Case struck out

[pt2537]

Seems to me they will have difficulties overcoming Denton, especially with the delay, 3 months is too long, Regency Rolls v Carnell made clear that 30 days was all together too longer delay under normal circumstances for applying.

The 3-stage test introduced in Denton requires the court to:

• identify and assess the serioussness and significance of the non-compliance.
• consider why the breach occurred.
• evaluate all circumstances of the case so the application is dealt with fairly.

[JBoss]

Thanks PT2357,

Should I quote the case references in my response to the judge (Denton vs White & Regency Rolls vs Carnall) - or is that just me trying to unfairly influence the judge?

Thanks,
JBoss

[pt2537]

Thanks PT2357,

Should I quote the case references in my response to the judge (Denton vs White & Regency Rolls vs Carnall) - or is that just me trying to unfairly influence the judge?

Thanks,
JBoss

Theres no such thing as unfairly trying to influence the judge when youre referring to the law, the case of Denton sets out the test that the Court has to apply, and Regency Rolls deals with delay.

I would refer the Court to the authorities, you wil need to make sure you have copies of the cases available

Regency rolls is here, https://www.bailii.org/ew/cases/EWCA/Civ/2000/379.html its paragraph 45 thats relevant

Denton is available on line

[JBoss]

Hi all,

So here's my attempt at a witness statement to give to the court. I haven't had any instructions etc on how to respond to the Relief from Sanctions hearing other than to attend - so I assume I can just give this to the judge on the day? Or should I send it via post beforehand?

Any suggested improvements etc would be greatly appreciated.

Thanks,
JBoss

Statement:
>>>

1. The claimant has applied for relief from sanctions after failing to pay the appropriate court fees on time and I wish to oppose the relief.

1. The failure to pay the fees on time, the 3 months delay in submitting the relief application and the claimant being unprepared for the first relief hearing constitute serious and significant failures to comply with court procedures resulting in the trial date of 15/06/2022 being vacated and an additional 2-year delay to the case.

1. The reason given for the failure to pay the fees on time was that “the cheque had been lost in the post”, however no evidence of the cheque actually being posted has been provided. Similarly, no evidence of any relevant follow-up actions such as, checking whether the cheque had been cashed or notifying the bank that it was lost/stolen, has been provided.

1. No reason has been given for the 3 months delay in applying for relief.

1. The claimant was unprepared for the first relief hearing, wasting court resources and time as well as incurring costs unnecessarily on the defendants.

1. The failures above have caused the defendants to now attend 2 additional hearings related to the claimant’s failure to follow the procedures and directions of the court rather than for the underlying case, resulting in the claimants having to take additional time off work and incur further costs.

1. The delays caused by the claimant’s failure to follow court procedures has/will have resulted in an additional 2-year delay to the proceedings which is wasteful of court resources and time as well as adding further costs and stress for the defendants.
   (The original hearing date was 15/06/2022, a new date is yet to be selected.)

1. The claimant states that the cheque was lost in the post and was not sent “registered/recorded”, however all of the letters we’ve received from the claimant with regard to this case have been “registered/recorded” (08/04/2022, 20/09/2022, 23/08/2023) when there was no requirement to do so. There is no indication as to why the claimant would send letters to the court unrecorded given that they are equally as important. There is no indication that the postage was paid for, it would be reasonable to expect some form of accounting entry for postage on that day.

1. The claimant was notified that the case had been struck out on 27/05/2022, yet the relief application wasn't made until 01/09/2022 - a delay of 3 months, further wasting court resources. No indication has been given as to the cause of this delay. [Regency Rolls vs Carnall] made clear that 30 days was altogether too long a delay under normal circumstances [para45].

1. Conversely, the defendants have complied fully with the court procedures and deadlines and contacted the court regularly to get a date for this relief hearing in order to reduce these unnecessary delays.

1. To be granted relief from sanctions, the court must follow the “Denton criteria” which were derived from the [Denton vs TH White Ltd] case. The criteria to be applied is a 3-stage test:

1. Was the breach significant or serious? Yes. [Denton vs TH White] makes clear that the failure to pay court fees is a serious breach as it is fundamental to the legal process in ensuring that a trial date is set rather than the claim sitting in limbo doing nothing and wasting court resources. The breach has resulted in delaying the case for almost 2 years.

