Small claims procedure for default judgement

[ostell]

I have a claim outstanding against a large company. they acknowledged the claim thus giving the time to get the defence to court to 28 days after service, this date was last Tuesday 30th. They sent their defence to me and I received it last Friday, 26th, with a covering letter saying a copy was being sent to the court. Today, 3 days after the defence was due in court, I contacted MCOL and asked if the defence had been received. The answer was no. I explained the situation and the agent confirmed that the due date was Tuesday and therefore I could request judgement. And made the comment that someone had got it seriously wrong.

The defence, all 10 pages of it in small font, looks as though it has been pulled together from a series of templates, without much attention being paid to content. Added to this was a set of annexes adding another 20 pages to the bundle. It was more like a witness statement than a defence.

If I'm granted judgement what can they do when they receive the order?

[pt2537]

I have a claim outstanding against a large company. they acknowledged the claim thus giving the time to get the defence to court to 28 days after service, this date was last Tuesday 30th. They sent their defence to me and I received it last Friday, 26th, with a covering letter saying a copy was being sent to the court. Today, 3 days after the defence was due in court, I contacted MCOL and asked if the defence had been received. The answer was no. I explained the situation and the agent confirmed that the due date was Tuesday and therefore I could request judgement. And made the comment that someone had got it seriously wrong.

The defence, all 10 pages of it in small font, looks as though it has been pulled together from a series of templates, without much attention being paid to content. Added to this was a set of annexes adding another 20 pages to the bundle. It was more like a witness statement than a defence.

If I'm granted judgement what can they do when they receive the order?

https://www.civillitigationbrief.com...that-says-not/

[R0b]

Another recent judgment worth considering.

https://www.civillitigationbrief.com...iples-applies/

[pt2537]

Another recent judgment worth considering.

https://www.civillitigationbrief.com...iples-applies/

indeed but here the Claimant has been served with a Defence, it seems one has not been filed,

[R0b]

Not sure if that comment was a disagreement or just a general point PT?!

CPR 12 does state that request for judgment can be made if a defence has not been filed, rather than filed or served.

[Amethyst]

Personally, as they have served you with a Defence I would contact them and point out that the court doesn't appear to have received it and give them notice that you will be requesting a default judgement in seven days if they fail to rectify. It could be the court haven't lodged the defence correctly (Maybe understandably if it's as bad as you say) so it's only fair to give them opportunity…Then if you do after seven days get a Default judgement because they still failed to file or sort the issue with court they are less likely to be able to obtain a set aside and far less likely to get costs of the application. If you just whack a default judgement in now it does seem very likely they would apply successfully to set aside which could drag things out and end up costing more. Just my opinion and more practical than letter of the CPR.

[pt2537]

Not sure if that comment was a disagreement or just a general point PT?!

CPR 12 does state that request for judgment can be made if a defence has not been filed, rather than filed or served.

sorry should have been clearer, trying to multi task.

Right, the point i was trying to make is the Defendant has served a defence and may well have filed one too, we dont know for sure as the Courts are less than hopeless 90% of the time.

If they can show they have lodged a defence, then we lose our judgment and worst could get costs against in any application to set aside. They woud say they served the defence on the Claimant so the claimant knew what the defence was and took an unreasonable point etc.

I get the point that we could ask for judgment but im just thinking its a tricky one if they have filed and served.

[ostell]

So I will just sit and wait. It's been a week since I received that great bundle in the post, which didn't answer any points other than they weren't liable so I would have thought it would have gone to the court at the same time. Without the defence being filed how is the case to advance through the small claims process?

It looked like a trainee's effort so perhaps it has been forgotten. It's not a large sum.

[ostell]

Well, I submitted the request for judgement yesterday morning and a bar was put in place. Next in sequence was Tte defence was recorded as having been received (3 days late!) and a DQ sent to the defendant.

interesting

[ostell]

Going on from this it has been transferred to my local court and I have received the following:




Looks like the judge is not happy but I can't put my finger on it. Or is this just a generic letter?

Could someone explain please.

[R0b]

Can't see anything?

[ostell]

Can't see anything?

It's linked in to an imgur file. Could that be the reason?

I loaded into the non public section of imgur by mistake.

