Lynnzer - Patient Direct Court Claim

[Amethyst]

Ask the court, or indeed the Claimant, for a copy of the application as, as R0b says, it should have been made on notice. Then you know what you are arguing against. It's likely they have simply claimed an 'admin error' although they should also have given reason why the case should be allowed to proceed.

[Lynnzer]

Just spoke with the court again then.
They are sending me a copy but it seems they are saying they didn't receive something or other in the post that would presumably have given the timescale for them to respond with a payment.
Very dubious. If that's the case then the rules of presumption of delivery should apply as in:
Interpretation Act 1978
Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression ” give ” or ” send ” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

Practice Direction [1985] 1 All ER 889 states that, unless the contrary is proved, First class mail is deemed delivered on the second working day after posting, and Second class the fourth working day after posting. “Working Day” means Monday to Friday not including Bank Holidays.

It makes it seem a difficult thing for them to overcome and given the other late responses to PD's should be seen for what it's worth.
Will copy their correspondence when I get it.

[Lynnzer]

Got a copy from the court today. Seems to have been sent to the court only expecting them to provide a copy to ourself. Don't know if is the way it should be done. I would expect it to be the responsibility of PD to send a copy at the same time as they sent one to the court. Anyone?

They are saying they didn't get the paperwork sent out on 17th August and asking for reinstatement of the case. I also see they are trying to get the case moved to Blackpool again. Will dig out what the August 17th Paperwork was. Ah, that was the Case was the Allocation to the small claims track.
They haven't sent anything to the court in the meantime either.

I'll give it a bit of time to respond in the hope I may get some pointers on how best to progress with an objection.
N244.pdf

Oh, as another little throw in, the Strike Out was for non payment of fees. However I submitted a Strike Out Application prior to that based on numerous things, and to the best of my knowledge it hasn't even been considered.
Surely if it hasn't been considered then it should be before the N244 is considered.
My letter asking for a Strike Out is on file however I had to submit a proper paid for application which I did. The textual content of it remains more or less the same as in the original letter and is as follows:

This application is made for the reasons set out below. I must point out that enough notice was placed in documents to the court on the lack of privity and lack of a clear Statement of Case in the early court submission. It was anticipated that the court would act upon that knowledge as part of the case management considerations, so the late request for this late application is not intentional. The court's own procedure in dealing with previous correspondence has also prolonged the delay.

1. TheStatementof Casedisclosesnoreasonablegroundsforbringingtheclaim
   
   
   1. A sufficiently detailed Statement of Case is paramount to being afforded the opportunity to a fair trial. As the Statement of Case is so devoid of detail of any “things” that the claimant is laying against us we are denied any realistic opportunity of constructing an informed defence. It cannot be fair to expect us to “best guess” our defence on such a lacking Statement of Case, even though we have had to in the meantime. Nothing was submitted with the Statement of Case to substantiate any allegation except for them laying a bare claim for an unverified amount. No contract copy was sent upon which they are presumed to rely. No itemisation of the amount claimed has been shown and could be just an arbitrary amount pulled out of the air with little or no merit. If we, as defendants, were to make a “bare denial” as a defence it would not be looked on favourably in court and it is only right that a “bare unsubstantiated claim” should be afforded the same treatment. The defence already submitted was written “as if the claimant's details were correct”, and not an acknowledgement that they are.
   2. The lack of a copy of a contract submitted with the Statement of Case, allegedly between the claimant and the respondent, is negligent at best but without such copy a defence compiled on an assumption of a contract is inherently not in accord to the interests of justice. Without submitted evidence of that contract as part of the Statement of Case there is no foundation to their claim. Any later copy beyond the time to respond with a defence is an abuse of process as it denied us the immediate right to consider it as part of the defence which had to be completed in a timely manner. In any case, no contract was attached to the Statement of Case and we were hindered by it's non inclusion. The court is asked to consider the example shown in PRACTICE DIRECTION 3A – STRIKING OUT A STATEMENT OF CASE, ie “1.4 The following are examples of cases where the court may conclude that particulars of claim (whether contained in a claim form or filed separately ) fall within rule 3.4(2)(a).
      
