Claimant (cabot financial (uk) limited) missed filing date with the court

[frostyboy21]

Afternoon, I have taken on board the feedback and searched out a template for a skeleton argument. I am aware that there is more to do around the specifics of the claim to include but wondered if you feel this is more relevant and acceptable for submission before spending time to complete further:

IN THE COUNTY COURT AT XXXXXXX
CLAIM NUMBER: XXXXXXX
BETWEEN:
CABOT FINANCIAL (UK) LIMITED
-and-
MR XXXXXXX
SKELETON ARGUMENT OF XXXXXXX /1^st DEFENDANT
Introduction
I am writing to submit this skeleton argument in opposition to the application filed by Mortimer Clarke to lift the stay and grant summary judgment in the Cabot Financial (UK) Limited vs Mr XXXXXXX case.
The primary reason for my opposition is that the letter filed by Mortimer Clarke on 17th April 2023 fails to comply with the court's order to provide a witness statement as to why the stay should be lifted, by 6 December 2022.
Non-compliance with a court order is a serious breach that requires relief from sanctions in accordance with the Denton Principles. The case of Denton v TH White 2014 establishes that the court should assess the seriousness and significance of the failure to comply with any rule, practice direction, or court order.
In this case, the failure to provide a witness statement has caused material prejudice to myself as the defendant, and the non-compliance is entirely without any good reason.
In support of my argument, I will rely on the following documents and authorities, and are provided as part of the hearing bundle:

1. The Civil Procedure Rules (CPR) Part 32: Witness Evidence
2. Denton v TH White 2014 EWCA Civ 906
3. Andrew Mitchell MP v News Group Newspapers Ltd [2013] EWHC 2355 (QB)
4. Gray v Toner [2019] EWCA Civ 257

The Issues

1. Compliance with Court Order and Relief from Sanctions
   1. Whether Mortimer Clarke's failure to comply with the court's order for a witness statement justifies relief from sanctions.
   2. Whether the absence of a statement of truth and other information in Mortimer Clarke's letter constitutes a serious breach under the Denton Principles
   3. Whether there is good reason for Mortimer Clarke's non-compliance with the court order and if it caused material prejudice to the defendant
2. Stay of Proceedings
   1. Whether the lifting of the stay of proceedings is routine and administrative
   2. Whether a court case ruling from last year requires relief from sanctions in accordance with the Denton Principles for the stay of proceedings
   3. Whether the letter provided by Mortimer Clarke addresses the requirements of the Denton Principles
3. Abuse of Process
   1. Whether Mortimer Clarke's admission that they did not have all the relevant information at the time of issuing the claim constitutes an abuse of process
   2. Whether the stay of proceedings during the COVID pandemic between 2018-2020 is an abuse of process
   3. Whether the defendant's right to rely on a limitation defence was deprived due to the stay of proceedings
4. Summary Judgment
   1. Whether summary judgment is suitable given the complexity of the issues
   2. Whether the matter should proceed to trial instead of summary judgment

The Facts

1. Mortimer Clarke's letter, dated 17th April 2023, fails to comply with the court's order that a witness statement be provided as to why the stay should be lifted. The letter is also signed by Mortimer Clarke instead of an individual, which is a requirement of Part 32 of the Civil Procedure Rules.
2. Non-compliance with a court order requires relief from sanctions in accordance with the Denton Principles.
3. There is no good reason for the claimant's failure to comply with the court order. It has caused material prejudice to the defendant, Mr XXXXXXX, as he has not had enough time to review the material and file a witness statement opposing the application as per the court order.
4. The importance of complying with court orders is emphasised in the following cases: Andrew Mitchell MP v News Group Newspapers Ltd [2013] EWHC 2355 (QB) and Gray v Toner [2019] EWCA Civ 257.
5. Mortimer Clarke's argument that lifting the stay of proceedings is routine and administrative is incorrect. A court case ruled last year that a stay of proceedings is deemed a sanction and requires relief from sanctions in accordance with the Denton Principles.
6. Mortimer Clarke admitted in their letter date 17^th April 2023 that they did not have all the relevant information at the time they issued the claim, which is considered an abuse of process.
7. The stay of proceedings has deprived Mr XXXXXXX of the right to rely on a limitation defence, as the debt would have become statute-barred in 2018 at the latest.
8. The COVID pandemic between 2018-2020 is not a valid reason to pause all legal proceedings, as it took advantage of stopping the clock and did nothing to the defendant's detriment.
9. The complexity of the issues raised in the case requires an in-depth analysis of the relevant case law, and summary judgment is not suitable.

