Small claims procedure for default judgement

[ostell]

The PoC looked so obvious when I wrote it out. Yes I have all the correspondence, I was just getting round to putting it in a witness statement.

Yes I can show that the consumption just prior to the alleged start of failure was about 12 units per day, then varying to between 5 and 50 during the period in question and returning to a consistent less than 10 units per day for the 5 months after the meter was changed. The last bill from BG gave, for a short period, a consumption of 110 units per day.

Is it worth writing an amended PoC and sending to the court (and defendant).

I note the comment that the parties should get together. Both the defendant and I ticked yes to mediation but the defendant didn't even bother to contact the mediators. I have this in an email from the mediators. Is it "polite" to mention this?

The obvious fault was that the display was fading and becoming unreadable. Installers comment was that "Display Broken" . I believe this was one symptom of an internal fault within the device that also affected recording.

[R0b]

It does look like you have used the Money Claims Online service rather than the beta service, based on the number of characters you've used for your PoC. Couple of points to note that might help you in future claims:

a. When you get to the page about drafting your PoC, there is the option to tick a box that says you will provide detailed PoC within 14 days of service of the claim form. I always tend to opt for that because of the character limit in the MCOL system of 1080 but it also gives you freedom to provide more details of your case and put forward a stronger claim.

b. Even if you didn't choose to tick the detailed PoC box, you also have the option to file and serve a reply to the defence. Again, whilst not compulsory, it does allow you to address the points raised by the defence not contained in the PoC and then enable you to provide fuller explanations.

Either of the above options could have alleviated the judge's irk but you are where you are now, best not to dwell on it. I think there's a few things that could be done, though it is entirely up to you how you want to approach it:

i. Draft a more detailed PoC setting out the background, the cause of action, breach and remedies you are seeking. Rectifying the issue before trial can sometimes help persuade the judge not to strike out your case, and it would allow the defendant to have sight before the hearing, though they would probably argue that they want to amend their defence in light of new pleadings - costs could be an issue however you could argue that both parties to blame so no order to costs.

ii. Contact the defendant, explain that you've received the directions from the judge and note there is to be a preliminary hearing to consider both the claim and the defence which is at risk of being struck out. You could point out that you agreed to mediation but due to their failure of not contacting the mediation team, it didn't go ahead. Whilst you are confident you have a good case to argue and there is a reasonable prospect of success whereas their defence fails to address the claim at all, you are prepared to discuss settlement without the need to attend trial. If they don't agree or respond, then it could also be worth asking them to agree before the preliminary hearing, a list of issues for the judge to consider (see below) and attaching what you've drafted so far on that.

iii. One option which the judge may appreciate is to draft a list of issues signed by both parties agreeing to the issues to be considered by the court. Even if you don't hear back from the defendant you can still put this in front of the judge, he/she can then consider next steps and get a feel about what the case is about. I've knocked up a very quick example of how you might set it out, there's no specific way (see below). If you can complete the defendant's comments based on what they've said in their defence that would be useful even if they didn't sign it otherwise leave blank and get them to complete.




Obviously we don't know why the judge has felt the need to consider a preliminary hearing for striking out either claim or defence, but there could be a few things you can try to anticipate.

• Well, you can try to say that you made the claim through Money Claims Online which has a maximum character limit of 1080 so there is limited space for you to provide a full particularised claim - see page 9 of MCOL User Guide which you can take to court (click here). Note, however, what I said about the option to provide detailed particulars.
• You could argue that the striking out of a claim is a draconian measure and should only be used as a last resort, as it well established by case law (click here for analysis of that). Credit should be given for the fact you have taken steps to remedy the court's concern through detailed PoC and/or list of issues.
• If you have an opportunity to attack the defence then use it to your full advantage. Only you know what's contained in those 30 pages but you could argue it appears to be a regurgitated template response that doesn't address the claim in any way, and so there is no reasonable prospect of successfully defending the claim at trial.
• One option you could suggest as a way to avoid striking out your claim (which you could repeat as being a draconian measure) is to suggest to the court that the claim should be stayed for a period of one month to allow the parties to engage in meaningful settlement discussions. This would be in accordance with the overriding objective and if no settlement is agreed then the parties must report to the court for further directions.

Can't guarantee that any of the above will work but a combination of attempts would serve useful if you wanted to have the strike out set aside or appealed, there might be some leniency for your efforts.

[ostell]

Thanks Rob. Yes it was the limit of the MCOL site. However I had been arguing with them for some 3 months and they knew exactly the what and the why of the claim. I would hope that would help.

The defence didn't address anything of the claim, just regurgitated t&cs. I think their solicitor must have been paid by the word and were going for max profit. I did send in a response to the defence.

I'm trying to work out which bit of my PoC he disliked.

I'll contact the defendant to see if they will discuss. And then turn up in court with an expanded PoC.

Here's the mainstay of the claim, a graph of the consumption. Problems started beginning of 2018, Meter changed April 1 2019. rather erratic in 2018

Consumption Graph 01 10 2019.pdf

[ostell]

No response to letters and emails suggesting mediation or similar. And today a copy of the costs summery filed with the court.

[ostell]

Yes, struck out because no prospect of success. The reason he gave was that the meter had not been tested when it was removed and so I could not prove it was faulty. I thought it was balance of probability! Hey, the consumption rate dropped back to the 2017 rate from the moment the meter was replaced.

The defendant claimed for costs but was reminded that this was small claims. However I have to pay one third. Very annoying but it has cost the defendant a lot more.

I was lectured on probability