      1.4(1) those which set out no facts indicating what the claim is about, for example “Money owed £5000”
      
      The Statement of Case laid against us is significantly the same as that example even though it contains more words. There is still a lack of evidential support for the claim. The sum of money claimed is unexplained as brought out in the paragraph c. below. The claimant is a large multinational company with unlimited access to legal resources so the poor statement of case with no evidence to support it is inexcusable and places an impossible burden on us. The right to a fair trial is compromised to the extent for it to be considered as an abuse of process.
   3. The claimed amount is lacking in detail and has not been itemised. It should necessarily be shown as either a) a penalty, b) liquidated damages, c) unliquidated damages or whatever else the claimant has in mind. There is no explanation as to whether the amount is punitive, restorative, compensatory, contractual or anything else. Which, if any of these categories, the claimant has in mind is important since the value of a claim may well be subject to different defences, each with potentially different monetary values. For example,
   4. an amount claimed as punitive would not be a VATable figure since a compensatory sum, or penalty does not have VAT upon it. If the claim is an amount of an unpaid invoice which includes VAT it is not a true reflection of the amount of loss.
      
      An amount stated to be a penalty may be excessive in regards to the base sum involved. I refer to Beavis v Parkingeye in the Supreme Court to justify this point
      
      The stated figure does not itemise that amount either to show if any interest or other sums have been added. In particular the annual management fee would not be incurred on the contact being ended for whatever reason.
      
      The stated amount doesn't show any potential reductions for a deposit allegedly paid.
      
      There is no realistic defence to a claimed amount which has no explanation. The claimed amount falls in line with the example on the CPR rules in paragraph b. above since it has nothing to support it within the Statement of Case.
   5. In the need to present a defence within the time allowed many points were brought out by us as defendant's upon which the claimant may well now seek to include within any amended Statement of Claim which the court may well consider an option. However the inclusion of new points using arguments based on our own defence points would be grossly unfair. If they were not included in the original Statement of Case they cannot now bring them out without compromising our right to a fair trial, especially since so many of them were not rebutted in the Response to our Defence submission. With the massive legal expertise an International Company has at its disposal they should have made a more comprehensive Statement of Case at the outset.
2. LackofPrivity.The claimant has sent a copy of a contract (appendix c) in response to our “best guess defence” which clearly shows that it is between two named parties which are not on the claim form. Even the address of the defendant is shown to be different.
   1. The contract shows the agreement is made by a company named Patient Direct. The claim is being made by another company named Multimedia International Services Ltd. The claimant's Statement of Case specifically says “This contract is with one of our companies T/A Patient Direct.” In which case Multimedia International Services Ltd is not the correct party to bring the claim.
   2. The Agreement names Norma and June Fashions as the contracted party. The claim is laid against a different legal entity being Norma and June Fashions Limited.If Norma and June Fashions is the correct respondent then the person to lay the claim against would be a proprietor of that company; it not being a Ltd Company. On the other hand, if Norma and June Fashions Ltd was the party to contract with Patient Direct then no contract has been brought to our, or the court's, attention to support that. The contract is shown as between Patient Direct and Norma and June Fashions; not Multimedia Services International Ltd and Norma and June Fashions Ltd as shown on the claim form.
   3. Apart from any lack of privity between the two named parties it can also be seen that the signature of the named person J Robson has been altered to show the inclusion of June before the J Robson, making it June J Robson. This is a material change which gives rise to it making the contract a false document.
      
      ForgeryAct1913,1,(ForthepurposesofthisAct, forgeryisthe makingofafalsedocument inorderthatit maybeusedasgenuine..........”
      
