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BACKGROUND
In 2009 the Claimant (“C”) issued proceedings against the Defendant (“D”). D asked for more time to file his defence. 6 weeks after serving the claim, with no AoS or defence from D, there was a CMC. An Order was made giving D a further 6 weeks to file his defence.
On the day the defence was due C received a strike-out application, no defence. D lost the strike-out. C was ordered to clarify his Points of Claim by a certain date - which he did. D was ordered to file his defence - he filed something called a defence, which was unsigned and undated, but which did not answer the Points of Claim. C served a Request for Further information. D refused to answer it. The Master ordered that he answer it by a further date. When that date came D still did not answer many of the points - and he refused to send the defence to C! Eventually he was persuaded that he had to and when it eventually arrived, about 2 weeks late, it was unsigned and undated - yet again.
Meanwhile D failed to fully comply with disclosure. He eventually produced a handful of documents (most of which we had already disclosed to him in our full lever-arch file). D has control of the files (but C had taken pertinent copies some years ago) so should have produced many more documents than he did. CPR says you must produce documents whether they help or hinder your case. I can’t say he only produced documents that helped his case because they don’t exist but he only produced documents that didn’t hinder his case.
I am telling you this so that you get an idea of why I call D a serial abuser of the CPR.
ANY IDEAS RE QUESTIONS BELOW?
The same parties are party to a further claim issued 28.01.11. That gave D until 14.02.11 to file an AoS. Today C discovered that D filed an AoS a week ago and what he called a “defence”. D did not send either of these documents to C - this is an abuse of CPR.
The “defence” does not answer any of the points of claim. It is a one-page letter to the Court in which D makes sweeping statements about the truth of the claim. D says he can disprove all of it but has said nothing to demonstrate this. C has strong evidence to support his claim.
CPR says you must file a defence within 14 days (or 28 if you file an AoS). CPR does not say (so far as I can see) what sanctions are available when D files a non-defence as is the case here.
Should C issue a Request for Further Information? Can he do this when the “defence” doesn’t actually defend any of the points?
Should C ask the Court to strike-out the defence and go for summary judgment?
Can C show the Court D’s repeated refusal / failure to comply with CPR in the earlier case? Will this encourage the Court to be a little less lenient towards D?
I am asking because it seems that if C goes for strike-out / summary judgment the Court may just give D more time to file a “proper” defence.
If C goes for a CPR P18 Request for Further Information - giving say 4 more weeks - the Court will probably give more time on top of that.
Whatever C does it seems the Court will probably respond by giving D more time to file a defence.
Can D get away with non-compliance with CPR for ever? This is his standard modus-operandi.
Thank you for reading this. Any ideas?
In 2009 the Claimant (“C”) issued proceedings against the Defendant (“D”). D asked for more time to file his defence. 6 weeks after serving the claim, with no AoS or defence from D, there was a CMC. An Order was made giving D a further 6 weeks to file his defence.
On the day the defence was due C received a strike-out application, no defence. D lost the strike-out. C was ordered to clarify his Points of Claim by a certain date - which he did. D was ordered to file his defence - he filed something called a defence, which was unsigned and undated, but which did not answer the Points of Claim. C served a Request for Further information. D refused to answer it. The Master ordered that he answer it by a further date. When that date came D still did not answer many of the points - and he refused to send the defence to C! Eventually he was persuaded that he had to and when it eventually arrived, about 2 weeks late, it was unsigned and undated - yet again.
Meanwhile D failed to fully comply with disclosure. He eventually produced a handful of documents (most of which we had already disclosed to him in our full lever-arch file). D has control of the files (but C had taken pertinent copies some years ago) so should have produced many more documents than he did. CPR says you must produce documents whether they help or hinder your case. I can’t say he only produced documents that helped his case because they don’t exist but he only produced documents that didn’t hinder his case.
I am telling you this so that you get an idea of why I call D a serial abuser of the CPR.
ANY IDEAS RE QUESTIONS BELOW?
The same parties are party to a further claim issued 28.01.11. That gave D until 14.02.11 to file an AoS. Today C discovered that D filed an AoS a week ago and what he called a “defence”. D did not send either of these documents to C - this is an abuse of CPR.
The “defence” does not answer any of the points of claim. It is a one-page letter to the Court in which D makes sweeping statements about the truth of the claim. D says he can disprove all of it but has said nothing to demonstrate this. C has strong evidence to support his claim.
CPR says you must file a defence within 14 days (or 28 if you file an AoS). CPR does not say (so far as I can see) what sanctions are available when D files a non-defence as is the case here.
Should C issue a Request for Further Information? Can he do this when the “defence” doesn’t actually defend any of the points?
Should C ask the Court to strike-out the defence and go for summary judgment?
Can C show the Court D’s repeated refusal / failure to comply with CPR in the earlier case? Will this encourage the Court to be a little less lenient towards D?
I am asking because it seems that if C goes for strike-out / summary judgment the Court may just give D more time to file a “proper” defence.
If C goes for a CPR P18 Request for Further Information - giving say 4 more weeks - the Court will probably give more time on top of that.
Whatever C does it seems the Court will probably respond by giving D more time to file a defence.
Can D get away with non-compliance with CPR for ever? This is his standard modus-operandi.
Thank you for reading this. Any ideas?
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