Capquest Summons court claim received - SUCCESS !

[Wally]

Re: Capquest Summons received

Hi Help please.

A sad day.

A rather large letter arrived from Capquest Solicitors today saying they are not able to to comply with the court order and will not be able to provide the documents becuase they are waiting on the original lender so have gone for an application for Relief from Sanction and requested more time.

What does this mean? What do I do?


Many thanks

Wally

[MIKE770]

Re: Capquest Summons received

Hi Help please.

A sad day.

A rather large letter arrived from Capquest Solicitors today saying they are not able to to comply with the court order and will not be able to provide the documents becuase they are waiting on the original lender so have gone for an application for Relief from Sanction and requested more time.

What does this mean? What do I do?


Many thanks

Wally

cHEEKY GITS - THEN THEY SHOULD NOT HAVE ISSUED SUMMONS WITH NO KNOWN PAPERWORK, - SANCTION THEM FOR COST IF IT EVer went to court. --oopppsss sorry key stuck

[Sickofbullies]

Re: Capquest Summons received

I don't know if this helps-hope so http://www.gwslaw.co.uk/2013/02/appl...rom-sanctions/

[CleverClogs]

Re: Capquest Summons received

They should be clapped in the pillory and have their balls struck off by the public executioner.

[mystery1]

Re: Capquest Summons received

Hi Help please.

A sad day.

A rather large letter arrived from Capquest Solicitors today saying they are not able to to comply with the court order and will not be able to provide the documents becuase they are waiting on the original lender so have gone for an application for Relief from Sanction and requested more time.

What does this mean? What do I do?


Many thanks

Wally

In all honesty Wally it's not something i've encountered before. However there are new rules from April and courts appear to be taking a firm stance with non compliance of court orders http://old.clerksroom.com/downloads/...rticle0913.pdf http://www.litigationfutures.com/new...lebgate-appeal http://civillitigationbrief.wordpres...rom-sanctions/ http://www.lawsociety.org.uk/advice/...ocedure-rules/

I'll ask someone to have a look who knows more than me. It does look like they may have a massive hurdle to overcome.

Who signed the claim form ? A person or a company ?

M1

[pt2537]

Re: Capquest Summons received

In all honesty Wally it's not something i've encountered before. However there are new rules from April and courts appear to be taking a firm stance with non compliance of court orders http://old.clerksroom.com/downloads/...rticle0913.pdf http://www.litigationfutures.com/new...lebgate-appeal http://civillitigationbrief.wordpres...rom-sanctions/ http://www.lawsociety.org.uk/advice/...ocedure-rules/

I'll ask someone to have a look who knows more than me. It does look like they may have a massive hurdle to overcome.

Who signed the claim form ? A person or a company ?

M1

Ok starting point is the CPR, if you refer to Expandable v Rubin Rix LJ makes it clear that the claimant cannot avoid its obligations for disclosure. See Para 24 of the judgment i think it is.

So the rules are the rules, you should be in a position to provide disclosure BEFORE A claim is issued under the CPR PRe action Protocl so to try and say oh crap we can provide it after 56 days of litigation is a nonsense.

There is a case which i dont think has been quoted, which is the Venulum case where shoosmiths got spankered badly i think it was, in Venulum it was clear that relief from sanctions would only be given if there was justification for the failure to comply with the rules, this was confirmed as being the correct approach in "Mitchell"

So id oppose the application vigourously and ask for their claim to be struck out.

[Wally]

Re: Capquest Summons received

Hi
It was signed by an individual

[mystery1]

Re: Capquest Summons received

Ok starting point is the CPR, if you refer to Expandable v Rubin Rix LJ makes it clear that the claimant cannot avoid its obligations for disclosure. See Para 24 of the judgment i think it is.

So the rules are the rules, you should be in a position to provide disclosure BEFORE A claim is issued under the CPR PRe action Protocl so to try and say oh crap we can provide it after 56 days of litigation is a nonsense.

There is a case which i dont think has been quoted, which is the Venulum case where shoosmiths got spankered badly i think it was, in Venulum it was clear that relief from sanctions would only be given if there was justification for the failure to comply with the rules, this was confirmed as being the correct approach in "Mitchell"

So id oppose the application vigourously and ask for their claim to be struck out.

I think it was in the pieces i linked to, although not the actual case report. I was thinking as you said but not confident enough to say it with much authority. I will now

M1

[Wally]

Re: Capquest Summons received

They claim an unforeseen delay with obtaining information from the original creditor in order to provide disclosure they are actively liaising with the original creditor but they have said it will not be available in time, they seek relief from sanction under s3.9 of the civil procedure rules 1998 the CPR they want a months extension they say there client is a third party and the flat is not attributable to the claimant

Hope that help

[Wally]

Re: Capquest Summons received

They want this dealt with without a hearing

[mystery1]

Re: Capquest Summons received

Can you post up the unless order and what they sent today please. Take of personal info.

http://www.bailii.org/ew/cases/EWHC/TCC/2013/1242.html

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1537.html

M1

[CleverClogs]

Re: Capquest Summons received

They claim an unforeseen delay with obtaining information from the original creditor in order to provide disclosure they are actively liaising with the original creditor but they have said it will not be available in time, they seek relief from sanction under s3.9 of the civil procedure rules 1998 the CPR they want a months extension they say there client is a third party and the flat is not attributable to the claimant

That is a very poor excuse and, in my opinion, wholly inadequate; they should have the case documents to hand before they started the claim - or would those onanists have the court believe that, because some defendants don't/won't defend, it is acceptable to issue a claim without being able to prove it?

That doesn't seem merely unprofessional but it appears to be somewhat delinquent.

They want this dealt with without a hearing

Well, they would, wouldn't they?