      ForgeryAct1913,1,(2)Adocumentisfalsewithinthe meaningoftheActifthewholeoranymaterialpartthereofpurportsto bemade byoron behalf oronaccountofapersonwhodid not makeit norauthoriseitsmaking..........
   4. The unauthorised addition/amendment to the signature falls as a material change since it affords an identity which may or may not be correct. The signature shown is J Robson, now altered to June J Robson. All other mentions of a name which shows as June Robson were added by the claimant's representative as can be seen on examining the respective handwriting. There is nothing to show authority being granted for the insertion of the additional signature and in fact the wording on the contract itself at the bottom of the page says clearly in bold print that “Anyalterationtothisagreementmustbesignedbybothpartiesasdetailedoverleaf”. There is nothing to show that this has been complied with and that the signatory has indeed authorised that insertion. Since the contract stipulates that ANY alteration must be signed, then it is the case that the claimant had the intention that such alterations if not signed, would void the contract to the advantage of either side drawing advantage from it. The alteration of J Robson makes an unverified assertion that “June J Robson” is the correct name, but it could equally have been Jack J Robson or Jason J Robson. It is materially altered. If June Robson was to be asked if the signature was hers she would be correct in saying NO. If she was asked if she was June J Robson she would be completely truthful in saying NO. Even if she was asked if she had signed it as J Robson and agreed to the insertion/alteration she would still say NO. It would still be unauthorised without a confirmation signature, and could equally be a material change. Either way the expectation that any alteration be signed as required from the contract wording still makes the agreement voidable.
3. No realistic prospect of the claim succeeding.
   
   I submit that the defence filed has within it sufficient grounds to reach a conclusion that even if the case was to go ahead then it would fail. There are numerous uncontested instances of misrepresentation including even the role of the claimant's representative which was shown to be Director Corporate Accounts yet was questioned within the defence as being no more than a self employed commission agent. The questionable and unrefuted representative's role as being no more than a mere commission agent is at the core of the contractual validity. He did say he was a Director of Corporate Finance which is backed up by his business card (copy at appendix d) and as that stands our assertion that he is only (was only) a self employed commission agent is to be taken as confirmed by its non rebuttal. The whole presentation from thereon lacked any integrity.
   
   The mental health of the defendant's signatory to the contract is also of value since she has lack of short term memory, poor cognitive and reasoning ability which is supported by a letter from the NHS consultant which shows that an appointment to attend the Department of Nuclear Medicine for a brain scan had been arranged (appendix b). She even struggles to remember the names of her 2 grandchildren occasionally. If the claimant's representative was unaware of this it stills falls as innocent or unwitting pressure with the correct remedy being the voiding of the contract.
   
   As has already been mentioned, there is the case transcript of the case against the claimant's Australian company which was undertaken in the Federal Court of Australia brought by the Australian Competition and Consumer Commission for vastly similar instances of misrepresentation, bad faith and unconscionable conduct, to name just some of the findings. The company was fined $230,000 for it's behaviour and had to give undertakings to change contractual clauses which still remain in the UK equivalent even though they are as equally disadvantageous to their customers here. The transcript is already in the documents in the case file.
   
   The numerous defence points which have not been rebutted stand as accepted by the claimant and are each of sufficient weight to strike out the case as having no reasonable prospect of success, even if the strike out request on other points fail.
   
   Evidence of non service of the contract's obligations is also now available on the attached DVD. It was, as already mentioned in the defence, on an online link so this is not new evidence, just the same in a new format. The accompanying NHS answer to my FOI request also shows categorically that there is no way that the claimant can, or had, been able to prove that the screens upon which the advertising was supposed to be shown were even switched on. To the contrary, the DVD accompanying this application shows that they were not switched on thus no service of contract was made.
   
   Given the numerous misrepresentations and obfuscation within the claimant's Statement of Case and further submission it is wrong that they cannot even have any legal standing due to a non conforming declaration of truth to their submissions.
   
   
   
   Conclusion
   
   The respondent is struggling with having had to make a defence based on sparse facts presented to it from within the Statement of Claim. The need to comply with the court procedure to lay a defence within 28 days was restrictive as it did not afford time to bring out extremely important points for the defence. As a layperson (the company effectively being only a 1 man band) the points which were necessary to lay out as part of a defence took longer than the 28 days, particularly as answers to Freedom of Information Requests having been placed to support our case, usually take at least 40 days. An answer to a FOI is an absolutely essential part of the defence but it was not available until well after the submission of the defence and way beyond 28 days. It is at appendix d.
   
   The use of video footage also plays an important evidential role but the respondent had no way to copy the video onto a DVD as it was in a format not recognised by the computer programme. It effectively showed it laid on its side. Instead a website link was mentioned that showed it instead, however we have now had the copy made to a DVD in proper format. Similarly it took longer than 28 days to obtain a transcript of the case in the Federal Court of Australia which sets an extremely persuasive precedent as it involves the same company (albeit the Australian incarnation) and laid on the same general arguments.
   
