Amended Particulars of Claim

[horleyox]

What do you think? Any chance of opposing the application on the grounds of CPR/7 day rule?

horleyox

[horleyox]

R0b,

Here you go. Redacted copy uploaded.

horleyox

[horleyox]

R0b
1. There is no mention of notice or no notice in the application; it did however come attached to a Notice of Hearing Application granted (namelessly) for 8 November on 14 September

2. The order they are trying to set aside was made on 2 Aug, while their application to do so was made on 20 Aug, so more than 7 days later

horleyox

[R0b]

Was the set aside application made 'with notice' or 'without notice'? In order words, have you receive the application that they've made and on the application does it say it is being made with or without notice.

What was the date of that order giving an extension to file an amended POC? You then need to work out if this set aside application made more or less than 7 days as required by CPR 3.5(6)(b). If more than 7 days, the application should not be heard as they are out of time.

Does the application come with a witness statement and if so what is the contents? We should really see all of the contents of that application and accompanying documents.

I don't want to sound rude but if you want us to help then you really do need to give full disclosure and share the documents albeit redacted. It's very hard to try and interpret what's going on and how you can approach this without seeing what the other side has said or done.

[horleyox]

Hello R0b,

The solicitor has stated in an email to me that he has complied with obligations pursuant to CPR 39.8 and in the application makes reference to it being made pursuant to CPR 3.3(5)(a).

Had no opportunity to object. They make a strike out application on 20 July and then this application to set aside on 20 August - 11 days before my re-amended PoC were due to be submitted.

horleyox

[R0b]

It would be helpful to see the actual order otherwise we're just speculating. Assuming the order was made without the parties being present, then CPR 23.10 applies:

(1) A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside or varied.

(2) An application under this rule must be made within 7 days after the date on which the order was served on the person making the application.

I'm guessing your argument to oppose will be the fact that they were fully aware of the order being made, had no objections only until you filed a compliant POC and, perhaps the details of the POC have given the defendant's cause for concern and are now deciding that they did not like the previous order so are now seeking to set it aside. Unfortunately, they're out of time for consideration, simple as that.

[horleyox]

Out of interest, may I ask Efpom if he is/was a solicitor or has any legal training or qualifications?

horleyox

[horleyox]

The order(s) in June and August only stated the deadlines when I had to file if I didn't want my claim to be struck out.

horleyox

[horleyox]

Hello R0b,

I found my name was still in the author field of the PDFs; hence why removed.

They state the amended PoC (prepared with the help of Efpom and stuck strictly with the DJ's directions and what was asked of me) should have been enough to strike out my claim and claim the defendants' costs
horleyox

[R0b]

Has anyone ever come across a duly made court order being overturned by a legal representative on the grounds he doesn't agree with the judgment. Indeed the application questions the DJ's impartiality.

All the time but it is fact specific. You've removed the order so I can't see what it says but what was the date of that order they're objecting to? Did it say anything in there that the parties have X days to file an application to vary the order or any words to that effect?

[horleyox]

Well after all that hassle submitting compliant re-amended PoC on time, the defendants' solicitor has made an application to overturn the court order that allowed me to submit amended PoC in the first place. They are not appealing the DJ's decision/judgment but want it to be overturned, stating I shouldn't have been given another opportunity.

And of course they want to claim all costs to date including those linked to this application.

Has anyone ever come across a duly made court order being overturned by a legal representative on the grounds he doesn't agree with the judgment. Indeed the application questions the DJ's impartiality.

They are so desperate for their clients not to end up in court as their defence is not credible, never mind truthful.

horleyox

[horleyox]

Hello R0b,

Here you go...see attachment.

horleyox

[R0b]

Thanks for the update, good to know you got something in on time - hopefully the judge will accept that the POC are compliant.

Just for the benefit of others who might be in a similar position (and if you have time), would you be willing to share a redacted version of the POC?

[horleyox]

Filed Re-Amended PoC by yesterday's deadline with 28 minutes to spare.

A choice with 90 minutes left between 8 pages or 12, given the requirement of CPR 16 for conciseness. I opted for 12 pages as the 'story' couldn't fit or flow in only 8.

Lucky I retained a solicitor to prepare the final draft. Turned out I couldn't claim breach of statutory duty as that is for the council to rectify, not me.

Went for private nuisance, actionable in Tort and duty of care as was established in Leakey Ors v National Trust (1981) QB 485 which determined that an occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on their land, whether natural or man-made.

So I have now submitted what is legally considered compliant PoC, with the reservation on conciseness. Plus I have been advised that I will probably not be successful in claiming past or present legal costs, so that is likely to half the amount of my claim.

Had added a sum of £1k for nuisance, but removed from final draft as had not previously been claimed and might need another application. Not worth the bother.

So now it is just about principle, not money, plus avoiding costly strike-out proceedings.

The solicitor's closing remark was "Keep everything crossed (i.e. finger and toes). Litigation ought not to be like that, but it frequently is!"

horleyox

[horleyox]

Hello R0b,

I've asked her for opinion on probability of success. More important than receiving additional monies claimed!

Also received copy today of strike out application. Not yet submitted as it turns out but adds dramatically to thinking on their defence. Solicitors have also reported ME to the police for harassment of their clients since 2018.

You couldn't make it up.

horleyox