They don't want to pay for a hearing at which, if the judge has anything about him, they'll be scolded.

[CleverClogs]

Re: Capquest Summons received

So id oppose the application vigorously and ask for their claim to be struck out and their testicles to be struck repeatedly with a heavy maul.

IFYPFY :rofl:

[Wally]

Re: Capquest Summons received

Hi
Hope this helps
Wally

[mystery1]

Re: Capquest Summons received

That is a pretty weak ass attempt to get relief from sanctions and it appears they are not aware of the new way of doing things.

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1537.html

41. If the non-compliance cannot be characterised as trivial, then the burden is on the defaulting party to persuade the court to grant relief. The court will want to consider why the default occurred. If there is a good reason for it, the court will be likely to decide that relief should be granted. For example, if the reason why a document was not filed with the court was that the party or his solicitor suffered from a debilitating illness or was involved in an accident, then, depending on the circumstances, that may constitute a good reason. Later developments in the course of the litigation process are likely to be a good reason if they show that the period for compliance originally imposed was unreasonable, although the period seemed to be reasonable at the time and could not realistically have been the subject of an appeal. But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all. This may seem harsh especially at a time when some solicitors are facing serious financial pressures. But the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner. If departures are tolerated, then the relaxed approach to civil litigation which the Jackson reforms were intended to change will continue. We should add that applications for an extension of time made before time has expired will be looked upon more favourably than applications for relief from sanction made after the event.

60. In the result, we hope that our decision will send out a clear message. If it does, we are confident that, in time, legal representatives will become more efficient and will routinely comply with rules, practice directions and orders. If this happens, then we would expect that satellite litigation of this kind, which is so expensive and damaging to the civil justice system, will become a thing of the past.



http://www.justice.gov.uk/courts/pro...on_conduct#1.1



PRACTICE DIRECTION – PRE-ACTION CONDUCT


SECTION I – INTRODUCTION

1. Aims

1.1 The aims of this Practice Direction are to –
(1) enable parties to settle the issue between them without the need to start proceedings (that is, a court claim); and
(2) support the efficient management by the court and the parties of proceedings that cannot be avoided.
1.2 These aims are to be achieved by encouraging the parties to –
(1) exchange information about the issue

SECTION II – THE APPROACH OF THE COURTS

4.2 The court will expect the parties to have complied with this Practice Direction or any relevant pre-action protocol. The court may ask the parties to explain what steps were taken to comply prior to the start of the claim. Where there has been a failure of compliance by a party the court may ask that party to provide an explanation.


Examples of non-compliance
4.4 The court may decide that there has been a failure of compliance by a party because, for example, that party has –
(1) not provided sufficient information to enable the other party to understand the issues;
(4) without good reason, not disclosed documents requested to be disclosed.


7. Exchanging information before starting proceedings


7.4 Annex B sets out the specific information that should be provided in a debt claim by a claimant who is a business against a defendant who is an individual.



So the claimant should have been in a position to have sent the documents it relied on, if requested, before lodging a calim. It therefore failed to comply with the relevant CPR's.




http://www.justice.gov.uk/courts/pro...s/part31#31.14

Documents referred to in statements of case etc.
31.14
(1) A party may inspect a document mentioned in –
(a) a statement of case;
(b) a witness statement;
(c) a witness summary; or
(d) an affidavit(GL).
(e) Revoked.
(2) Subject to rule 35.10(4), a party may apply for an order for inspection of any document mentioned in an expert's report which has not already been disclosed in the proceedings.
(Rule 35.10(4) makes provision in relation to instructions referred to in an expert’s report)
Back to top
Inspection and copying of documents
31.15 Where a party has a right to inspect a document–
(a) that party must give the party who disclosed the document written notice of his wish to inspect it;
(b) the party who disclosed the document must permit inspection not more than 7 days after the date on which he received the notice; and
(c) that party may request a copy of the document and, if he also undertakes to pay reasonable copying costs, the party who disclosed the document must supply him with a copy not more than 7 days after the date on which he received the request.
(Rule 31.3 and 31.14 deal with the right of a party to inspect a document)


You made a request under CPR 31.14 and the rules state they have 7 days. They failed. xx days later they have still failed and now they want relief from sanctions and 4 times as long to comply with disclosure as the rules allow despite already having significantly longer than allowed.

http://www.bailii.org/ew/cases/EWCA/Civ/2008/59.html

24. The second matter is that, subject to my first comment, the expression "mentioned" is as general as could be. This is not to my mind intended to be a difficult test. The document in question does not have to be relied on, or referred to in any particular way or for any particular purpose, in order to be mentioned. Subject to Mr Lightman's second point, that the mention of a document within CPR 31.14 amounts to automatic and absolute waiver of privilege in it, which if correct would give to that rule a most important effect, I do not see why there should be need for a strict approach to a request for inspection of a specific document mentioned in one of the qualifying documents. The general ethos of the CPR is for a more cards on the table approach to litigation. If a party thinks it worthwhile to mention a document in his pleadings, witness statements or affidavits, I do not see why, subject as I say to the question of privilege, the court should put difficulties in the way of inspection. I look upon the mention of a document in pleadings etc as a form of disclosure. The document in question has not been disclosed by list, or at any rate not yet, but it has been disclosed by mention in what, for the purposes of litigation, is another important and formal category of documents. If so, then the party deploying that document by its mention should in principle be prepared to be required to permit its inspection, and the other party should be entitled to its inspection. What in such circumstances is the virtue of coyness?




Failed to comply with the pre action protocols, failed to comply with with your 31.14 request and now failed to comply with a court order. This is not a trivial matter and as such the court should apply Mitchell and dismiss the application.

M1