   Also as a layperson the construction of a defence was hindered by lack of legal expertise. Following the submission of the original “best guess” defence there are other points now known which need to be brought out, and existing points which need amendment for clarification.
   
   If the court sees no reason to strike out the case then we respectfully ask that we are permitted to submit another defence based on the new knowledge. If that would appear to be prejudicial to the claimant by reason of it being granted within a tight timescale then the court may find it to be in the interests of justice to move the hearing date.
   
   We also request that if the court finds in our favour that a costs order for making this Application is awarded against the claimant.
   
   I believe that the facts stated in this continuation sheet are true

1. Lynn Robson
   
   Company Secretary, Norma and June Fashions LIMITED
   
   Attachment/appendix's
   1. 1. DVD showing non service of contract screening
   2. Mrs Robson's Mental Health NHS appointment letter
   3. Copy of contract front page showing alteration of signature
   4. photocopy of claimant's representative's business card
   5. NHS FOI answer

[Lynnzer]

Have drafted a proper objection to the N244 request for relief.
Don't want to copy it all again so just download and review.
I would appreciate comments on anything that can provide better wording.
If I hear nothing by end of Sunday it'll be going in the post on Monday. Objection.pdf

[R0b]

Most of us regulars don't tend to linger around on weekends, but i've had a quick scan of your document, i'll try to post some feedback tonight if not tomorrow

[R0b]

Hi Lynnzer,

I've taken a look and although I think it could be improved, I won't go into every detail but some high level pointers.

1. Make sure the grounds refer to claimant and defendant, not first person and do not interchange.

2. I think you definitely need to argue and set out reasons why relief should not be given via the three stage test set out in the Denton case. That's because it is an application for relief and I think your grounds for objection waffle on a bit. The grounds should be sufficiently succinct and the rest should be left for argument in person - unless you are wanting it to be heard on the papers?

3. I've attached a document which correctly sets out the heading template as opposed to your heading on the objection. There is also some guidance notes but I presume most of that you will already know so can disregard it. Presentation is also an aspect courts do look at and the more professional your document looks, judges are likely to take more notice.

There is some wording I've added in there although not necessarily in the order that you might want it, but just some pointers.

4. I also attached the Patel v Smeaton case so you can take that to court if you wish or attach it.

Hope that helps.

[Lynnzer]

Hi Lynnzer,

I've taken a look and although I think it could be improved, I won't go into every detail but some high level pointers.

1. Make sure the grounds refer to claimant and defendant, not first person and do not interchange.

2. I think you definitely need to argue and set out reasons why relief should not be given via the three stage test set out in the Denton case. That's because it is an application for relief and I think your grounds for objection waffle on a bit. The grounds should be sufficiently succinct and the rest should be left for argument in person - unless you are wanting it to be heard on the papers?

3. I've attached a document which correctly sets out the heading template as opposed to your heading on the objection. There is also some guidance notes but I presume most of that you will already know so can disregard it. Presentation is also an aspect courts do look at and the more professional your document looks, judges are likely to take more notice.

There is some wording I've added in there although not necessarily in the order that you might want it, but just some pointers.

4. I also attached the Patel v Smeaton case so you can take that to court if you wish or attach it.

Hope that helps.

Many many thanks Rob. Invaluable assistance.
I think I have cooked their goose big time now as well. I went through all my stuff on file and there's no way they could have NOT received the letter of Allocation from court.
I have added into the Objection the following:

