Advice needed urgently

[octet]

Re: Advice needed urgently

Rightio, my heads all full of tuning and torques now... lol

Soooorrry! :lol:

I can't say whether you have a good case, simply because I don't know anything about mechanics ( though I will ask my other half to look in later on) but you have explained and detailed the issues, and evidenced them. I don't think there is an issue with your case other than your POCs are a bit vague - rather than defending they have decided to attempt to strike you out on a technicality. I'm not convinced they will succeed if you make a Witness Statement in response with copies of the pre-action correspondance as that clearly breaks down the amount you are claiming. The Judge may simply order you to file amended POCs, but belt and braces approach would be to file an application to amend.

Are you able to help me on drafting the Witness Statement please?

Couple of Q's.

1. The email that states nothing to be done without contacting you first wasn't sent until after you dropped off the car. ( car dropped at 10am email sent over 2 hours later)

the wheelgate? boxes - they don't say 5.8 on them ?

1. Correct, but we agreed verbally while I was there and while I've given a lift to the train station by the man himself

2. The wastegates showed 5.8psi = 0.4 bar

[Amethyst]

Re: Advice needed urgently

2. The wastegates showed 5.8psi = 0.4 bar

ahhhhhh ( like I was going to know that ! )

I'm just playing devil's advocate picking holes in the case btw so you know to counter things.

The email you sent - was that before or after the telephone call ? and the telephone call was made after he'd already buggered things up?

and I'll give you a hand yes - you have a good start in that first letter you sent and in your solicitors later letter.

Your witness statement basically wants to say that you object to the striking out of the POC as you were limited filing through MCOL ( I'll get a reference in a tic) and there was extensive pre-action communication.

In small claims you should be able to get away with it - it is a good sign that the Judge is having a hearing for the application btw, as they applied for without a hearing.



For ref.

16.4

(1) Particulars of claim must include –

(a) a concise statement of the facts on which the claimant relies;

(b) if the claimant is seeking interest, a statement to that effect and the details set out in paragraph (2);

(c) if the claimant is seeking aggravated damages(GL) or exemplary damages(GL), a statement to that effect and his grounds for claiming them;

(d) if the claimant is seeking provisional damages, a statement to that effect and his grounds for claiming them; and

(e) such other matters as may be set out in a practice direction.

(2) If the claimant is seeking interest he must –

(a) state whether he is doing so –

(i) under the terms of a contract;

(ii) under an enactment and if so which; or

(iii) on some other basis and if so what that basis is; and

(b) if the claim is for a specified amount of money, state –

(i) the percentage rate at which interest is claimed;

(ii) the date from which it is claimed;

(iii) the date to which it is calculated, which must not be later than the date on which the claim form is issued;

(iv) the total amount of interest claimed to the date of calculation; and

(v) the daily rate at which interest accrues after that date.

We would point out that the claim was issued via the County Business Centre which is a procedure specifically provided for in the CPR. This procedure only allows a Claimant to insert brief details of the claim and does not allow for the attachment of any enclosures. Paragraph 5.2A of Practice Direction 7E specifically states "The requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online claim form, unless the particulars of claim are served separately in accordance with paragraph 5.2 of this practice direction"

[octet]

Re: Advice needed urgently

Ha ha, no problem at all

Which email are you referring to, so many calls and emails, my head is also spinning around lol.

[Amethyst]

Re: Advice needed urgently

WS looks like

[Amethyst]

Re: Advice needed urgently

The email you sent - was that before or after the telephone call ? and the telephone call was made after he'd already buggered things up?

Ha ha, no problem at all

Which email are you referring to, so many calls and emails, my head is also spinning around lol.

This kind of thing ... ( not for this witness statement but needs to be considered for later on)

At xxxxxxAM on xxxxxxxxxxxxxxxxx I left the car at xxxxxxxxxxxxxxxxxxxxx

At xxxxxxxAM on xxxxxxxxxxxxxxx I received a telephone call from xxxxxxxxxxxxxx stating xxxxxxxxxxxxxxxxxx. We agreed xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

At xxxxxxxAM on xxxxxxxxxxxxxxxx I followed up the telephone call by sending an email to the Defendant stating xxxxxxxxxxx he wasn't to do anything without contacting me first xxxxxx (EXHIBIT A)

[Amethyst]

Re: Advice needed urgently

Oh yes, on the Wheel/Wastegate issue - remember when doing statements further down the line, the Judge won't necessarily know that 0.4 bar = 5.8 psi either xxx

[Amethyst]

Re: Advice needed urgently

Okay let me get a coffee and I'll have a brief draft of a defence to strike app WS so you can add in the details xx

It is entirely up to you whether you go belt and braces and apply to amend - ALTHOUGH you will then need to also write the full particulars of claim that you intend to amend to, before making the app. I feel you are better to defend their app to strike and ask court to allow you to amend at the hearing ( if he so deems it necessary) If he strikes you will have 7 days to apply to set that aside and enter amended POCs.

