**won** Hello, and woe! - Court Claim for 'dangerous' DIY...

[jaguarsuk]

Okay, so you don't need to say what was in the report as that's getting into the territory of defending the claim, which you don't need to do as he's bringing the claim incorrectly against you.

And regards Limitations Act, section 5 covers contract and if the court decided that actually you are the correct defendant section 2 covers tort.

On or around 20^th April 2007 I was employed by Mrs. Smith, my mother, to carry out electrical testing on 10 The Street, Anytown.

I provided a Periodic Inspection Report on the fixed electrical wiring and switch gear within the dwelling, specifically excluding the Garage and Outbuildings with a recommendation of the next test in 2012 to Mrs. Smith, who is now sadly deceased.

My parents subsequently sold 10 The Street, Anytown to Mr. CLAIMANT and I believe that Periodic Inspection Report may have been presented to him during the sale then later retained by him on completion of the sale in 2008.

Any alleged loss to the Claimant has arisen out of that contract between them for the sale and not from me, a person with no financial interest or agency in the sale of the property.

I had no contract with Mr. CLAIMANT.

Furthermore, even if there were such a contract, which is explicitly denied, I believe that the claim would be statute-barred by virtue of the Limitation Act 1980 section 2 and/or 5.

The claim has not been brought against the correct Defendant and in any event is Statute Barred, for those reasons the Claimant has no real prospect of succeeding on the claim.

There is no other compelling reason why the case or issue should be disposed of at a trial.

Pursuant to CPR 24.2 I respectfully request that the claim be dismissed and costs of this application be paid by the Claimant to the Defendant.

[swiss_toni]

Cheers Jaguar - I was a bit concerned about giving too much away, but didn't really know where to draw the line.

I didn't go to the CAB today as I suspect they could not add very much at this stage.

Just to be clear I send this to the court and the *court* will send whatever needs to be sent to the claimant, I don't need to send copies of anything direct?

Also, will the claimant be excused from sending me personally the evidence already requested between learning that I have applied for strikeout and the decision on strikeout?

I have this funny feeling he hasn't really thought this through, as in, having to show me upfront what he thinks is supporting evidence - and the 'smoking gun' emails he lists in the particulars possibly contain some quite embarassing bits, maybe lines from the other electrician like 'don't worry about the 3k, we'll even include the kitchen job in that, LOL, I guarantee you'll win in court its easy m8' or something similar.

[swiss_toni]

Phoned up CCBC to try and pay N244 fee by debit card...

Was subjected to what I can only describe as a rant when I described that what I wanted to do was pay my fee for the N244 form.

Guy on phone told me the ONLY thing I could do was pay up [e.g. the claim amount] or file defence. Kept explaining that I was NOT asking to 'set a judgement aside', as he kept going on and on that there was 'no judgement yet sir', 'there is no court, it has not yet gone to court, sir' but that I was asking in the N244 for a striking out order. Every time I spoke he just persisted on talking over me, between asking 'who told you to do this?' which I declined to answer. I kept explaining that I was well aware they could not offer legal advice and nor was I asking for any, I just wanted a facility to pay court fees by card (as is advertised under the CCBC webpage).

I assume this is the usual good old 'computer says no' call centre operative getting above their station - tbf probably subjected to hourly rants re. 'I dont owe this money and I aint payin'... Probably just like speeding tickets the idea that someone might want to do anything other than pony up the money from being scared might come as a bit of a shock (albeit the government aren't the beneficiary).

If this advice had come from someone connected with the claimant etc... I would have immediately laughed it off, but it has made me think before posting my N244 this morning. Is the call centres advice that I 'cannot' do this strikeout bobbins and I should carry on? I've since read a few more threads on here and it does sound like some of the CCBCs conduct is dire to say the least e.g. the faulty induction cooker thread.

Then...

An hour letter I have a letter from claimant stating that re. my request for evidence 'as you can understand the records are held digitally', and asking for my email address. He also mentions and declines a separate 'without predudice save as to costs' drop hands offer I made, and goes on to make an direct acusation of 'falsifying records', before changing gear to Mr Matey mode and asking if there is 'anything I would like to contribute to the costs, then call me for a chat'. Ha! Email request reasonable? Having read up, it seems I'm perfectly entitled to refuse.

Draft letter;

Dear Mr. Claimant,

I acknowledge receipt of your letter regarding the submission of evidence, on the 5th June 2019.
You will note that I have not supplied the court with my personal email address, as I do not wish to share it with you.