1. The Defendant called the court prior to the Strike Out asking if the claimant had paid the hearing fee. The first call was just prior to the end of the period for that payment and it is possible that mention was made at that time of their request for a re-allocation of the court, however I believe that the date when I was originally told of the Claimant requesting a change of court was made on the 7^th November. It is likely that the Application was submitted prior to that date and I suggest it would have been done in the period prior to the end of time to make the payment for the hearing fee which would be before 4pm on the 29^th October 2018. A reasonable assumption is made on the delivery of such an application. I submit that the Claimant will have completed the Application on or around a period 4 days prior to the court receiving it. If the court had received it on the same day they told the Defendant about it, then that means the application would have been made out on or around the 2^nd of November, having a weekend in the postal period. It will be on record as to when the actual receipt of the application was effected at the court and an adjustment to the periods above to compensate should be made. It may well result in the likely despatch of their application in the period prior to the time-out for the payment of the hearing fee.
2. A further point is raised on the same basis. The Claimant was obviously aware prior to the 2^nd November of the court details otherwise it would have no reason to make an application for a transfer of proceedings. We are unaware of any further correspondence being sent to the Claimant by the court after the Court Allocation location and date was advised in that notification of the 3^rd August 2018. Without any further correspondence it's inconceivable that the Claimant could have been aware of the location of the court. We submit that they had received the Allocation of Court Notification advising them of the latest time for payment of the hearing fee, and are now seeking relief from the correctly imposed sanction. In fact, the Defendant submits that the Statement of Truth on the Claimant's application is untruthful and that this is an attempt to pervert the course of justice by thinking that no-one will be astute enough to bring out the facts in this and the previous paragraph.

[R0b]

To keep things consistent, you should amend the "I" and "we" to the "Defendant". If you want to make an assertion, you could say it in a number of ways:

1. It is the Defendant's contention ...
2. The Defendant contends ...
3. The Defendant submits that ...
4. It is submitted that ...

Also this paragraph below I think should be sitting on a separate paragraph to sum up what has already been said. For example, you could could say something like "For the reasons set out [above / in this objection], it is submitted that on a balance of probabilities, the Claimant more likely than not received the Notice of Allocation and permission for relief from sanctions ought to be refused."

You need to remember not to get too aggressive or make personal attacks on the other side as this is not going to be liked by the judge so the last sentence of that paragraph you may wish to take out.

We submit that they had received the Allocation of Court Notification advising them of the latest time for payment of the hearing fee, and are now seeking relief from the correctly imposed sanction. In fact, the Defendant submits that the Statement of Truth on the Claimant's application is untruthful and that this is an attempt to pervert the course of justice by thinking that no-one will be astute enough to bring out the facts in this and the previous paragraph.

[Lynnzer]

To keep things consistent, you should amend the "I" and "we" to the "Defendant". If you want to make an assertion, you could say it in a number of ways:

1. It is the Defendant's contention ...
2. The Defendant contends ...
3. The Defendant submits that ...
4. It is submitted that ...

Also this paragraph below I think should be sitting on a separate paragraph to sum up what has already been said. For example, you could could say something like "For the reasons set out [above / in this objection], it is submitted that on a balance of probabilities, the Claimant more likely than not received the Notice of Allocation and permission for relief from sanctions ought to be refused."

You need to remember not to get too aggressive or make personal attacks on the other side as this is not going to be liked by the judge so the last sentence of that paragraph you may wish to take out.

Thanks Rob. I picked up on the "I" "We" as soon as I posted it so will change it accordingly.
Will amend the personal attack bit but leaving it to the court to assess the integrity of the Claimant's signatory as appropriate.

I have rewritten and included extras:
Notes of objection. NB this is to further advance my case if the hearing is allowed. I have already sent the Objection itself. Xmas is near and I didn't want the mail to be delayed given the fact that the date of response by PD is 2nd January.

