Disputing Certificate of Service

[jaguarsuk]

Any help appreciated here.

A Claimant has entered a Certificate of Service to the court claiming they have served the Defendant with further Particulars of Claim. However, they have not.

This is not their first dirty trick, they have also sent the original claim pack to the Defendants previous address (luckily a redirection was in place) and they have written in response to a CPR 31.14 request that they intend to apply for Summary Judgement under CPR Part 24.

My question is what can be said to the court or put in the defence to counter the Certificate of Service?

[Diana M]

Re: Disputing Certificate of Service

Is this a claim against you?

It's hard to answer questions out of context so a little more background information would be helpful.

Di

[jaguarsuk]

Re: Disputing Certificate of Service

No not me.

The claimant has corresponded with the defendant at their previous address, but were informed of the defendants current address mid way through negotiating and corresponded with them at the current address, couldn't agree a settlement and so the claimant issued a claim. When they issued it, they sent it to the old address even though the letter before claim was to the new one.

The POC on the N1 form states the basics that can fir in the limited space, but also that a more detailed POC will be sent within 14 days.

The Defendant hasn't had them, but thinking they might be playing silly contacted the CCBC to ask whether the court has them in the hope of getting a copy ahead of filing defence.

CCBC have emailed back stating that a Certificate of Service stating they have served them on the defendant has been filed, but no copy of the actual POC have been filed.

I have advised the Defendant to send an CPR 31.14 request to obtain them ASAP. I think the Defendant should challenge the validity of the Certificate of Service if they can to show the behaviour of the Claimant for what it is. Any Help greatly appreciated [MENTION=87380]Diana M[/MENTION]

[Diana M]

Re: Disputing Certificate of Service

No not me.

. . . . I have advised the Defendant to send an CPR 31.14 request to obtain them ASAP. I think the Defendant should challenge the validity of the Certificate of Service if they can to show the behaviour of the Claimant for what it is. Any Help greatly appreciated @Diana M

Is this a friend or family member?

I'm always happy to help but giving advice via a third party carries a risk (for my firm's insurance).

Di

[jaguarsuk]

Re: Disputing Certificate of Service

Is this a friend or family member?

I'm always happy to help but giving advice via a third party carries a risk (for my firm's insurance).

Di

A Friend and he knows that anything I tell him is per my signature on this forum. Problem is that he’s a bit useless with technology and getting him to post here might be a bit much.

Any advice you give is to me and I would pass on, so I accept all risk of me passing it on and absolve both you and your employer of it for any advice you give.

i mean there’s still an age to file his defence, so if they respond to the Part 31.14 request within the 7 days we should be able to see what they say and it would be nice to challenge the Cert of Service.

If they ignore that request though it would be even better to be able to challenge it.

Thanks.

[R0b]

Re: Disputing Certificate of Service

Strictly answering your question, it would up to the judge to make a finding of fact based on the circumstances of the case.

@charitynjw helpfully posted a thread relating to a case on proof of posting that may assist you in this case: LINK HERE.

The gist of the case was that under S.7 of the Interpretation Act 1978 it was generally deemed that provided you correctly address, stamp first class and posted then it will be deemed served, but it is qualified by the words "unless the contrary is proved". The Trial judge found as a fact that the letter was not received and it was appealed. The High Court dismissed the appeal and suggested that the meaning of 'proved' is to prove on a balance of probabilities i.e. the civil standard of proof. The court went further to say that if there is a deadline for serving the document before a required date, and there is proof that it was delivered either late or not at all, then that would be sufficient to rebut the presumption that it was served.

I don't think the High Court set out a specific test for determining whether the document is received (might need to double check), but I can't imagine it being that high bar to overcome. Simply stating that you never received it might be enough to rebut the presumption and the judge may give the benefit of the doubt, especially if the defendant was in correspondence with the claimants and then there is evidence that they notified them of the change of address. If you are saying that the claim form was sent to the old address (even though the LBA was to the recent one) then on balance, a judge might consider that the POC also went to the old address notwithstanding any argument by the defendant that the Claimant's actions amounts to an abuse of process i.e. more likely than not they were trying to pull a fast one and so should be sanctioned either by strike out/dismissal/adverse costs order.