1. Are there any plausible reasons why the breach occurred? No. The claimant claims the fees were lost in the post but has provided no evidence that it was actually sent, no evidence of the cheque being notified as lost/stolen and no evidence that the status of the cheque was ever confirmed.

1. The court must consider all of the circumstances. The application for relief should have been made promptly, but was made after a delay of 3 months. No reason has been given for this delay. [Regency Rolls vs Carnall] makes clear that a delay of 30 days would be considered as already too long.

1. It is our view that the seriousness of the failure to follow court procedures should result in not allowing relief from sanctions.

1. I believe that the facts stated in this witness statement are true.

<<<

[JBoss]

Bump...

I've got the hearing on 6th Feb...so any further help/advice would be greatly appreciated.

Thanks,
JBoss

[JBoss]

Bump...

I've got the hearing on 6th Feb (11 days away)...so any further help/advice would be greatly appreciated.

Thanks,
JBoss

[JBoss]

Bump...

I've got the hearing next week...so any further help would be appreciated.

Thanks,
JBoss

[R0b]

Hi JBoss

It seems your witnesss statement is a mix of fact and legal argument. Any evidence you rely on such as the letters should be included as exhibits to your witness statement and references to legal cases and arguments should really be in a skeleton argument.

I will try to dig out a basic skeleton I have opposing a set aside later today.

Are they seeking to rely on CPR 13.3 for both limbs that they have a reasonable propsect of success and there is some other good reason why it should be set aside? or is it just the some other good reason limb?

[JBoss]

Hi ROB,

I don't think the claimant has received any legal advice because if he had, then the response at the first relief hearing would have been "more correct", and their witness statement for the second relief hearing would be more substantial.

From my point of view, I don't believe the claimant has a "good" prospect of success, however it may be "reasonable" - I'm obviously biased ;-)

(One of the reasons I didn't pay the outstanding amount was that the claimant couldn't get their admin process right - so an email would go unanswered for months and when they did reply it was for something else, huge delays in scheduling fixes to snags etc. Their poor admin is probably the cause of the cheque not being sent and also the 3 month delay in applying for relief.)

I assume that the claimant is hanging onto the "some other good reason" limb...but has not provided this reason in his witness statement for the relief hearing (unless it's "cheque lost in the post, here's the cheque stub and cover letter as proof").

Looking at CPR 13.3 - it mentions defendant...I'm the defendant in the case, so I assume this section applies to the defendant and the claimant?

Thanks,
JBoss

[JBoss]

Would it be helpful if I added these paragraphs to my statement?

1. The claimant has shown a lack of planning and poor administration when dealing with the original case of the double glazing installation, consisting of failure to keep appointments, excessive delays responding to communication, attending to make repairs or installations without the requisite equipment, arranging for the manufacturer to attend without the requisite tools and parts etc – resulting in a delay of 3 years before the claimant initiated proceedings. It is now almost 6 years since the initial installation. The failure to pay the court fees and the delay in applying for relief appear to be very similar – a lack of planning and poor administration.
   1. The claimant has been the director of the company since 2008, is of an age where he would have understood how best to deal with post and letters and has previously been involved in legal issues. It's inconceivable that the claimant was not aware of best practise when dealing with legal issues and that use of registered/recorded post was expected.

JBoss

[R0b]

Some pointers about your witness statement:

1. There are some formalities for witness statements, not sure if you have covered this in your full sttaement and instead provided the main content in your previous post but, you would expect to see some introductory paragraphs below.

I, [full name] of [address] will say as follows:

I am the [claimant/defendant] in this claim.

I make this witness statement to oppose the claimant's application for relief from sanctions.
The facts and matters set out in this statement are within my own knowledge unless otherwise stated, and I believe them to be true. Where I refer to information supplied by others, the source of the information is identified; facts and matters derived from other sources are true to the best of my knowledge and belief.

There is now produced and shown to me a paginated bundle of true copy documents marked ["XX1"]. All references to documents in this statement are to Exhibit [XX1] unless otherwise stated.

