Defendant wants my claim that was served in England heard in Scotland

[Girl Friday]

Hi Everyone

This is my first time on here.

Please can you give some help and advice? I will try to be brief but it has become quite complicated:

We are a small building company and we are in the process of claiming for payment of an outstanding invoice from one of our past customers.

In March 2018 we filed a claim in the English Courts for a sum not exceeding £10K. In July 2018 as we had not received anything from the court or the defendant we filed for a default judgement. Around the same time we were made aware that the defendant's first name was incorrect, he always uses his second name and we believed we had his first name correct at the time. We applied to have the name corrected and this was finally done earlier this year.

As we had heard nothing from the court after the correction regarding the judgement request I emailed them to ask where we were with it as we had still received no defence. We heard nothing after four weeks so I wrote again asking if they had received a defence and heard nothing back.

Several weeks ago the court issued form N149a – Allocation to Small Claims track stating that this was now a defended claim and we should complete form N180 – Directions Questionnare. (DQ)

I immediately rang the court and spoke to their Civil Section and told them again that we had not received a defence from the defendant and asked if they had. I was told that they had not. I was then told not to complete the DQ as we were not in a position to proceed and they would send the file back to the judge for directions on how to proceed and that I should wait until we heard further from them.

Today I received a letter from the court telling me that the defendant had written to the judge in September last year airing several grievances about the courts actions. A copy was enclose for us. In this letter he has told the court that he did not want to communicate directly with us as he did not want us to know his new address, in Scotland, and also accused us of harassment. (This is untrue as the only correspondence we have ever sent him is requesting payment of the invoice and asking him to tell us why he will not as we would be happy to sit down with him to try and clarify any queries and if necessary rectify them.) Within this letter he has also written his defence. This was clearly not picked up by anyone and to be fair it does just look like a letter to the judge and is not clearly shown as his defence.

The letter recieved today from the court was written on 3 July and our DQ was due to be filed no later than the 4 July so it is already overdue by one day through no fault of our own because we were waiting to hear from the court. We are told in the letter that following the resubmission to the judge for directions the judge has decided that the letter sent to the court in September is his defence and today therefore was our first sight of a copy of this letter/defence. The court told us in the letter received today (5 July) that I must get the DQ in by 4 July if there are not to be sanctions against us.

As I understand court procedure the Claimant normally has 14 days from receipt of the defence to file the DQ and through no fault of ours we have only just had sight of the defence. I think, not unreasonably in my view, that we would like a little time to consider what points the defendant has made. Surely the ‘clock should start ticking’ from the time we receive the defence as it would for anyone else. As it is Friday today the earliest I can contact the court is Monday. Does anyone have any experience of whether or not we will be granted an extension or at least acknowledge that it would be unreasonable to apply sanctions?

In the DQ we have from the defendant to us he says he wants the claim heard in the Scottish Courts. (We filed the claim in England). We are in the south of England so do not really want to travel to Scotland if it can be avoided but more importantly in the Scottish courts the maximum sum a claimant can make appears to be £5000 for what is termed a ‘simple case’. If the claim is heard in Scotland we would instantly loose £5k of our claim and we also are not as familiar with any quirks of the Scottish law governing our case. In the run up to us making the claim the defendant was clear that we should write to his old address as he still owns the property and it is also the address for all correspondence as shown at Companies House as he is the director or several companies. The court agreed at the time that the claim could be served at that address. The building work we carried out for the defendant was done in England.

I have been a little concerned very recently that we may have filed our claim in the wrong jurisdiction but now feel we are correct because apparently if the defendant had wished to challenge this he should have acknowledged service of the claim and sent in a form N9 to challenge jurisdiction and he has not done so.

So I have four questions:

1) Does anyone have any advice on how to approach the court on Monday morning about over running the court deadline of 4 July to submit the DQ?

2) Can I object to having the claim heard in Scotland, for the reason outlined above, and how do I go about this?

3) How do I get a Without Prejudice letter we sent to the defendant discussing an offer withdrawn by the defendant. ( A copy of said letter was sent to us along
with the N149A - Allocation to Small Claims Track)?

4) Can a witness statement be sent in prior to any hearing to challenge his allegations of harassment as we are very angry at this distortion of the facts?


Thank you for reading this and I look forward to any advice you can give.

Last edited by Girl Friday; Today, 21:09:PM.

Tags: None

• Thank Post
  0

[Amethyst]

Ok - return the Directions Questionnaire saying YOUR local court or alternatively a court halfway between you and the defendants registered company address. Reason that he is a business and you are an individual.

Have you filed the claim against the business or against him as an individual ? If your original contract was with the company then your claim should be against the company.

Witness Statements will be ordered after the case has been allocated to a court.

