Capquest Summons court claim received - SUCCESS !

[mystery1]

Re: Capquest Summons received

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1624.html

This sh1t's getting good

M1

[mystery1]

Re: Capquest Summons received

http://www.bailii.org/ew/cases/EWHC/Comm/2013/3920.html

M1

[mystery1]

Re: Capquest Summons received

There's more

http://www.bailii.org/ew/cases/EWHC/QB/2013/4042.html

I may not be an expert in this newish area of law procedure but if you have any questions before friday please ask and hopefully between us all we can ensure Mitchell is applied and you win.

Make sure you have your costs worked out in case you win. £18 per hour, 10p a page for copies, travel etc etc


M1

[Amethyst]

Re: Capquest Summons received

Thread moved temp to VIP xx

[mystery1]

Re: Capquest Summons received - VIP

Wally pm'd me.

Thanks for your posts. Your very kind.

I only write privately as I am sure Capquest are reading the blogs and I do not want them to have an advantage on Friday.

My biggest worry is the judge asking why am I asking for the agreement and documents. Then he says are you saying this is not your loan agreement. Did you have the money? Do you know what this account number refers to. When clearly it is my agreement with Lloyds.

What I want to really say to the Judge is why are they using the legal sytsem as a bully tactic.

They have gone for a summons knowing they did not have the agreement. How many people would just accept the judgement and now are left with a charging order on there property. This is not good.
Can I point this out to the judge?

My line in the court room is really to listen - or will I be required to justify what I have said. If so what line should I take.

If they produce the agreement on the day what can I say to the judge. If I was them I would say that now we have all the information can we have a new hearing.


My reply.

Even if they produce an agreement they have to get over the hurdle of getting relief from sanctions in order to use it. The breach of cpr 31.15 and the court order and the fact that had they sent a pre action letter pointing you the the pre action protocols you could have asked for sight of the documents is a very large hurdle for them to overcome. Those cases i listed are mostly binding as they are from the court of appeal.

The burden of proving that there is a good reason to get a relief from sanctions is theirs and it is not easy to overcome as you'll no doubt have read.

Most of your worries would have been more an issue for the unless order hearing but the judge granted it and they are stuck with it. The order was made and they knew they couldn't comply.

A Judge has also decided this is not for a rubber stamp job as they have put it down for a hearing instead of what they asked for.

They are in serious shit here, make no mistake about that.

It is their application and i'd think they have to justify themselves first. You may not need to speak. If you do it is your job to point out the case law and that they have made these failures and have shown no good reason why and as such case law such as Mitchell dictates that the court send them packing and the only thing they should get is a bill for your costs.



Any comments are welcome.

M1

[Wally]

Re: Capquest Summons received - VIP

How do I work out my costs when I have telephoned them?

[mystery1]

Re: Capquest Summons received - VIP

How do I work out my costs when I have telephoned them?

Add them all up and charge £18 per hour and a small sum to cover the phone charges depending on how you are billed.

M1

[mystery1]

Re: Capquest Summons received - VIP

Tomorrow the hearing is about whether they get relief from sanctions. It's their application so they should speak first. Hopefully they will speak and the judge will tell them to go forth and multiply. You may need to say why this application should be refused.

There is nothing you've shown me which is a decent reason for the flagrant breach of the rules and order of the court.

Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 (27 November 2013) sets out the statutory position.

23. CPR 3.9(1) provides:"On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need—
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders."

25. Finally, it is always necessary to have regard to CPR 1.1 and the "overriding objective" of enabling the court to deal with cases "justly and at proportionate cost". CPR 1.1(2) states that this includes, so far as is practicable:
"(a) ensuring that the parties are on an equal footing;
(b) saving expense;
…..
(d) ensuring that it is dealt with expeditiously and fairly;
(e) allotting to it an appropriate share of the court's resources, while taking into account the need to allot resources to other cases; and
(f) enforcing compliance with rules, practice directions and orders"

