Unjust enrichment case - Online auction - Cause to submit strike out?

[Pezza54]

Has the hearing date been brought forward?

[dylan2408]

Nope still in October, their legal team are useless, after serving their statement a week late with no approval from the court they have also missed their 4pm deadline yesterday to serve me with their schedule of loss.

I'm now confused about how to approach this with the court, I'm not chasing them but if I do not receive their schedule of loss soon I'm going to have to serve my counter schedule late or not at all?

[R0b]

Does the court order specify any consequences for failing to serve the documents within the specified time given by the court? More importantly, does the order state the counter-schedule subject to CoPart's schedule being served first? You need to be careful and ensure you comply with the order as its stated, irrespective of whether or not they have served their documents late.

Failure to comply with court orders within the specified time, attract automatic sanctions. For example, with regards to witness statements CPR 32.10 says:

32.10 If a witness statement or a witness summary for use at trial is not served in respect of an intended witness within the time specified by the court, then the witness may not be called to give oral evidence unless the court gives permission.

The leading point on this is Chartwell v Fergies [2014] which confirmed the sanction takes effect from the date that the time limit to serve the statement or document expires. CoPart will need to apply for relief from sanctions and the longer they leave it, the more unlikely they will be granted relief, especially if no application is made until the day of the hearing, which I think the court is unlikely to indulge.

It does also mean you need to keep on the right side of the order otherwise you may find yourself in default of not being able to rely on documents or evidence.

[Pezza54]

A schedule of loss is more applicable to an employment tribunal. Compensatory award, estimate of loss of future earnings, pension etc

The claimant may be having trouble compiling a schedule of loss.

If I remember rightly, their claim was based on what you were prepared to pay but weren't the winning bidder less what you actually paid when you bought the car "Buy it now" a few days later. They then asked you to return the car when they said they had made a mistake.

How do you produce a schedule out of that?

[atticus]

A counter schedule is, by definition, a response. You cannot respond to a schedule that has not been served on you. Surely, if anything, your present position is that the claimant has suffered no recoverable loss.

[R0b]

A schedule of loss is more applicable to an employment tribunal. Compensatory award, estimate of loss of future earnings, pension etc

The claimant may be having trouble compiling a schedule of loss.

If I remember rightly, their claim was based on what you were prepared to pay but weren't the winning bidder less what you actually paid when you bought the car "Buy it now" a few days later. They then asked you to return the car when they said they had made a mistake.

How do you produce a schedule out of that?

It's applicable in all areas of law, particularly in personal injury claims. A court might order a schedule of loss if it is unclear what is being claimed but also to get an idea of other types of losses e.g. management time, consequential losses etc.

If I recall, I thought that CoPart were legally represented so preparing a schedule of loss is bread and butter.

[dylan2408]

In the absence of a schedule of loss and with my deadline today I have drafted:

COUNTER SCHEDULE OF LOSS - DEFENDANT'S POSITION

1. The Defendant, Mr. Dylan Samuels, submits this Counter Schedule of Loss in response to the claim brought by Copart UK Limited ("Copart").
2. Since the deadline for claimants submission for schedule of loss and evidence relied upon passed on the 25th April at 4pm, the Defendant has not received any Schedule of Loss from the Claimant.
3. The Defendant asserts that the absence of a Schedule of Loss from the Claimant impedes the Defendant's ability to respond effectively and to understand the specific claims being made against him.
4. The Defendant maintains his position that the Claimant has not suffered any recoverable loss as alleged in the Claim Form.
5. Without a Schedule of Loss detailing the specific losses claimed by the Claimant, the Defendant is unable to provide a detailed response to each item of alleged loss.
6. The Defendant requests that the Court take into consideration the absence of a Schedule of Loss from the Claimant when assessing the merits of the claim.
7. The Defendant reserves the right to amend or supplement this Counter Schedule of Loss should the Claimant subsequently provide a Schedule of Loss.
8. The Defendant requests that the Court dismiss the Claimant's claim in its entirety due to the failure to provide a Schedule of Loss and the absence of evidence supporting the alleged losses.

Since this is not an objection to any part of the claimants missing schedule of loss can I file this with the court or will this still have to be sent to the claimant?

I really don't want to give them the opportunity to file a late schedule of loss with our hearing in October, they have been just making a mockery of every deadline given by the court so far.

[dylan2408]

Checked with the court they confirmed nothing has been filed since witness statements and just to send the counter schedule to the court to make them aware and file

[Pezza54]

Send your counter schedule of loss to the court with a covering letter/email stating what the court told you about not sending a copy to the claimant

[atticus]

Your document is wordy, but makes the point.

[dylan2408]

Pre trial checklists going in tomorrow, at this point I have the opportunity to put forward any draft orders / applications.

Would it be wise to put forward a motion for sanctions?

Late filing of statement from the Claimant without prior application to the court

Standard disclosure includes no documents or communication with the seller or other buyer of this vehicle. Specifically no search of internal mail server, ignored request to disclosure these documents (7 day window given by court to reply to such requests).

Did not serve in its entirety a schedule of loss.

Unsure what sanctions I would specifically be applying for, Just don't want them turning up at court as though they followed the court directions and getting away with acting so poorly pre-trial.

[atticus]

Does CPR 32.10 help you? https://www.justice.gov.uk/courts/pr...s/part32#32.10

If this applies, then the sanction already exists, and it is for the other party top apply to the court to give permission.

If the claimant's disclosure is thin, do you really want to give them an opportunity to correct it and improve their case? Or do you believe that seeking specific disclosure may assist your case?

[dylan2408]

Specifically the claimant has not included any communication between them and the actual owner/seller of the vehicle this includes detailing any fees Copart are party to on sale of the vehicle. This would be a % based fee they were entitled to rather then the full sale price they are chasing me for, I believe that would strengthen my case. Also they will have communication from the seller detailing what their reserve price for the vehicle was (Which was met) when I bought the vehicle.

I'm in two minds, my case is strong enough without the further disclosure but it would always be good to have more going against them. They have made the decision not to search their email servers I believe because they are aware of communications that would adversely impact their case.

As for sanctions I was under the impression the court would handle this themselves however at this stage I have not been notified of anything.

[atticus]

1. Remind the court at hearings of CPR 32.10. Remind the judge that Copart needs permission to rely on the evidence of witnesses whose evidence is served late. Copart should be applying for what is called relief from sanctions, but you do not need to tell them that.

2. I think you have established that Copart acted on an agency basis, so surely you can make your points about their fee when cross examining their witnesses, or even just in submission to the court.

[dylan2408]

Yeah thats a fair evaluation, I'll hold off. Prefer to anyway, dealing with this case is stressful enough without getting an additional hearing and more legal fees piled on top. Thanks Atticus