Not it sure why the court sent you this WP letter - it sounds like the defendant has no clue how to deal with court procedures judging by events to date. Once allocated you can ask the court discount any WP communications filed as 'evidence'.

[Girl Friday]

Hi

Thank you for replying.

Apologies, maybe with hindsight some of the 'background' info in my post was rambled .

To clarify : The defendant in this case is the 'individual' ( but he is also a company director of several businesses) and we are the company/claimant. We are a small building firm and I am handling the claim on behalf of our company. We carried out building work for him in England in his capacity as an individual. We telephoned the court before sending in the claim and they confirmed that as he had previously instructed us to send all correspondence to his address in England even though he lived in Scotland it would be in order to serve the claim in England.

I think you might be right about him being unfamiliar with court procedure but he is also a 'slippery piece of work' so he might, in his mind, be attempting to gain advantage. I have no doubt that as he was moving to Scotland, unbeknown to us, he has used this to avoid paying a substantial final bill and the crux of his argument is unhappiness with the price of items he previously okayed before commencement of work and has paid 97.5% of already without complaint.

He did not send in a defence within the 28 days allowed but wrote a letter to the judge several months later, September, to complain about the court apparently disclosing his Scottish address to us when he had asked them not to, citing our 'harassment and threats' as the reason. In that three page letter about halfway through he 'lodges his defence' and it seems included a few letters and part of a contract to support it. None of this was sent to us when the court received it last year hence my banging on to the court at intervals to point out that we had not had a defence from him. When I spoke to the Civil Section of the court late last month they told me that nothing had been received by them either and would therefore pass this claim on to the judge for urgent further directions.When the judge looked at everything again s/he ruled that the letter sent in September was his defence.

This decision, with a copy of the defendant's letter of September but not the evidence, was conveyed to us by first class post on 3 July. The existing Directions Questionnaire was due in on 4 July but during my earlier telephone call I was told to wait until we recieved the courts further instructions before sending it in. These new instructions reached us on 5 July - so already too late to comply with the cut off date for the DQ. Sanctions were threatened in the letter if we were late which seems unreasonable in the circumstances.

You appear, in reply to my second separate post, to confirm that even though the procedure has not been carried out correctly all of the documents that accompanied what has now been accepted as his defence should have come to me also. If I do not have them then in my view I have an incomplete copy of his defence and am not ready to continue with the DQ.

I also now understand that we can send in a witness statement after allocation of the court this will be heard in, (we are still anticipating it will be Small Claims) . We are keen to do that because we wish to address the claims of harassment and threats he has made to the judge in his letter.

(If writing to him several times over the course of six months requesting that he pay our invoice - with an invitation to discuss any concerns he might have and a warning from us to the effect that a dismantled shed we were storing for him, free of charge, as a favour, ( ie not part of our contract with him), would be returned to him and left on his front lawn in ten days if he did not give us the alternative instructions we had requested twice previously following completion of the contracted work is 'harassment' and 'threatening' respectively then I guess we are culpable but I suspect most reasonable people would not construe these things as such. In other words we have not threatened to 'send the boys round'. We are not cowboy builders and we have enjoyed a good reputation in our area for over 40 years.)

I have taken out a couple Small Claims over the years which have proved much more straight forward than this one on behalf on the company but do not recall ever being ask to submit a witness statement therefore I have never done so. Can I just sent one in uninvited, as it were, if not instructed to do so?


Lastly, to confirm, it seems a simple letter to the court asking them not to include WP letters will suffice with no need for a form N244 from us?

Thank you for your time and knowledge.

[Girl Friday]

Hi


The defendant has been a nightmare to deal with and decided that he was not going to follow the set procedures to respond to my claim. Instead of submitting his defense within the allowed 28 days he was weeks overdue and then wrote a letter to the judge complaining about the some perceived problems he had with the court administration dept. but also included his defense in the letter and submitted some documentary evidence . In the meantime I was regularly contacting the court to tell them that I had not received his defense. Last week I was told that the judge had ruled that the letter the defendant sent some time ago now could be accepted as his defense. During conversations with the court over the past two or three days it has come to light that he has also sent quite a few items of documentary evidence to the court, none of which I had seen, and so copies were passed to me by the court. Included in this evidence are copies of without prejudice letters but also another letter he wrote to the judge which among other topics revealed the contents of a WP letter I wrote several months ago in which I made an offer to settle and he tells the judge about this letter , how much the offer was and provides a copy.

I know how to deal with getting the actual WP letters themselves removed but I am not sure what to do with the letter written by the defendant to the judge. It is not itself a WP letter it only makes reference to a WP letter. Do I get an order to redact those parts of the letter that refer to my WP letter or do get an order to have the whole letter removed from his evidence?

I look forward to any advice you can give me.