Here's the text (thank goodness for optical character readers!)

UPON the court's own initiative
IT IS ORDERED THAT:-

The following paragraphs set out the Judge's directions for the disposal of this claim. Failure to comply with the directions may result in a party's case being struck out or a hearing having to be adjourned. The party at fault may have to pay costs.

1. This Claim is allocated to the Small Claims Track and the parties are referred to Part 27 of the Civil Procedure Rules and the Practice Direction of that Part for guidance on how the hearing of the claim will be conducted. The parties are encouraged always to try to settle the case by negotiation. The parties are encouraged to contact each other with a view to trying to settle the case or narrow the issues. The Court must be informed immediately if the case is settled.

2. A Preliminary Hearing is required to enable the Court to consider the directions which need to be made in this case because

a) it may be possible to dispose of the claim at such a hearing, it appearing from the papers that the Defendant may have no real prospect of success at a final hearing; and

b) The Judge wishes to consider striking out part or ail of the Claimant's statement of case as it appears to contain no grounds for bringing the claim.

3. The Preliminary Hearing will take place at the County Court at Portsmouth, Courts Of Justice, Winston Churchill Avenue, Portsmouth, Hampshire, PO1 2EB on Tuesday 5 November 2019 at 12:00pm with a time estimate of 30 minutes.

4. Because this Order has been made without a hearing, the parties have the right to apply to have the order set aside, varied or stayed. A party making such an application must send or deliver the application to the Court (together with any appropriate fee) to arrive within seven days of service of this Order.


As I said the judge does not seem to be happy. Any suggestions about what to take to the hearing? I knew I should have started my witness statement a couple of weeks ago!

[Amethyst]

Def not happy .... with either of you - not sure how the Defendant can have no prospect of success defending a claim that has no grounds though...

A Preliminary Hearing is required to enable the Court to consider the directions which need to be made in this case because

a) it may be possible to dispose of the claim at such a hearing, it appearing from the papers that the Defendant may have no real prospect of success at a final hearing; and

b) The Judge wishes to consider striking out part or ail of the Claimant's statement of case as it appears to contain no grounds for bringing the claim.

So you need to defend your claim particulars ( potentially with a view / offer to redraft and apply to amend - but that'd give the defendant opportunity to defend the amended particulars ) Or rely just on the part of the claim that the judge isn't thinking of striking out... you might have to post up your particulars so we can figure it out xxx

[ostell]

The details of claim were:


Claim for over charging for electricity
during 2018, ending December 2018, caused by
erratic readings from a meter that was
replaced as defective in April 2019. The sum
claimed is for the excess consumption claimed
that was over and above the long term
consumption rate prior to the defect
occurring and that similar rate returning
after the installation of a new meter.

New supplier from December 2018 acknowledged
that the the readings were incorrect with the
previous meter and made an appropriate and
acceptable refund to the account.

The overcharge was the subject of complaint
No. 8010439833 to British Gas who rejected it
after numerous exchanges of emails and
letters.

The claim was issued after 3 months of hassle with customer (dis)service and getting nowhere. BG had all the documentation connected to the claim over that 3 months.

Their submitted defence of some 30 pages didn't answer the claim in any way. It was more an exercise in copy and pasting the T & Cs of the supply.

They also agreed to mediation but then didn't contact the mediation people.

[Amethyst]

Did you do it on the moneyclaim online Beta service so the breakdown is separate ? or is that it? ( no offence meant there btw)

So, your claim is for a refund of monies already paid to BG because they had invoiced you on meter readings obtained from a defective meter.

You have said 'for overcharging' but haven't actually said that said overcharged sums have been paid, or the periods you are claiming for, how much the overcharge is etc. Presumably you went through all that in preaction and complaint letters ?

How have you determined at what point the meter became defective ?
How have you shown that the rate of consumption didn't physically change significantly between the comparable periods despite the meter reading saying it had ?
Do you have a report from the supplier that replaced the meter and deemed it defective ? Were they able to recalculate what the final meter reading with the previous supplier should have been ?

Your witness statement can bring things together, at least you know now that your claim is at risk from a strike out so can try assist the judge to understand the claim ( exhibit all the previous correspondence and spell it all out )