Have you asked for a copy of the POC from the Claimant or their solicitors? That way you can confirm the address it was sent but also the date of the POC or covering letter. If the date is close to the deadline date you could perhaps make an argument to the effect that it was either served late or, deliberately/mistakenly sent to the old address more likely in a rush to serve on time. In other words, good practice would have been for the POC to have been sent well in advance of the deadline to avoid any issues, though it can still be rebutted on the specific facts.

Just my view of things

[jaguarsuk]

Re: Disputing Certificate of Service

I have told him to ask for a copy of the Certificate before doing anything to see what date they claim they posted them.

Is a 31.14 request a good idea or just dispute service in the defence, then ask the claim struck out on abuse of process?

The envelope the claim form came in has a Royal Mail redirection label to the address the Claimant sent the LBA, so my friend can actually prove that it was redirected.

[charitynjw]

Re: Disputing Certificate of Service

A CPR 31.14 request is for disclosure of documents mentioned in the particulars of claim.

Specific disclosure of other documents can be requested via CPR 31.12.

Other disclosure or questions can be via CPR 18.

[jaguarsuk]

Re: Disputing Certificate of Service

A CPR 31.14 request is for disclosure of documents mentioned in the particulars of claim.

Specific disclosure of other documents can be requested via CPR 31.12.

Other disclosure or questions can be via CPR 18.

The last sentence on the claim form is (paraphrasing) "I confirm I will send a detailed Particulars of Claim within 14 days."

Is this the best course of action, requesting it I mean or is it better to highlight the fault in the defence and ask the claim be ordered struck out?

[Amethyst]

Re: Disputing Certificate of Service

Have you rung the claimant and asked them to send a copy of the particulars that they have filed a certificate of service with the court for, because you ( well your friend) hasn't received them ?

[R0b]

Re: Disputing Certificate of Service

Personally, you shouldn't need to make a formal request for disclosure or even a specific disclosure request.

You should contact them directly and say you never received the POC and you have reason to believe that service of the POC was defective. In any event you should request them to supply a copy immediately or if not, you will draw this to the attention of the court as to their un-cooperativeness which you consider to be unreasonable conduct.

Keep the royal mail envelope, but why was there a redirection label, was a re-direction service set up?

[jaguarsuk]

Re: Disputing Certificate of Service

Personally, you shouldn't need to make a formal request for disclosure or even a specific disclosure request.

You should contact them directly and say you never received the POC and you have reason to believe that service of the POC was defective. In any event you should request them to supply a copy immediately or if not, you will draw this to the attention of the court as to their un-cooperativeness which you consider to be unreasonable conduct.

Keep the royal mail envelope, but why was there a redirection label, was a re-direction service set up?

Thanks for this, no contact has been made between the parties yet because my mate is waiting for the court to send him a copy of the Certificate of Service and I told him not to do anything until I'd had a chance to ask the questions here.

He set up the redirection service when he moved.

[Amethyst]

Re: Disputing Certificate of Service

Easy to get bogged down/tied up in procedure etc - sometimes it just needs a call / email to ask for a copy so you can get on with dealing with the actual claim.

Has he acknowledged the claim already ?

[jaguarsuk]

Re: Disputing Certificate of Service

Easy to get bogged down/tied up in procedure etc - sometimes it just needs a call / email to ask for a copy so you can get on with dealing with the actual claim.

Has he acknowledged the claim already ?

Yes, so once he gets all the details we can figure out what the actual claim is about and then I suppose I'll end up being the one who actually types the defence.

Needless to say he owes me beer!

[charitynjw]

Re: Disputing Certificate of Service

Has a certificate of service been filed at court?

https://formfinder.hmctsformfinder.j...k/n215-eng.pdf