The Law

1. Non-compliance with Court Order
   1. Part 32 of the Civil Procedure Rules requires a statement of truth, among other information, to be included in a witness statement. The letter provided by Mortimer Clarke dated 17th April 2023, fails to comply with this requirement.
      1. Part 32 of the Civil Procedure Rules states: "Where a witness statement is required by a rule, practice direction, or court order, the statement must comply with the requirements of this Part and any relevant practice direction." (CPR 32.4)
   2. In accordance with the Denton Principles (Denton v TH White 2014), non-compliance with a court order is considered a serious breach, particularly when there has been wholesale non-compliance from a law firm who should know the rules inside and out.
      1. The Denton Principles state that: "Non-compliance with rules, practice directions and court orders is to be regarded as a serious matter. If a party has failed to comply with a rule, practice direction or court order, it will be necessary for the party at fault to persuade the court to grant relief from the sanction." (Denton v TH White [2014] EWCA Civ 906, para. 24)
   3. In this case, there is no good reason for the claimant's failure to comply with the court order. As the court held in Andrew Mitchell MP v News Group Newspapers Ltd [2013] EWHC 2355 (QB), “a trivial or insignificant breach would not constitute a good reason”. The failure of Mortimer Clarke to provide a witness statement in compliance with the court's order has caused material prejudice to myself, as the defendant, and relief from sanctions should not be granted.
   4. Gray v Toner [2019] EWCA Civ 257 emphasized the importance of complying with court orders and held that a failure to do so would generally be considered a serious breach. It also clarified that the Denton Principles should be applied when considering relief from sanctions.

1. Lifting of Stay of Proceedings
   1. Lifting the stay of proceedings is not routine or administrative and requires relief from sanctions in accordance with the Denton Principles.
      1. "It is well-established that the imposition of a stay on proceedings is a sanction, and that the lifting of such a stay is subject to the principles relating to relief from sanctions." (Times Travel (UK) Ltd v Pakistan International Airlines Corporation [2019] EWHC 3397 (Ch), para. 25)
   2. The claimant’s letter of 17th April 2023 does not address any of the requirements of the Denton Principles.
      1. The first stage of the Denton test requires the court to consider the significance and seriousness of the breach. The second stage requires the court to consider why the default occurred. The third stage requires the court to consider all the circumstances of the case so as to enable it to deal justly with the application, including factors (a) and (b) set out in CPR 3.9(1)." - Denton and Others v TH White Ltd and another; Decadent Vapours Ltd v Bevan and others; Utilise TDS Ltd v Davies and others [2014] EWCA Civ 906

1. Abuse of Process
   1. Issuing a claim without having full information and details is considered an abuse of process.
      1. "It is an abuse of process to start proceedings if there is insufficient material available to support the claim, or if the claim is bound to fail." (Johnson v Gore Wood & Co [2002] 2 AC 1, para. 53)

3.2 The stay of proceedings has deprived the defendant of the right to rely on a limitation defence, and the debt would have become statute-barred in 2018 at the latest.
3.3 Mortimer Clarke's decision to pause all legal proceedings during the COVID pandemic between 2018-2020 is an abuse of process, as it took advantage of stopping the clock and doing nothing to the defendant's detriment.

1. Limitation Period
   1. There is a dispute regarding the limitation period and whether the claim is statute-barred, which requires an in-depth analysis of the relevant case law.
      1. "It is trite law that in all actions for the recovery of money or damages, the Limitation Law applies as a statute of repose and an action which is statute-barred is one which the statute of limitation bars and which no court has any jurisdiction to entertain." - Per J. Obaseki in the case of Okereke v. Nwachukwu (2004) 4 NWLR (Pt.863) 545 at 578, para. D.