1. Much has been said about the Jackson reforms and in particular on the question whether the court is now required to adopt a more "robust" approach to granting relief to defaulting parties from the consequences of their defaults. The amendment to CPR 3.9 followed the recommendations made in Sir Rupert Jackson's Final Report Ch 39. At para 6.5, he said:
2. The "extreme course" to which he was referring was that non-compliance would no longer be tolerated, save in "exceptional circumstances". Instead, he recommended that sub-paragraphs (a) to (i) of CPR 3.9 be repealed and replaced by the wording that is to be found in the current version of the rule. He said that the new form of words
3. As Sir Rupert made clear, the explicit mention in his recommendation for the version of CPR 3.9 of the obligation to consider the need (i) for litigation to be conducted efficiently and at proportionate cost and (ii) to enforce compliance with rules, practice directions and court orders reflected a deliberate shift of emphasis. These considerations should now be regarded as of paramount importance and be given great weight. It is significant that they are the only considerations which have been singled out for specific mention in the rule.
4. We recognise that CPR 3.9 requires the court to consider "all the circumstances of the case, so as to enable it to deal justly with the application". The reference to dealing with the application "justly" is a reference back to the definition of the "overriding objective". This definition includes ensuring that the parties are on an equal footing and that a case is dealt with expeditiously and fairly as well as enforcing compliance with rules, practice directions and orders. The reference to "all the circumstances of the case" in CPR 3.9 might suggest that a broad approach should be adopted. We accept that regard should be had to all the circumstances of the case. That is what the rule says. But (subject to the guidance that we give below) the other circumstances should be given less weight than the two considerations which are specifically mentioned.
5. In the 18^th implementation lecture on the Jackson reforms delivered on 22 March 2013, the Master of the Rolls said in relation to CPR 3.9 that there was now to be a shift away from exclusively focusing on doing justice in the individual case. He said:
6. We endorse this approach. The importance of the court having regard to the needs and interests of all court users when case managing in an individual case is well illustrated by what occurred in the present case. If the claimant had complied with para 4 of PD 51D, the Master would have given case management and costs budgeting directions on 18 June and the case would have proceeded in accordance with those directions. Instead, an adjournment was necessary and the hearing was abortive. In order to accommodate the adjourned hearing within a reasonable time, the Master vacated a half day appointment which had been allocated to deal with claims by persons who had been affected by asbestos-related diseases.
7. We hope that it may be useful to give some guidance as to how the new approach should be applied in practice. It will usually be appropriate to start by considering the nature of the non-compliance with the relevant rule, practice direction or court order. If this can properly be regarded as trivial, the court will usually grant relief provided that an application is made promptly. The principle "de minimis non curat lex" (the law is not concerned with trivial things) applies here as it applies in most areas of the law. Thus, the court will usually grant relief if there has been no more than an insignificant failure to comply with an order: for example, where there has been a failure of form rather than substance; or where the party has narrowly missed the deadline imposed by the order, but has otherwise fully complied with its terms. We acknowledge that even the question of whether a default is insignificant may give rise to dispute and therefore to contested applications. But that possibility cannot be entirely excluded from any regime which does not impose rigid rules from which no departure, however minor, is permitted.
8. 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.

1. This approach should also be adopted in relation to CPR 3.9. In short, good reasons are likely to arise from circumstances outside the control of the party in default: see the useful discussion in Blackstone's Guide to The Civil Justice Reforms 2013 (Stuart Syme and Derek French, OUP 2013) at paras 5.85 to 5.91 and the article by Professor Zuckerman "The revised CPR 3.9: a coded message demanding articulation" in Civil Justice Quarterly 2013 at pp 9 to 11.
2. Mr Browne sought to rely on certain factors which, he contended, showed that the sanction should not have been imposed by the Master in the first place. That was in our view a misguided submission. An application for relief from a sanction presupposes that the sanction has in principle been properly imposed. If a party wishes to contend that it was not appropriate to make the order, that should be by way of appeal or, exceptionally, by asking the court which imposed the order to vary or revoke it under CPR 3.1(7). The circumstances in which the latter discretion can be exercised were considered by this court in Tibbles v SIG Plc (trading as Asphaltic Roofing Supplies) [2012] EWCA Civ 518, [2012] 1 WLR 2591. The court held that considerations of finality, the undesirability of allowing litigants to have two bites at the cherry and the need to avoid undermining the concept of appeal all required a principled curtailment of an otherwise apparently open discretion. The discretion might be appropriately exercised normally only (i) where there had been a material change of circumstances since the order was made; (ii) where the facts on which the original decision was made had been misstated; or (iii) where there had been a manifest mistake on the part of the judge in formulating the order. Moreover, as the court emphasised, the application must be made promptly. This reasoning has equal validity in the context of an application under CPR 3.9.
3. On an application for relief from a sanction, therefore, the starting point should be that the sanction has been properly imposed and complies with the overriding objective. If the application for relief is combined with an application to vary or revoke under CPR 3.1(7), then that should be considered first and the Tibbles criteria applied. But if no application is made, it is not open to him to complain that the order should not have been made, whether on the grounds that it did not comply with the overriding objective or for any other reason. In the present case, the sanction is stated in CPR 3.14 itself: unless the court otherwise orders, the defaulting party will be treated as having filed a budget comprising only the applicable court fees. It is not open to that party to complain that the sanction does not comply with the overriding objective or is otherwise unfair. The words "unless the court otherwise orders" are intended to ensure that the sanction is imposed to give effect to the overriding objective. As we have said, the principles by which the court should decide whether to order "otherwise" are likely to be the same as the principles by which an application under CPR 3.9 is determined. In most cases, the question whether to relieve a party who has failed to file a costs budget in accordance with CPR 3.13 from the CPR 3.14 sanction will therefore be dealt with under CPR 3.14. That did not happen in the present case. That is why the question of relief from sanctions was dealt with under CPR 3.9.
4. The new more robust approach that we have outlined above will mean that from now on relief from sanctions should be granted more sparingly than previously. There will be some lawyers who have conducted litigation in the belief that what Sir Rupert Jackson described as "the culture of delay and non-compliance" will continue despite the introduction of theJackson reforms. But the Implementation Lectures given well before 1 April 2013 were widely publicised. No lawyer should have been in any doubt as to what was coming. We accept that changes in litigation culture will not occur overnight. But we believe that the wide publicity that is likely to be given to this judgment should ensure that the necessary changes will take place before long.
5. We recognise that there are those who will find this new approach unattractive. There may be signs that it is not being applied by some judges. In Ian Wyche v Careforce Group Plc [2013] EWHC 3282 (Comm), the defendant had failed to comply in all respects with an "unless" order. Walker J acceded to an application for relief under CPR 3.9 for two failures which he described as "material in the sense that they were more than trivial". But he said that they were "unintentional and minor failings in the course of diligently seeking to comply with the order". At para 61 of his judgment, Walker J said:
   "The culture which the court seeks to foster is a culture in which both sides take a common sense and practical approach, minimising interlocutory disputes and working in an orderly and mutually efficient manner towards the date fixed for trial. It would be the antithesis of that culture if substantial amounts of time and money are wasted on preparation for and conduct of satellite litigation about the consequences of truly minor failings when diligently seeking to comply with an 'unless' order."
6. We have earlier said that the court should usually grant relief for trivial breaches. We are not sure in what sense the judge was using the word "unintentional". In line with the guidance we have already given, we consider that well-intentioned incompetence, for which there is no good reason, should not usually attract relief from a sanction unless the default is trivial. We share the judge's desire to discourage satellite litigation, but that is not a good reason for adopting a more relaxed approach to the enforcement of compliance with rules, practice directions and orders. In our view, once it is well understood that the courts will adopt a firm line on enforcement, litigation will be conducted in a more disciplined way and there should be fewer applications under CPR 3.9. In other words, once the new culture becomes accepted, there should be less satellite litigation, not more.