1. The Defendant called the court prior to the Strike Out asking if the claimant had paid the hearing fee. The first call was just prior to the end of the period for that payment and it is possible that mention was made at that time of their request for a re-allocation of the court, however the Defendant believes that the date when it was originally told of the Claimant requesting a change of court was made on the 7^th November. It is likely that the Application was submitted prior to that date and it is suggested that would have been done in the period prior to the end of time to make the payment for the hearing fee which would be before 4pm on the 29^th October 2018.
2. A reasonable assumption is made on the delivery of such an application. The Defendant submits that the Claimant will have completed the Application on or around a period 4 days prior to the court receiving it. If the court had received it on the same day they told the Defendant about it, then that means the application would have been made out on or around the 2^nd of November, there being a weekend in the postal period. It will be on record as to when the actual receipt of the application was effected at the court and an adjustment to the periods above to compensate should be made. It may well result in the likely posting of their application in the period prior to the Strike-Out for the payment of the hearing fee.
3. The Defendant raises a further point on the same basis. The Claimant was obviously aware prior to the 2^nd November of the court details otherwise it would have no reason to make an application for a transfer of proceedings. We are unaware of any further correspondence being sent to the Claimant by the court after the Court Allocation location and date was advised in that notification of the 3^rd August 2018. Without any further correspondence it's inconceivable that the Claimant could have been aware of the location of the court. We submit that they had received the Allocation of Court Notification advising them of the latest time for payment of the hearing fee, and are now seeking relief from the correctly imposed sanction having failed to make payment. The Defendant submits that the Statement of Truth on the Claimant's application is untruthful and that this may be considered as an attempt to gain an unlawful advantage in the case.
4. The notification of Strike Out was dated 13^th November. This date was after the court advised the Defendant that the Claimant had requested a change of court. The Defendant submits that there is no consistency of the facts presented to the court in regard to non receipt of the Notice of Allocation. The Claimant cannot realistically present non service to the court as it would have had to have been effected to put the Claimant on notice of the location of the court which was the subject of the request to relocate the case.
5. The Defendant lays out a timescale of events from the original submission of claim which clearly shows that the non service of the letter is a totally inadequate explanation. The court is invited to consider if the apparently untruthful Statement of Truth is an attempt to prevent the just course of justice. The events below are the only notifications that the court will have made to the Claimant, or if there are others which the Defendant is unaware of they will be on the case files.
   1. CLAIM FORM dated 30^th May 2018
   2. GENERAL FORM OF JUDGEMENT OR ORDER dated 26^th July 2018. Compliance to complete DQ or face Strike Out.
   3. NOTICE OF ALLOCATION TO THE SMALL CLAIMS TRACK (HEARING) DATED 17^th August 2018.
   4. Claimants request to court to re-allocate to Blackpool. This request was advised to the Defendant by the court on the 7^th November 2018.
   5. Defendant's bundle posted on 9^th November 2018 and received by the Claimant on November 12^th. This had all the details of court allocation within the bundle.
   6. GENERAL FORM OF ORDER OR JUDGEMENT dated 13^th November 2018 (Strike Out).
6. The above documents are the only ones that have been served on the Claimant from the court up until the Strike Out to the best of the Defendant's knowledge. The Defendant claims that there is no merit in the Statement of the Truth submitted by the Claimant as without the receipt of the Notice of Allocation to the Small Claims Track they would have no reason to request the case to be moved to Blackpool. They would not know that it had been allocated to Middlesbrough.
7. The court is invited to further sanction the Claimant for it's conduct which the Defendant submits as being a matter of potential fraud. The implications of submitting a Statement of Truth knowingly in order to seemingly pervert the course of justice is a matter of great concern. The Defendant reminds the court of the basis of the aforementioned submission. Such assessment should be made on the balance of probability and the Defendant submits that the Claimant is incapable of explanation to remedy the perception of an untruthful declaration.

[Lynnzer]

I called the court on Friday and they tell me that PD have sent in the Application for Relief as instructed. They got it on the 19^th December.

They also told me it might well be 6 weeks for the application to be considered due to the huge backlog of things at court. No doubt too many parking ticket claims going through the process......


So, with that in mind I did some more digging around. I spoke with the Post Office customer services team and they gave me details of the procedure for non delivered mail, as in the case of PD not supposedly getting the letter from court.

Nearly all undelivered mail is due to a limited number of reasons. The prime ones being that the address is not clear, wrong or incomplete thus preventing delivery. A letter from court won't suffer from any of those problems. The next usual non delivery aspect is that the intended recipient has moved. PD certainly hasn't.


So, if a letter is indeed un-deliverable it is sent to a Dead Letter Office where all such mail is inspected by Post Office staff to try to find the recipient's details from the mail inside for onward delivery. If it isn't shown then if the sender's details are within it, it is returned to the sender. It seems to me that PD has a mountain to climb to overcome the implications of the Interpretation Act then another mountain to explain why in the normal Post Office procedure the letter would not, at the very least, have been returned to court.


So, with that new information I have re-written the Objections plea. I have shaken some stuff out that wasn't particularly helpful and added the new things.