As per 6PD 4.1(1)(a) I request that you continue to communicate in printed form only and find it regretful that you have waited until this late stage to seek alternative means of service.

Please note that this correspondence is not intended to alter the previous 7 day deadline.

Yours Sincerely,

Mr Defendent

[jaguarsuk]

The reaction of CCBC call centre doesn’t surprise me, if you file any application then it will be moved to your local court to allow a judge to review the application, then set directions regarding it. I know they can’t give legal advice, but you’d think they would be trained on something as procedurally simple as that.

You don’t have to file a Defence, but in case somehow the application fails I think we should file a defence first and then file an application to strike the claim out. That way if it fails the Defence stands as filed and the Claimant can’t get a summary judgement procedurally.

If you haven’t acknowledged service do so, we’ll have until 30th June (based on 28 May on claim form) to file a defence and then you can file the application to strike out at the same time.

Did you send him a CPR 31.14 Request for the copy of documents?

[swiss_toni]

The reaction of CCBC call centre doesn’t surprise me, if you file any application then it will be moved to your local court to allow a judge to review the application, then set directions regarding it. I know they can’t give legal advice, but you’d think they would be trained on something as procedurally simple as that.

Fair enough, the guy was REALLY ranting, but I did keep it polite, then again he was so patronising as well, just kept repeaing 'you must understand, this is how the small claims court works' and similar. However, I'm used to these types from my other job and it's usually because they either have few opportunities to have (or, feel as if they have) power over someone and/or because actually having to do the job properly is too much like hard work!

You don’t have to file a Defence, but in case somehow the application fails I think we should file a defence first and then file an application to strike the claim out. That way if it fails the Defence stands as filed and the Claimant can’t get a summary judgement procedurally.

I did wonder that, if the application fails I would have to submit a defence anyway. I imagine the defence is simpler to set out than the witness statement so if the strikeout wins it still saves some time, plus not having to prepare for court, and be thinking about court for the next 6 months!

If you haven’t acknowledged service do so, we’ll have until 30th June (based on 28 May on claim form) to file a defence and then you can file the application to strike out at the same time.

Already done - 1630 on the 1st July is the deadline

Did you send him a CPR 31.14 Request for the copy of documents?

Yes, used your/this sites template & sent with proof of posting 1st class back on the 30th May.

So as above he replied today asking to use email.

I assume it's not at all unreasonable to send the reply above re. not giving out my email?

[jaguarsuk]

That letter says you agree to pay his reasonable costs of copying the documents, so he needs to get on with supplying them to the address agreed for service on the acknowledgment of service, which he will note is not an email one!

[swiss_toni]

It's in the post. Now, for 3 nights of 12 hour long shift fun

[swiss_toni]

VERY draft defence...

In the Northampton County Court (CCBC) Between Mr. Claimant and Mr. Defendent

DEFENCE.

1. The Defendant received claim ref. 0898606060 from the Northampton CCBC (Moneyclaim) by post on the 29^th May 2019.

2. Each and every allegation in the Claimants statement of case is denied unless specifically admitted in this Defence.

3. This claim appears to be for a sum of money the defendant feels is owed to them, despite there being at no time any relationship or contract between the claimant and the defendant, and no breakdown as to how these costs arrived. Nor is there any evidence of genuine attempt to mitigate losses other than an outrageous request to the defendant, who until telephoned by the claimant in April 2019 has never knowingly met or spoken to the claimant or any agent of the claimant, to attend the claimant’s property and carry out unpaid work.

4. The Claimant’s Particulars of Claim are unable to state when any contract was entered into, nor provide any evidence of such.

5. It is denied that the Defendant has ever entered into any contract with the defendant for any goods or services, whether directly or by inference, at any time. The defendant is a 3^rd party to an unrelated transaction involving the sale of property in 2007. Any alleged loss to the Claimant has arisen out of that contract between the Claimant and the Vendor for the sale of the property, and not from me, a person with no financial interest or agency in the sale of the property.

6. The Defendant contends the sum claimed is in any event statute barred by virtue of Limitation Act 1980 section 2 and/or section 5.

7. In any event, the Claimants statement of case fails to give adequate information to enable the defendant to properly assess his position with regards the claim. The evidence provided is sparse and consists of a collection of photographs and unfounded / hearsay allegations from both the claimant and a financially interested party to the claimant.**

**not recieved yet but I would bet my Brompton that the 'evidence' will be a load of old tut. I have literally no idea what he is going to produce to back up statements such as 'falsifying documents' etc...