1. Submissions
   1. The letter sent by Mortimer Clarke, dated 17th April 2023, fails to comply with the court's order that a witness statement be provided as to why the stay should be lifted.
      1. Mortimer Clarke's letter does not comply with the requirements of Part 32 of the Civil Procedure Rules, including but not limited to the absence of a statement of truth, and other information.
      2. The letter is signed by Mortimer Clarke instead of an individual, which is contrary to the court's order.
      3. Non-compliance with a court order requires relief from sanctions in accordance with the Denton Principles.
   2. Non-compliance with a court order requires relief from sanctions in accordance with the Denton Principles (the case of Denton v TH White 2014).
      1. Non-compliance with a court order is considered a serious breach, particularly when there has been wholesale non-compliance from a law firm who should know the rules inside and out.
      2. The court should assess the seriousness and significance of the failure to comply with any rule, practice direction, or court order in accordance with the Denton Principles.
      3. There is no good reason for the claimant's failure to comply with the court order, and it has caused material prejudice to the defendant.
   3. The importance of complying with court orders is supported by other cases, such as:
      1. Andrew Mitchell MP v News Group Newspapers Ltd [2013] EWHC 2355 (QB): A trivial or insignificant breach would not constitute a good reason for non-compliance with a court order.
      2. Gray v Toner [2019] EWCA Civ 257: A failure to comply with a court order would generally be considered a serious breach, and the Denton Principles should be applied when considering relief from sanctions.
   4. The letter provided by Mortimer Clarke, 17th April 2023, does not address any of the requirements of the Denton Principles.
      1. Mortimer Clarke's argument that lifting the stay of proceedings is routine and administrative is incorrect.
      2. A court case ruled last year that stay of proceedings is a sanction and requires relief from sanctions in accordance with the Denton Principles.
   5. Mortimer Clarke has admitted that their defendant did not have all the relevant information at the time they issued the claim.
      1. Issuing a claim without having full information and details is considered an abuse of process.
      2. The stay of proceedings has deprived the defendant of the right to rely on a limitation defence, as the debt would have become statute-barred in 2018 at the latest.
      3. Mortimer Clarke's decision to pause all legal proceedings during the COVID pandemic between 2018-2020 is an abuse of process, as it took advantage of stopping the clock and doing nothing to the defendant's detriment.
   6. Given the complexity of these issues, summary judgment is not suitable, and the matter should proceed to trial.
      1. There are several inaccuracies in the claim that need to be investigated further.
      2. There are significant concerns surrounding how the claimant has gathered the data and information, which is not addressed in the witness statement.
      3. There is a dispute regarding the limitation period and whether the claim is statute-barred, which requires an in-depth analysis of the relevant case law.

6. Conclusion


Based on the above arguments, Mortimer Clarke's application to lift the stay and grant summary judgment in the Cabot Financial (UK) Limited vs Mr XXXXXXX case should be dismissed. The failure to comply with the court's order to provide a witness statement justifies relief from sanctions in accordance with the Denton Principles, and Mortimer Clarke's non-compliance is without any good reason, causing material prejudice to the defendant.
Furthermore, the issues raised in the case are complex and require an in-depth analysis of the relevant case law, making summary judgment unsuitable. Mortimer Clarke's admission that they did not have all the relevant information at the time of issuing the claim constitutes an abuse of process, and the stay of proceedings has deprived Mr XXXXXXX of the right to rely on a limitation defence. Therefore, the stay should remain in place, and the matter should proceed to trial.
Considering the above, I respectfully ask the court to dismiss Mortimer Clarke's application and grant the relief sought by the defendant, Mr XXXXXXX
XXXXXXX
Defendant
20^th April 2023
Links to supporting documents mentioned through Skeleton Argument:

[R0b]

Sorry I have only just saw your post but I haven't had a chance to read it fully, though I did cobble together a very very quick example which I have attached. You can use the document as the base because the formatting is all correct for a skeleton argument. Note that the document is set up with word styles for the numbering in the document to ensure consistency - L1 to L4 are the main numbering styles plus the Heading 1 style and then for underlined sub-headings I have simply used the normal style and the underline option. You might be wise to keep using it but if you don't know how to let me know and will try to explain.

Also I have attached a bundle index sheet which should usually go to the front and list out all the items in the bundle. In your case and given the short timeframe I would probably include your skeleton and the relevant cases you refer to. A couple of other points to note:

- Your electronic document bundle needs to be a single PDF document. I would title the document like Trial Bundle - Claimant name v Defendant Name (Case No. XXXXX)

- the bundle needs to be paginated e.g. 1,2,3,4 and must match the name page number referenced in the index. You can easily do this when you have combined your PDF as a single document by using PDF editor software or there are free online versions that can create page number. Bottom right corner is usually standard practice and make sure the numbering is large enough to read without squinting.

- Case authorities should be in full, but you may get away with using the first page e.g. the heading of the case and then the relevant pages that you are wanting to refer to. If you do that, it would be helpful to point this out in interests of costs and keeping the bundle to a minimum, and say that full copies of the authorities can be provided at the hearing.

- You should be able to get most of the authorities by using BAILII website. If you're struggling let me know and I will try to find them.

- When it comes to filing the bundle, again in the interests of time you have, I would send an email to the correct court email address (check the same one that MC sent an email to) and make sure to copy MC in as well on the email. The subject line should read something like: Urgent - Bundle for Defendant in Claimant Name v Defendant Name - Hearing Date XX XX XXXX at XX:XXam/pm. A covering email to say please find the bundle attached and ask that this is placed on the file as a matter or urgency ahead of the hearing on Monday.

