Hello and help?

[Sothesol]

Hi all, I'm looking for help after filing a small claims defence for a private parking ticket defence and in receipt of claimants Directions Questionnaire. I chard the court as had not received my own DQ who said the defence was struck out due to non return of DQ. I understand I am to complete an N244 however am I to pay a fee for this? It was no fault of my own or do the court consider non receipt of paperwork no excuse? Please direct me to correct area of forum. Thanks in advance.

[R0b]

Hi,

The Civil Procedure Rules under 26.3(7A) say that if a party does not comply by the required date then the court will send them a further notice requiring compliance within 7 days otherwise the defence will then be struck out.

If the Court hasn't issued the DQ or even if it did and you did not receive it, but the court then failed to comply with CPR 26.3(7A), there should be little argument that the defence should be reinstated. Provided you submit the DQ along with your application and evidence, then the court should dispense with the DQ requirement and allocate to the small claims track.

As to application fees, you would be liable to pay which is £255 unless you qualify for a fee exemption due to low income - for more info on this you can follow this link https://www.gov.uk/get-help-with-court-fees

Regardless, an application to set aside the strike out is necessary and the court should check the file to see if (a) the DQ was sent out in the first place and (b) if it was, did they follow up wtih a reminder giving 7 days. If the answer being no to either, your defence should be reinstated.

If the court is at fault you might find it difficult to recover the £255 though you would be well advised to ask the judge that the court should bear these costs since they were at fault and it is inherently unfair for you to incur costs and expenses for something that wasn't your fault, rather it was the court's.

If the judge refuses your request, then you could make a complaint to the court itself and if they do not uphold your complaint then try writing to your local MP who can refer the matter to the Parliamentary and Health Ombudsman to see if they will award compensation. Otherwise, you would have to sue HM Courts and Tribunals Service which is an executive of the Ministry of Justice.

You can read an example where someone was awarded compensation by the Ombudsman below but I am guessing your priority is for the defence to be reinstated.

https://www.ombudsman.org.uk/about-u...-summaries/745

[Sothesol]

Thank you kindly ROB! On it, will update...

[Sothesol]

PS please clarify if you may 'Provided you submit the DQ along with your application and evidence, then the court should dispense with the DQ requirement and allocate to the small claims track.' - is this via form N244 and is the fee still payable in advance even if they decide the reinstate the defence? Thanks again, Sophie

[R0b]

Well your N244 application will need to be supported by evidence through a witness statement, so it would probably be prudent to tag a sentence or two at the end of the WS saying that to assist the court you are providing a completed version of the DQ and ask that the filing and serving of the same is dispensed with i.e. it means you don't have to re-file and re-serve on the other side the DQ as the court and claimant will already have a copy.

Yes fee is always payable in advance. No fee means no application being processed.

In question 3 of the N244, you probably want to say something along the lines of the below:

The court has struck out the defence on the basis that the Defendant did not file his/her directions questionnaire. The Defendant seeks an order to set aside the strike out and reinstate the defence because:

(1) The Defendant never received the Directions Questionnaire from the Court; and
(2) in any event, the Defendant has reason to believe that the Court has failed to comply with CPR 26.3 (7A) in that the Court did not serve a further notice requiring the Defendant to comply within 7 days.

If you want any feedback on your N244 or Witness Statement, I suggest you post up a redacted draft version on here and one of us will try to look at it.

[Sothesol]

And thank you again.