to accept the digital receipt from one courier but not the other? Or would Inpost also be considered fraud? It truly is baffling.

I think my witness statement is quite clearly written. I explain that I placed an online order with the defendant/company and 2 days after it arrived I requested to return part of the order. I did this through their returns portal and they provided a free returns service and I did not pay the courier. After 6 weeks had passed I contacted the company, they requested the proof of postage and refused to accept the digital receipt, since then things went a bit south. I included all the tracking results, their terms and conditions and then I have screenshots of all my communication/Whatsapp chats with the company (they don't have a customer service phone number), plus the written statements from the courier.
I will add on a bit to request the summary judgement, is it as simple as you’ve written it here? And put it above the statement of truth?

Am I right in thinking the I should send the witness statement directly to Telford court, where the hearing is taking place? They requested the original one was sent to Stoke On Trent but then the case got transferred to Telford.

I will email the court on Monday as suggested my husband will post the witness statement on his way to work and I'll include the tracking number for it in my email. I will request to change the N244 hearing date if possible. I have an NHS/hospital appointment in Cheshire on the same morning the N244 hearing is due to take place, it’s taken along time to get the appointment so it is a legitimate reason. We live on the Shropshire/Cheshire border so I’m not sure why the case got sent to Stoke and Telford.

Sorry again for all the questions, I did a quick Google around the N244 hearing last night and became quite anxious. I would have always contacted the court out of courtesy but wouldn’t have thought to resend the witness statement, so thanks everyone for all your help.

[R0b]

I've just checked the email address for Telford and hearings.stoke.countycourt@justice.gov.uk is the correct address.

You can find information on Telford County Court here using the Court Finder site on .gov

Telford County Court and Family Court - Find a Court or Tribunal - GOV.UK (find-court-tribunal.service.gov.uk)

[Toteme]

Thank you. Witness statement to Stoke and email were both sent this morning.

I'm afraid it was too large to email as a pdf but I have offered to send over multiple emails if necessary.
My written part was 6 pages when double spaced. It is 22 pages altogether. I've included the order confirmation email, the return acceptance email that has the shipping label attached to it, proof of postage, online tracking results and then all the communication between myself the company and the courier. Thought it was best to keep it all to a readable size.

I had noticed that when I was communicating with the company they did on several occasions say they don't have to refund returns they don't receive but in their defence they have included a transcript where these statements have been taken out. I'm unsure whether it was the company or solicitor but it doesn't make coherent sense because otherwise it looks like I'm replying to myself. I have included screenshots, so if anything proves their dishonesty.

[MarkoLima]

Regarding the N244 hearing and your inability to attend, it's crucial to contact the court as soon as possible to inform them that you cannot attend the hearing. You should check the letter you received for contact information or look for any alternative ways to notify the court. The court may then consider your situation and make arrangements accordingly.

[MarkoLima]

Thank you. Witness statement to Stoke and email were both sent this morning.

I'm afraid it was too large to email as a pdf but I have offered to send over multiple emails if necessary.
My written part was 6 pages when double spaced. It is 22 pages altogether. I've included the order confirmation email, the return acceptance email that has the shipping label attached to it, proof of postage, online tracking results and then all the communication between myself the company and the courier. Thought it was best to keep it all to a readable size.

I had noticed that when I was communicating with the company they did on several occasions say they don't have to refund returns they don't receive but in their defence they have included a transcript where these statements have been taken out. I'm unsure whether it was the company or solicitor but it doesn't make coherent sense because otherwise it looks like I'm replying to myself. I have included screenshots, so if anything proves their dishonesty.

A 22-page document may seem lengthy, but given the complexity of your situation and the need to provide a clear picture of the events, it's understandable. Including the order confirmation email, return acceptance email, proof of postage, online tracking results, and communication records is essential to support your claim effectively.

Regarding the company's contradictory statements, it's good that you've included both their initial claims and the transcript where they've removed those statements. This can demonstrate their inconsistency and possibly support your argument of dishonesty.

Sending your witness statement and evidence via email in smaller parts if necessary is a practical approach, and it shows your willingness to cooperate and ensure all relevant information is available to the court.

Also this article can be helpful to you. Just chek this out here: https://floridaindependent.com/when-...-report-harms/

Remember to keep copies of all documents and communications related to your case for your records. It's essential to stay organized throughout the legal process.

I hope your efforts lead to a fair resolution in your case. If you have any further questions or concerns, it might be a good idea to consult with a legal professional for guidance specific to your situation.

[atticus]

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