Sorry there is a lot of information here and probably quite a bit to do, but the main thing is making sure the bundle and all rleevant case authorities you want to refer to is included. You can then use your skeleton argument as a baseline to put your submissions to the court, some of which you might have to think on your feet if you are questioned or challenged on something.

It's possible I've missed something off as this is all a little rushed but I will let you know if I think of something.

[frostyboy21]

Good morning,

I just to make you aware, the court has just called to inform me that the hearing has been vacated, and a new court order will be raised, so allows a little further time for me to finalise the defense.

Best wishes

[R0b]

Good to hear, a little breathing space but I would try and refine it as soon as possible than leave it to the last minute.

Regarding your PM you sent to me, I define the Claimant and the Defendant as ("C") and ("D") but it is not necessary to do that. It is just shorthand instead of keep saying the claimant or the defendant. Alternatively if you want to define the claimant as Cabot then you can do that so the first time you refer to the claimant you then define it in speech marks.

For example, This is an application by the Claimant ("Cabot") or This is an application by the Claimant ("C") and in each case you refer to the defined term throughout the document. Phrases wrapped around speech marks in parentheses are used to define things so it is easier to reference throughout the document, which you will find quite a lot in contracts.

The same applies if you want to refer to the contract or legislation by saying something like, The contract was for a credit card account with an initial limit of £500 (the "Contract"), which was subject to the Consumer Credit Act 1974 ("CCA 1974").

How you define things is up to you but as I said, it is not necessary to do that.

[frostyboy21]

Good to hear, a little breathing space but I would try and refine it as soon as possible than leave it to the last minute.

Regarding your PM you sent to me, I define the Claimant and the Defendant as ("C") and ("D") but it is not necessary to do that. It is just shorthand instead of keep saying the claimant or the defendant. Alternatively if you want to define the claimant as Cabot then you can do that so the first time you refer to the claimant you then define it in speech marks.

For example, This is an application by the Claimant ("Cabot") or This is an application by the Claimant ("C") and in each case you refer to the defined term throughout the document. Phrases wrapped around speech marks in parentheses are used to define things so it is easier to reference throughout the document, which you will find quite a lot in contracts.

The same applies if you want to refer to the contract or legislation by saying something like, The contract was for a credit card account with an initial limit of £500 (the "Contract"), which was subject to the Consumer Credit Act 1974 ("CCA 1974").

How you define things is up to you but as I said, it is not necessary to do that.

Thank you so much for this. Sorry for some reason my original reply wasn’t added to the conversation.

Definitely some breathing room, which I am grateful for. I thought I would share the body of the court order received over the weekend, which gives the claimant 2 weeks to respond, and I would expect a more comprehensive response than original letter.

It is ordered that
1. Unless the Claimant complies with paragraph 2 of the order dated 15 November 2022 by 4:00pm on 5 May 2023 the claim shall stand struck out.
2. The hearing on 24 April 2023 is vacated.
3. This order has been made by the court of its own initiative under the provisions of Rule 3.3(4) of the Civil Procedure Rules 1998. You have a right under Rule 3.3(5) to make an application to have it set aside, varied or stayed. Any application under Rule 3.3(5) must be made not more than 7 days after the date on which the order was served on you.

In addition, I guess the original defence I was putting together made might become redundant, given the order.

Have a good week.

[R0b]

Well it's nice for the court to actually follow through what it asked for and not accept what these low level firms try to push it and avoid spend time doing what it is being asked for. Will be interesting to see whether the witness statement comes in the name of someone at MC or Cabot.

If that's the full extent of the order then I would probably work to the previous order with you preparing a witness statement rather than a skeleton argument, which you can also do as well but focus on the WS first. It may be that the court will make a further order setting a date and for you to file and serve your WS before the hearing date or the court may make no such order but whatever the case, it would be sensible to file one anyway so you can submit any evidence you have.

In the meantime, now is a good time to probably submit a subject access request to Cabot and to MC and find out what information they hold about you. It would be wise to include a copy of ID and a utility letter to avoid delays with them replying back saying they need this before they can start the process. They will have 1 month to reply.

[frostyboy21]

Absolutely, makes a change. Will wait to see what MC come back with.

I will work on the previous order, and look to prepare the witness statement, and also submit a subject access request to both Cabot and MC as suggested.

Thanks again

[frostyboy21]

Good afternoon,

Just to keep you updated. I have received new communication from MC in relation to this, and they have just re-submitted all previous documentation, including the letter I shared, which is signed by MC rather than an individual, alongside the original hearing documentation. Subject Access Request is in and awaiting information from them. I am well on the way to creating a witness statement to submit.

Thanks