[octet]

Re: Advice needed urgently

Coffee on me, doesn't matter how many you need!!! Thanks ever so much!!!

[Amethyst]

Re: Advice needed urgently

OKAY this could do with some fine ''tuning'' but hopefully its a good starting point.... it will be rough around the edges as you are a Litigant in Person.



IN THE XXXXXXXXX COUNTY COURT
Claim No. XXXXXXXX

BETWEEN:
OCTET
Claimant/s
- and –
Defendant
FUNKY GARAGE

_________________________________

WITNESS STATEMENT
_________________________________

1. I, OCTET of YOURADDRESS make this witness statement in defence of the Defendant's application to strike out my statement of case at a hearing on 12th February 2016. The facts in this statement come from my personal knowledge except where I have indicated otherwise.
2. I am a litigant in person
3. Following extensive pre-action communication with the Defendant and his insurers (XXXXXXXXXXXXXXXXXXXX) I submitted the particulars of claim in this case via the MoneyClaim online service on XXXXXXXXXXXXXX 2015.
4. On xxxxxxxxxx I sent a letter to the Defendant (EXHIBIT A) xxxxxxxxxxxxxxxxxxxxxxxx which gave full details of the breakdown of the sum claimed.
5. On xxxxxxxxxx I sent a letter to the Defendant's Insurers (EXHIBIT B) xxxxxxxxxxxxxxxxxxxxxxxx which gave full details of the breakdown of the sum claimed
6. On xxxxxxxxxxxxxx I received a letter from the Defendant (EXHIBIT C) which stated xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx (EXHIBIT D)
7. On xxxxxxxxxxxxx I engaged the assistance of xxxxxxxxxxxxx Solicitors and they wrote to the Defendant (EXHIBIT E). They sent a follow up letter on xxxxxxxxxxxxxxx (EXHIBIT F). The Defendant failed to reply and I issued the claim on XXXXXXXXXXXXXXX.
8. Throughout the pre-action period I have disclosed to the Defendant and allowed inspection of all reports and evidence in the case.
9. Since the claim has been issued I have received no communication from the Defendant requesting any clarification or asking me to consent to amend my particulars of claim.
10. I contend that my particulars of claim comply with CPR 16 and disclose reasonable grounds for bringing the claim and I deny the claim is an abuse of process.
11. It appears the Defendant has chosen to apply to strike out my particulars of claim rather than submit his defence to the claim. I would submit that the Defendant's application is an abuse of process.
12. The claim was issued via the County Business Centre which is a procedure that only allows a Claimant to insert brief details of the claim and does not allow for the attachment of any documents Paragraph 5.2A of Practice Direction 7E specifically states "The requirement in paragraph 7.3 of Practice Direction 16 for documents to be attached to the particulars of contract claims does not apply to claims started using an online claim form, unless the particulars of claim are served separately in accordance with paragraph 5.2 of this practice direction.
13. I respectfully request the court allows the claim to proceed and the Defendant should file his Defence within 14 days.
14. Alternatively, should the court consider that my statement of case fails to disclose reasonable grounds on which to bring the claim and do not comply with PD 16 I would respectfully ask the court gives permission for me to file and serve amended Particulars of Claim within 7 days.

I believe the facts stated in this Witness Statement are true

Signed _____________________________
Dated ____________________________

[octet]

Re: Advice needed urgently

Thank you! Let me fill it in and I'll send you a copy via PM for you consideration.

How do I proceed with this, do I just hand it over to the judge on the hearing date or do I send it today to the court and their solicitors? (it would be late anyway I guess)

[Amethyst]

Re: Advice needed urgently

Yip it is late.... really should have been in 7 days before - but you can send it over now ( PDF file with all the exhibits by email is ok ) and take 3 copies with you on the day ( 1 for you, one for judge, one for other side) Just do a cover note it is your WS for the hearing on the 12th.

Might be an idea to put together your proposed amended particulars of claim to take with you as well.

If the defendants are going to play on technicalities you are going to have to be really be strict with yourself on dates and timescales from now on.

[octet]

Re: Advice needed urgently

I'm putting the WS and the exhibit bits together now.

I know I'm asking a lot, is there a chance you could help me with the Particulars of Claims, please?

[octet]

Re: Advice needed urgently

You have PM

[Amethyst]

Re: Advice needed urgently

Ta Having a read now, sorry have been on School run xx

[Amethyst]

Re: Advice needed urgently

I'm putting the WS and the exhibit bits together now.

I know I'm asking a lot, is there a chance you could help me with the Particulars of Claims, please?

Will do xx Have replied to your pm ref adjournment etc.