1. We start by re-iterating a point that has been made before, namely that this court will not lightly interfere with a case management decision. In Mannion v Ginty [2012] EWCA Civ 1667at para 18, Lewison LJ said:
   "It has been said more than once in this court, it is vital for the Court of Appeal to uphold robust fair case management decisions made by first instance judges."
   
   
   
   The decision made with regard to the unless order was a fair and appropriate method of dealing with Capquests non performance under both cpr 31.14 and cpr 31.15. They have also failed to comply with the unless order and are seeking relief from sanctions for this having taken way longer than the 7 days that cpr 31.15 allows, as well as the extra time that was obtained with the granting of the unless order. They are now not only seeking relief from sanctions but several weeks longer to comply. It is the defendants position that the appeal court ruling in Mitchell backed up by Durrant v Avon & Somerset Constabulary [2013] EWCA Civ 1624 (17 December 2013), SC DG Petrol SRL & Ors v Vitol Broking Ltd [2013] EWHC 3920 (Comm) (09 December 2013) and Karbhari & Anor v Ahmed [2013] EWHC 4042 (QB) (17 December 2013) all apply and that the claimants breaches are not trivial and therefore the relief from sanctions should be denied, the claim struck out as per Judge x order of xx/xx/xx and the defendant be awrded costs.
   
   
   
   
   
   M1
   
   

[Wally]

Re: Capquest Summons received - VIP

Many thanks M1

I have printed this off and will bring it with me

I will post the result tommorow PM

Once again a big thanks

Wally

[mystery1]

Re: Capquest Summons received - VIP

Many thanks M1

I have printed this off and will bring it with me

I will post the result tommorow PM

Once again a big thanks

Wally

Very best of luck.

Really excited about you winning

M1

[Gorang]

Re: Capquest Summons received - VIP

Good luck Wally

Champers is on ice for you lol

[Wally]

Re: Capquest Summons received - VIP

A joint effort so a joint win

Wally

[Amethyst]

Re: Capquest Summons received - VIP

Best of luck tomorrow Wally.

[pt2537]

Re: Capquest Summons received - VIP

Wally,

Make sure you have copies of the full cases which you are going to refer the judge to

judges hate ill prepared people and wont give you much lee way if you turn up referring to cases without the case itself.


Good luck tomorrow, i hope you get the right result, ive been extremely busy and have not been able to look in as much as i would have liked.

[Amethyst]

Re: Capquest Summons received - VIP

Just waiting on Wally posting but as peeps have been asking, it appears things have been put off for another hearing, the Judge thought the hearing was about the unless order and relief from sanctions wasn't decided upon. I'm sure Wally or M1 will update over the weekend.

Outside of this, and just for interest regarding Mitchell - http://www.lawgazette.co.uk/practice...039233.article - common sense really and changes nothing.