Small Claim Struck Out - can I appeal for reinstatement?

[Birkenshaw]

The claim was struck out because I did not give defendent notice that I could not attend hearing.

In the court directions it stated I had to advise the court in writing if I could not attend and this I did within the timescale set down. There is no instruction anywhere in the direction to advise the defendent and hence I feel it has been struck out unfairly.

Throughout the proceedings I carried out directions as set down & within timescales. The court initially suggested the matter be dealt with by mediation & I had suggested / offered this to defendent several times before I even took the claim to court. My messages were all ignored and defendent refused court mediation service. I submitted a bundle of 100 pages of evidence (and sent a copy to defendent) - photographs, emails & messages between myself & defendent together with chronology of the case all page numbered and cross referenced to points made. The defendent submitted nothing & did not exchange and evidence or documentation.

Can an I request the case be reinstated or appeal the decision to strike out as I was not told I had to advise defendent that I could not attend court due to work commitments.

[thedirtyhound]

Re: Small Claim Struck Out - can I appeal for reinstatement?

When you bring a claim against somebody, you have to be 100% serious about it. That means being there on the day of the hearing, unless you have a blinding good reason for being unable to do so. With respect, going to work doesn’t really count as one, unless it was for the strongest of reasons. For example you are a heart transplant surgeon and a donor heart suddenly became available for one of your patients, and only you can do the operation. I hope you get my point.

Court hearings are usually set for several months away, so you get plenty of notice as to the date of the hearing. Occasionally gaps come up in the court lists when cases are settled and hearing slots are vacated, but the minimum notice period is always three weeks, as the process for exchanging documents is set for no less than 14 days prior to the hearing.

So you would have had more than enough time to make arrangements, including taking either a half day or full day off work. You also get the opportunity to inform the court beforehand of dates when you are unavailable.

It looks as though the other side was there, so they obviously took the matter seriously.

You also say that the other side didn’t file documents or a witness statement. There is no obligation on them to do either. You have to prove your claim; they don’t necessarily have to disprove it.

Most judges will treat the defence as the defendant’s witness statement, especially if it is detailed enough, but there is no obligation on them to file any documents. They can simply refer to the documents that you have filed, unless they have something additional that adds to the merit of their defence. So the defendant did absolutely nothing wrong in that regard.

You seem to now be blaming the court for apparently not telling you that you needed to tell the defendant that you could not attend. Why is that the court’s fault? If you bring claims, you are expected to know the rules. If you played football and handled the ball, would you blame the referee for not telling you beforehand that you were not allowed to use your hands? You would be expected to know that before you took to the field. The referee is the referee, not a coach.

Generally these days we have the culture that something is always somebody else’s fault. Personal responsibility seems to have gone out of the window.

There is, I believe, a fundamental difference in a claim being struck out as opposed to being dismissed. If a claimant fails to show, a judge may simply strike out the claim without hearing it. Alternatively, he/she may proceed with the claim based on the documents and witness statements provided. If the decision goes against you and the claim is dismissed, it is much more difficult in that situation to do anything about it.

The best course of action now is for you to send the notice from the court to a solicitor and get proper legal advice about what, if anything, you can do next. There is a slim chance that your claim isn't dead in the water, but it will now become far more costly for you than it would have done had you attended on the day, so you also need to take that into account.

[Amethyst]

Re: Small Claim Struck Out - can I appeal for reinstatement?

[MENTION=109701]Birkenshaw[/MENTION] - do you have a copy of the court directions on which you relied when informing the court ? and subsequent strike out order ? - there should be an option to apply to vary/set aside the order ( apply for relief from sanctions ) normally within 7 days of the order - you will likely have to pay the costs of that missed hearing regardless of whether you go on to win the case.

This is the relevant CPR on attendance for reference

Non-attendance of parties at a final hearing

27.9
(1) If a party who does not attend a final hearing–
(a) has given written notice to the court and the other party at least 7 days before the hearing date that he will not attend;
(b) has served on the other party at least 7 days before the hearing date any other documents which he has filed with the court; and
(c) has, in his written notice, requested the court to decide the claim in his absence and has confirmed his compliance with paragraphs (a) and (b) above,
the court will take into account that party’s statement of case and any other documents he has filed and served when it decides the claim.
(2) If a claimant does not –
(a) attend the hearing; and
(b) give the notice referred to in paragraph (1),
the court may strike out^(GL) the claim.
(3) If –
(a) a defendant does not –
(i) attend the hearing; or
(ii) give the notice referred to in paragraph (1); and
(b) the claimant either –
(i) does attend the hearing; or
(ii) gives the notice referred to in paragraph (1),
the court may decide the claim on the basis of the evidence of the claimant alone.
(4) If neither party attends or gives the notice referred to in paragraph (1), the court may strike out the claim and any defence and counterclaim.