8. Under Civil Procedure Rule 16.5 (4) Where the claim includes a money claim, a defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation. Therefore, it is expected that the Claimant be required to prove the allegation that the money is owed as claimed.**

** is this statement only for 'financial' type claims or relevant for literally any claimant asking for money?

9. On the 30^th May 2019, the Defendant sent a request for inspection of documents mentioned in the claimant’s statement of case under Civil Procedure Rule 31.14 to the service address of the defendant. I requested the Claimant provide copies of the evidence referenced in the particulars of claim.

10. The claimant responded by letter, stating that the evidence was ‘in digital form’ and requesting the defendants email address, received by the defendant on the 5^th May 2019. The defendant replied asking that the original request of service by letter to the defendants address continued.

*** More to come ***

Am I right in thinking that certain things, e.g. the Electrical Safety First guidance documents (which are a cracking read by the way, but in all seriousness will be very helpful as they are almost pitched somewhere between a lay reader and a professional) can be introduced in the witness statement? I am trying to write as little as possible here and only have to go 'full technical' in the WS if it doesn't get struck out...

Also, even if I apply for strikeout after filing a defence, is it worth me asking for a few hours at LiP rates due to the unreasonableness or would that only have a chance of success at a full hearing?

[swiss_toni]

So... postman has just been and no evidence from Claimant...

I sent the letter on the 30th May using the CPR 31.14 template on here, and in any case the claimant admits receipt by the 3rd at the latest.

In his letter of the 3rd June (recieved 5th June by me) in which he wanted my email address instead of the postal address I had provided from the outset, he states 'of course there is no problem supplying the evidence', although, I wonder if that is truly the case now.

I refused this request to use email in my reply of the same day (5th June), in which I also stated that at no point did I offer my email address via MCOL (you can but it is optional) nor did I offer it on the 31.14 request, so I did not feel that I wanted to share it now - I dread to think what else he would send me, or worse, claim he had sent. I also stated that I was disappointed he waited such a long time to ask for a variation that I was under no obligation to provide, and that I did not see that his request stayed or interrupted the ongoing 7 day deadline...

The 10th came (30th May posting = 7 days with deemed service if I can count correctly?) and went, then today the 11th the postman came and went leaving me only a catalogue I don't want

So, this is the letter I will send tomorrow AM;

***

Dear Mr. Claimaint,

Request for documents mentioned in a statement of case under CPR 31.14

With reference to the above claim, my CPR 31.14 request of the 30th May 2019, your reply of 3rd June 2019 requesting a variation of service, and my refusal of the 5th June 2019, I am writing to inform you I have not received the evidence as requested within the timeframe required.

I am unable to lodge my defence and/or counterclaim at this moment as I do not have sufficient information to fully defend your claim. You did not indicate an issue with the availability of the evidence in the above referenced letter, only that you wished to vary the medium of delivery from that previously agreed, a request reasonably refused without affecting the original deadline.

If you now require more time in which to comply with this request you must tell me in writing and state a date by when you will comply with this request. In addition, I require a statement that you agree to an extension of the time for me to file my defence. Your extension of time must be not less than 14 days from the date when you say you will have complied with my request and you must state the new date for filing my defence.
If you are now unwilling to comply with my request for specific disclosure please inform me and I will consider entering an application to the court to obtain such.

In accordance with CPR 31.15(c) I undertake to be responsible for your reasonable copying costs incurred in complying with this CPR 31.14 request.

I look forward to hearing from you within 7 days.

Yours Sincerely,

Mr Defendant

***

I appreciate there are people on here with tighter deadlines, slightly less of a grasp of procedure (even than me) and less able to write for themselves etc... so I don't mind the fact there aren't too many comments on here, just hoping that if I am about to sent something truly stupid to the claimant or court, someone will jump in and let me know

I know on the other forum I look after if someone else is already helping someone or they seem to have figured things out for themselves, I don't jump in, but then again the stakes are a little less high ;-)

[Amethyst]

An extension can only be a maximum of 28 days after the defence was originally due. CPR 15.5.

Agreement extending the period for filing a defence

15.5

(1) The defendant and the claimant may agree that the period for filing a defence specified in rule 15.4 shall be extended by up to 28 days.