2. Given that there is history to the claim, I would recommend you consider using sub-headings to sign post the judge. For example, you may want to have a sub-heading setting out the history of the case in a concise manner as the judge who will be presiding over the claim may have no knowledge of the background. You could also use other sign-posted sub-headings such as The Claimant's first hearing for relief from sanctions, Reasons why the court should not grant the Claimant relief

3. Where you refer to evidence such as letters, you should put in parenthesis where the judge can find that evidence in your exhibits. For example, you may say The claimant states that the cheque was lost in the post and was not sent “registered/recorded”, however all of the letters received from the claimant with regard to this case have been by recorded delivery (see page XX of XX1).

4. You statement of truth is incorrect. It should say I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

5. All of the references to case law and arguments there should be stripped out including the section below because that's legal argument and should go in the skeleton.

1. The claimant was notified that the case had been struck out on 27/05/2022, yet the relief application wasn't made until 01/09/2022 - a delay of 3 months, further wasting court resources. No indication has been given as to the cause of this delay. [Regency Rolls vs Carnall] made clear that 30 days was altogether too long a delay under normal circumstances [para45].

1. Conversely, the defendants have complied fully with the court procedures and deadlines and contacted the court regularly to get a date for this relief hearing in order to reduce these unnecessary delays.

1. To be granted relief from sanctions, the court must follow the “Denton criteria” which were derived from the [Denton vs TH White Ltd] case. The criteria to be applied is a 3-stage test:

1. Was the breach significant or serious? Yes. [Denton vs TH White] makes clear that the failure to pay court fees is a serious breach as it is fundamental to the legal process in ensuring that a trial date is set rather than the claim sitting in limbo doing nothing and wasting court resources. The breach has resulted in delaying the case for almost 2 years.

1. Are there any plausible reasons why the breach occurred? No. The claimant claims the fees were lost in the post but has provided no evidence that it was actually sent, no evidence of the cheque being notified as lost/stolen and no evidence that the status of the cheque was ever confirmed.

1. The court must consider all of the circumstances. The application for relief should have been made promptly, but was made after a delay of 3 months. No reason has been given for this delay. [Regency Rolls vs Carnall] makes clear that a delay of 30 days would be considered as already too long.

6. I'm uploading some example witness statements and a skeleton argument. Note that these are just basic templates to show you how you should set everything out and certain paragraphs may not be applicable so if that's the case just strip it out. If you are relying on case law, you should bring 3 copies with you in case no one else has a copy . You should be able to find the case law you referring to on https://www.bailii.org/.

Ordinarily, you should compile a bundle to include case law you are relying on, but I am not sure you have time for that. Instead you may want to say that you will provide full copies of the authorities you are relying on at the hearing. You could also link to the judgment as a convenience for the judge or other side but that's not typically normal practice.

And before you say I'm contradicting what I said about witness statements containing legal argument, I know the example has this included, which you can do if you like and omit the use of a skeleton argument but the rules state that witness statements should be factual only.

[JBoss]

Thanks for this...I'll go through it in detail today.

Thanks,
JBoss

[JBoss]

Hi ROB,

Do I need to send my completed documents to the court and the claimant - or just present them at the hearing?

The letters I've received from the court only stated that the claimant had to send his witness statement for the relief hearing...

Thanks,
JBoss

[R0b]

If you plan on submitting a witness statement and evidence (which I mean exhibits), you should send it to the court and the other side. If sending to the court by email, make sure to put the full name and claim number in the subject line as well as the hearing date and time otherwise they may not get back to you. You may want to read the guidance in the following link as to what can or cannot be sent by email.

https://www.justice.gov.uk/courts/em...ance%23canfile

Skeleton arguments and case law or other authorities you are relying on should be submitted 72 hours in advance in the same format as above. If you are not sending your cases as part of your skeleton then you should make it clear in the body of the email copies will be brought to the hearing. Good practice would be to offer the other side copies by email if they so wish, as you don't want them to say they have been ambushed in any sort of way.

FYI this is not the correct way to go about doing skeleton arguments or filing case law but I jst don't think you have time to do it and as it's a relief hearing, you are keeping costs low.

[JBoss]

Well, we had the relief hearing today.

The District Judge agreed that failure to pay fees was a serious breach, but the claimant had a reasonable excuse - letters get lost in the post all the time.
And so, as he'd provided a copy of the cheque stub and the cover letter - then, on the balance of probabilities, the cheque had been sent.

Therefore, the relief is granted and we're now expecting a date for the actual case hearing.


Disappointing for me, but hey ho.

Thanks for all the help and advice various people have given me in this case.

Thanks,
JBoss