URGENT: Defendant failed to comply with Courts orders, hearing on 9/3

[sytra]

Hi, I'm hoping someone can help, a little background and timeline

I brought a claim against an estate agent back in 2020 and finally got the courts orders on 16th January 2023. The orders stated all parties must send all documents and witness statements to all other parties and the court by 13 February 2023 with the hearing scheduled for 9/3/23.

I as the Claimant did send all the paperwork to both court and defendant, the court has confirmed it was filed on time however the defendant called the court on the 15th Feb, two days after the deadline and after receiving my documents to say they had not received notice of the hearing or courts orders and were taking legal advice.

it's now way over 2 weeks late, the court still has had no response from the defendant (I phone them regularly) and the hearing is in 7 days time. The Defendant has had all this time to look at my evidence and statement and to work their reply around it. The problem is, it is going to be a difficult case for me to win anyway however, my evidence did have a couple of points that went right and worked in my favour and now the defendants have had the extra time needed to dig into those.

Would it be advisable to file an n244 to ask the court to strike out the defence or something else or just leave it and hope the judge doesn't allow the defendants statement etc as its clearly a breach of the cpr rules and has put myself in a disadvantage position.

thankyou in advance

[sytra]

Sorry, I can't see how to edit the post.

I meant to say that the defendant has also failed to properly address the allegations in the POC, they constantly repeat the property was "not misadvertised" which is not what the claim is about, I never once mentioned it was mis advertised, the claim is about making misleading omissions.

[atticus]

is there a difference? Misleading can be by statement or omission.

Can you please quote the full wording of the paragraph in the court order relating to provision of witness statements and documents.

[sytra]

This is a copy of the orders

[atticus]

Read the 4th paragraph in bold on page 1. The court may impose sanctions for non compliance including excluding evidence.

[sytra]

Thank you for your help, Yes, I'd seen that but wasn't sure if the court / judge would apply the sanctions themselves or if I had to give a nudge. I'm not trying to be funny but it's been a while since I've brought or defended a claim and things seem to have changed a fair bit, last time around I had to do an application.

[charitynjw]

Read the 4th paragraph in bold on page 1. The court may impose sanctions for non compliance including excluding evidence.

Hi atticus

In your experience, how rigorously do courts apply Denton principles?

If a response per a court order is made, but late (ie after the order date), but the other party is not prejudiced in any way, what chance is there for the 3rd limb of Denton kicking in?

I ask because someone I know is in that unfortunate predicament.

[atticus]

My experience is that judges apply Denton. That is not the same as saying that relief from sanctions is always refused. You will be aware of the overriding objective in CPR 1.1 of dealing with cases justly (bearing in mind the various things listed there).

[charitynjw]

My experience is that judges apply Denton. That is not the same as saying that relief from sanctions is always refused. You will be aware of the overriding objective in CPR 1.1 of dealing with cases justly (bearing in mind the various things listed there).

Thank you.

[sytra]

A little update, not a win as such but satisfaction in that they have to pay something.

The Defendant made a part 36 offer to the court at 4pm the day before the hearing, but didnt let me know. The judge wasn't happy with their conduct throughout, not replying to emails, not complying with CPR, failing to turn up at the hearing etc. Anyway, the judge said he couldn't advise wether to accept the offer but did make it obvious he thought it the best option. He also said they could have avoided all this had they made an offer earlier in process. I thought it strange as I thought a part 36 didn't apply to small claims.

So, taking their conduct into account the judge said the courts discretion was they could accept the offer as part 36 due to the Defendants behaviour throughout. As a result the Defendant is now ordered to pay the offer amount plus costs within 14 days.

So, not a complete win BUT, the Defendant must have been a little apprehensive I think to have made the offer.

[charitynjw]

CPR 27.2(g)

[atticus]

CPR 27.2(g)

confirms that Part 36 does not apply to cases allocated to the Small Claims track.

Were the costs assessed, i.e. has the defendant been ordered to pay a specified sum as costs?

[sytra]

I believe so, they order is going to be for the amount in the offer plus the costs I incurred in bringing the claim.