(2) Where the defendant and the claimant agree to extend the period for filing a defence, the defendant must notify the court in writing.

So I'd have a reword, require compliance with cpr 31.14 request within 14 days and extension of 28 days - thereafter, if still no response, you will consider an application to enforce compliance with your request.

Did you post a copy of your CPR 31.14 request? Only documents mentioned in the statement of case can be requested.

Part 18 would be for any 'questions' ( to obtain further information than that in the statement of case)

[swiss_toni]

Did you post a copy of your CPR 31.14 request? Only documents mentioned in the statement of case can be requested.

Yes, I used the template here and was able to cut-n-paste the claimants own list of documents listed as Evidence on the PoC to request - its above somewhere here as Jaguar was impressed with the table - which they needant have been as MCOL did the formatting for the claimant As I say in the claimants letter dated 3rd June he made out he was 'more than happy' to supply all the documents but wanted to use email. I didn't want to use email...

An extension can only be a maximum of 28 days after the defence was originally due. CPR 15.5.
So I'd have a reword, require compliance with cpr 31.14 request within 14 days and extension of 28 days - thereafter, if still no response, you will consider an application to enforce compliance with your request.

Part 18 would be for any 'questions' ( to obtain further information than that in the statement of case)

OK, so I should be more 'telling' at this point rather than 'asking' for an extension?

I'll write that now, and post it here later, but I'll give him the benefit of waiting until tomorrows post and if nothing when I get home from work will post it there and then (good old late night PO!)

thanks again

ST

[jaguarsuk]

I’m not one for Litigation by correspondence, he’s had opportunity to avail you with the documents and it was quite clearly addressed from you, you agreed to pay any costs of copying and he’s just not bothered.

I’d file the defence and then move to strike out the claim.-

[swiss_toni]

I’m not one for Litigation by correspondence, he’s had opportunity to avail you with the documents and it was quite clearly addressed from you, you agreed to pay any costs of copying and he’s just notbothered.
I’d file the defence and then move to strike out the claim.-

Mostly agree, but, I was quite keen for the defence to be over and above bare minimum - if the strikeout fails, isn't the risk that I am left with a defence missing a lot of easy shots e.g Electrican has misrepresented any 'dangers' by testing to current edition, Electrician has piled in with (lets assume given Claimant states '3 fuseboards') 1/3 costs being on the Garage that was never said to be compliant in the first place...

Or, can that sort of thing be just as easily introduced in the WS? (If the evidence ever turns up of course.)

I agree I just want to bang in a strikeout as this nonsense is taking over my life just a little bit too much, so despite the fact I've been adding up the hours spent and would have loved to present that at the end, I would far rather just cut my losses now.

[jaguarsuk]

It’s of course your claim and you should proceed how you feel best, the only reason I give my opinion as I did is that it can get bogged down in something like this that in actuality is a small procedural matter that the court will take little or no notice of.

In in response to any statement in the particulars of claim that he had them tested, your defence response to that point would be you tested to the standards at the time as certified.

If he then later produces an electrician testing to current standards with his Witness Statement then you could point out that flaw.

There’s nothing wrong with sending him another request, but as he’s ignoring this one unless you accept service by a means other than agreed don’t be surprised if he ignores this letter as well.

Either way, you need to start drafting your defence to what is in front of you now, it can be amended if suddenly decides to play ball, but better to have a draft to amend than be starting from scratch.

I understand the impact claims have and it’s why people pay lawyers to do it for them. Unfortunately that’s not a position everyone can be in and you just have to get through.

Short term pain for long term gain.

[swiss_toni]

So what I have done is sent a letter today worded more like Amethyst suggested, e.g. give me a 28 day extension after the 1st July and I'll give you 14 days for the evidence, no other options offered other than him telling me he won't now give me the evidence at all, since as predicted, nothing in the post. If he doesn't reply, fine, I'll carry on with the defence either way.

Believe me I am not standing up for the guy, but I do actually think he is not so much witholding it on purpose as much as being totally unprepared for me not being scared and paying up on day 1, then him realising he actually has to put work in to this over and and above the PoC.

It seems bad enough that courts allow large companies pathetic excuses for missing deadlines or even not turning up for hearings so I'm fully prepared for the fact that the claimants actions probably aren't going to be considered bad behaviour.

I've started a defence in Post #38 so will add to this over the next few days with a view to getting it off ASAP