Allowed Means of responding to an MCOL Claim

[pastie321]

Just preparing my Claimant's witness statement to support my challenge to the Defendant's application to set aside a default judgement and wanted to check a point regarding the original MCOL claim I submitted.

According to CPR 7c 7.1, a Defendant can respond either through the online portal or alternatively, send a hard copy form, but not both:

7.1 A defendant wishing to file –

(1) an acknowledgment of service of the claim form under Part 10;

(2) a part admission under rule 14.5;

(3) a defence under Part 15; or

(4) a counterclaim (to be filed together with a defence),

may, instead of filing a written form, do so by completing and sending the relevant online form at www.hmcourts-service.gov.uk/onlineservices/mcol.

7.2 Where a defendant files an online form –

(1) a hard copy must not be sent in addition;

(2) the form is not filed until it is received by the court, whatever time it is shown to have been sent;

(3) an online form received after 4 p.m. will be treated as filed on the next day the court office is open; and

(4) where a time limit applies, it remains the responsibility of the defendant to ensure that the online form is filed in time.


This is further supported on the Government webpage https://www.gov.uk/respond-to-court-...a-claim-online.

On both sources, responding via email is not deemed an acceptable means of response. An email address is mentioned on this webpage, but only as a means of obtaining help.

The Defendant sent both an Acknowledgement of Service and their Defence via emails, and I don't believe that either will have been deemed as 'filed' as the means of response does not align with CPR.

2 questions for clarification please:

1. If the Acknowledgement of Service had been 'filed' would MCOL have notified me? (I have no notifications so suspect this is the case)
2. Is my interpretation of CPR 7c 7.1 correct and therefore neither Acknowledgement of Service nor the Defence were actually filed?

TIA!

[pastie321]

For future reference for anyone else in a similar situation to be aware......

The hearing took place yesterday and the DJ deemed that filing of a Defence, even if sent to the wrong email address AND it being unclear whether email is a valid mechanism for filing, does constitute good filing.

I was slightly gobsmacked by this, particularly given that the defendant attempted to filed Acknowledgement of Service TWICE before attempting to file their defence and all of these attempts failed to be filed with MCOL.

Their initial attempt to file the application to set aside also failed and it was only the fact that this was also posted resulted in eventual successful filing.

The DJ's reasoning was

a) that the court system is a mess and there are too many email addresses, so it was unclear where documents could be filed
b) CPR 7c states that a defence may be filed online, not must, and even though email is not mentioned as a valid mechanism for filing, it it not specifically excluded:

7.1 A defendant wishing to file –

(1) an acknowledgment of service of the claim form under Part 10;

(2) a part admission under rule 14.2;

(3) a defence under Part 15; or

(4) a counterclaim (to be filed together with a defence),

may, instead of filing a written form, do so by completing and sending the relevant online form at www.hmcourts-service.gov.uk/onlineservices/mcol.

7.2 Where a defendant files an online form –

(1) a hard copy must not be sent in addition;

(2) the form is not filed until it is received by the court, whatever time it is shown to have been sent;

(3) an online form received after 4 p.m. will be treated as filed on the next day the court office is open; and

(4) where a time limit applies, it remains the responsibility of the defendant to ensure that the online form is filed in time.

Personally, I found this to be stretching the realms of credibility, particularly as the person filing was a legal professional and full-time employee of an organisation, therefore someone who should be all too familiar with the sanctions that could be faced for incorrect filing..

Set aside was granted under CPR 13.2, but fortunately costs not awarded and the main issues with the case were recognised by the DJ and a favourable way forward granted, therefore a positive outcome was achieved for me personally.

[R0b]

Think the judge is correct on this. Para. 7.1 does say may, not must and there is a distinction. Also if you look at Practice Direction 5B, para. 2.1 I think this answers your question.

2.1 Subject to paragraphs 2.2 and 2.3, a party may e-mail the court and may attach or include one or more specified documents to or in that e-mail.

I do not necessarily agree that the judgment ought to be set aside under CPR 13.2 because that means the judge would have to show that the defendant followed the correct process including sending it to the correct email address. It should have been set aside under CPR 13.3 in my view.

As for costs, any set aside under 13.2 typically attracts a costs order because the claimant has done something contrary to the rules. To my point above, unless the judge can show that the defendant did email the correct address for filing (which if I recal, they have an automated email address that tells you what email to send what document to). It's not good enough to simply say the email system is a mess, that's up to the court to sort out so long as the correct email is used.