Details on the new pdf.
rewritten objections.pdf

[Lynnzer]

Well I got a Court Order for the hearing for the Application for Relief from Sanctions from the court today. They say no more except that a date will be set in due course, so at least it appears that PD will have to come on over to Middlesbrough for that at the very least.
What is really irksome is that the court has completely ignored my request for my earlier Strike Out Application to be considered before the Relief From Sanctions Hearing. It seems that this aspect has been completely ignored, even though it was a paid for application and submitted prior to the strike out made by the court on their own reason for non payment of the hearing fee which had nothing to do with my own application reasons.
I have to think this is wrong in every respect. Without any knowledge of the court's powers I suspect that they have abused their position to the extent that it may well provide a good reason for an appeal against their decision at some future point. However, if the actual case goes to court and PD win, then appealing will become considerably more expensive so it needs to be addressed right now.
How do I stand on this? All the stuff I sent to the court already says clearly that I have an outstanding Strike Out Application yet they choose to ignore it and instead favour a hearing for relief from PD instead. This is a cart before the horse situation.
What redress do I have, or what else can I do to MAKE them listen. When the the hearing from Relief goes ahead can I interrupt and object to the non consideration of the Strike Out application before the relief hearing goes ahead?
I have no idea on procedure beyond the stage I have now found myself in so any assistance would be helpful

[Lynnzer]

rewritten objections.pdf

[Lynnzer]

I was hoping that someone would get around to answering the post in #41...... Anyone.
I have been looking at all the CPR stuff for sanction relief and in particular 3.9 of the Case Management section. It says that an application must be supported by evidence. Is a witness statement alone sufficient to stand as good enough evidence in this case. It's more than likely that the only "witness" must be someone who works for the company who cannot clearly be impartial.
On that very subject, I have not received anything at all from PD in respect of their application. That includes the witness statement copy.
If I don't get it before the hearing can I ask for it to be disallowed as I will have had no time to consider it, and perhaps call for the "witness" to be present for cross examination.

As I have put my full objections to the court, I take it I will need to do not a lot more than read out my objections and answer questions put to me by the Judge. Will my objections need to be sent to PD before the hearing. I don't want to fall foul of that procedure.

Any other articles/judgements along the lines of non receipt of court documents would be welcome if anyone knows of any. I cannot get a copy of the unreported Patel v Smeaton 2000 case so if anyone has one I'd appreciate it.

[R0b]

Sorry Lynnzer, I have pretty much forgotten about your case as it's been some time.

Re post #41, have you contacted the court to find out what is going on with that application? If the application hasn't been processed then I should think that you ought to be entitled to your monies back but you might need to make a complaint to the court manager, or worst case a claim against HM Courts and Tribunals (The claimant being the MOJ) but that's an extra cost again so I wouldn't think its really worth it, but its up to you.

A witness statement is generally the minimum required for applications for relief. Even if their only witness is an employee that is still sufficient however impartial you might think that is, they are entitled to rely on any witness they like except where the rules or the court dictates otherwise.

Have you written to them and/or the court to ask for that copy? I would think you need to create a paper trail to show that you've taken steps to try and obtain the witness statement if a court is to consider disallowing the statement itself or adjourning the hearing for other reasons.

Depending on what happens on the day, you might want to expand on your objections and make oral submissions to the court in that respect. Check your PM for the Patel v Smeaton case.

[Lynnzer]

A witness statement is generally the minimum required for applications for relief. Even if their only witness is an employee that is still sufficient however impartial you might think that is, they are entitled to rely on any witness they like except where the rules or the court dictates otherwise.

Have you written to them and/or the court to ask for that copy? I would think you need to create a paper trail to show that you've taken steps to try and obtain the witness statement if a court is to consider disallowing the statement itself or adjourning the hearing for other reasons.

Thanks Rob BUT would I be correct in saying that since I haven't been served a copy of the witness statement the court can refuse to consider it? I mean, if they are relying on testimony from an employee, and who else could it be, then surely I have a right to advance sight so it can be rebutted.

I'm of the thought that the period that the "lost" court document relates to would have been over the company's August holiday period so someone who says they didn't receive the post may well have been on holiday during that time anyway.