Advice needed urgently

[nemesis45]

Re: Advice needed urgently

Anyone please?

Should I apply for judgement in default considering the Defendant hasn't filed a defence on time as ordered by the Judge, before 22nd of April?

https://www.justice.gov.uk/courts/pr...l/rules/part12

Have you checked with the court to see if a defence has been filed but not yet served upon you?

nem

[R0b]

Re: Advice needed urgently

Apply for judgment I would say, proof of postage provided you still have the tracking number is evidence of deemed service of documents and I see no leg to stand on. The longer you leave it the more time they have to get that defence in.

They will then need to set aside the judgment but will need a pretty good argument for not filing a defence and failed to comply with an order from the judge.

[octet]

Re: Advice needed urgently

Have you checked with the court to see if a defence has been filed but not yet served upon you?

nem

Yes, court said yesterday no defence was filed with the court.

[nemesis45]

Re: Advice needed urgently

Yes, court said yesterday no defence was filed with the court.

I agree with R0b go for judgment.

nem

[octet]

Re: Advice needed urgently

Is this the form I have to file?

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=469

For some reason I can't continue the claim via MCOL, no next step available like you'd usually have, request judgement....

Thanks!

[R0b]

Re: Advice needed urgently

Is this the form I have to file?

http://hmctsformfinder.justice.gov.uk/HMCTS/GetForm.do?court_forms_id=469

For some reason I can't continue the claim via MCOL, no next step available like you'd usually have, request judgement....

Thanks!

That is the correct form yes

[octet]

Re: Advice needed urgently

A bit of over due update on this case. To say I'm disappointed with the legal system it will be an understatement...

First, some chronology:

11/05/2016 - Claimant files N277 application for Judgement in Default as no further correspondence received from the Court or the Defendant

28/06/2016 - Deputy District Judge XXXX orders there will be a judgement for the Claimant for an amount to be decided and the case listed for disposal hearing



29/06/2016 - Defendant files N244 application notice to strike out judgement dated 28/06/2016





08/07/2016 - Hearing ordered for 03/08/2016



05/08/2016 - District Judge XXXX orders the Judgement date 28/06/2016 to be set aside, permission to appeal refused and Claimant to pay Counsel's fee of attending the hearing.



Few things that need considering during the last hearing:

1. Before either myself or the Defendant's Counsel had a chance to speak, the Judge was very adamant that the Defendant appeal to strike out previous judgement had no prospect of success, as the Judgement ordered on 12/02/2016 did not mention "will AUTOMATICALLY be strike out". Judge kept going on and on about it, it seemed at the time the Judge was representing me, the Claimant. I was very happy to hear what the Judge had to say before I even had to chance to speak.

2. Then the Judge allowed the Counsel to speak. He was arguing that the Claimant (myself) was NOT served and that I only filed with the Court, unlike per order dated 12/02/2016

3. It is obviously my fault for not instruction my wife to post the letter with the amended PoC for the solicitors as Special Delivery. It's either a case that Royal Mail failed to deliver the letter or when the Solicitors have received it and saw there was no tracking, they simply did not acknowledge (read binned the letter), again playing technicalities.

4. Considering I am a litigant in person and that I was the one issuing the claim, there for at a loss, I had all interest in the world for this case to go through the court, so there was no reason for me not to bother serving them. Also, considering I am no legal expert and assuming the Defendant was right and I did not serve them in time, the minute I found out they did not receive it, I emailed and electronic copy and also a hard copy via Royal Mail, even if it was outside the time frame, is not like I ignored them and did not care, I've tried my best to help.

5. The Judge said that based on balance of probabilities, I have not served the Defendant, therefore the case is strike out. I'm not too sure how the Judge calculated the probabilities, what I know is I have sent the letter, but I don't have the evidence, being sent as Royal Mail 1st class, rather than recorded.

6. The Defendant solicitors ask for their costs to be paid by myself, but failed to prepare a schedule of costs, therefore the Judge ordered to costs not to be paid by myself: "they are professionals unlike the Claimant and they have failed to file the schedule/requisite of costs, which is ridiculous considering they're applied to strike out the case based on the fact that the Claimant did not serve them. They have to learn their lesson and prepare." <--- something along these lines.

7. At some stage the Judge mentioned they are overstretched and understaffed, therefore will not allow for this to go through the court anymore?!

Some questions please:

1. I'd obviously like to appeal to this last order, what will be the next step to do? Relief of sanctions or what else should I go for? Is this going to stand any chance considering all of the above? I know a relief of sanction need to be accompanied by a witness statement, I will prepare this, anything else I need to consider?

2. How long have I got to appeal, considering the last judgement / order is date 05/08/2016?

Thanks a lot for your help and support!

[octet]

Re: Advice needed urgently

:doggieyes:

[R0b]

Re: Advice needed urgently

21 days to appeal after the date of the decision. Not sure you can be granted relief from santions when the case has been struck out, so the appeal route may be the way to go.

- IT sounds like the judge did not give reasons for the strike out and also reasons such as the the court being overstretched does not (in my opinion) amount to a good enough reason. The case could have been transferred out to another court with more resources.

- When did the defendant notify you that they did not receive the amended POC? February to June is a big gap. If you acted swiftly that could be an argument that no unreaosnable delay had been caused and did not alter the court's timetable

[octet]

Re: Advice needed urgently

Hi R0b,

21 days, that means I have to move very fast, I have until 26th August. The judge mentioned that I might want to make an application for relief of sanctions, hence why I mentioned.

Is there a specific form I need to feel in for the appeal?

The reason the Judge gave was that according to the order made on 12/02/16, I did not serve the Defendant on time, therefore the case was struck out.

Detailed timeline:

01/10/2015 - I, Claimant, issued a claim via MCO.

13/10/2015 - Defendant's solicitors acknowledge the claim

02/11/2015 - Defendant's solicitors seek an order to strike out my claim as the PoC were not clear

15/02/2016 - District Judge orders that the Claimant files and serves amended PoC by 24/03/2016 4pm

22/03/2016 - Claimant files copies of PoC with the Court via Royal Mail 1st Class Recorded and 1 copy to the Solicitors via Royal Mail 1st class (no tracking, a decision my wife took when she posted the letters on my behalf, unaware of the importance of the documents)

03/04/2016 - Defendant's solicitors wrote to me, the Claimant, advising that no PoC received and that they consider the case strike out, letter received on 07/04/2016

07/04/2016 - Claimant emails the Defendant's solicitors an electronic PDF copy of the PoC and also sends another copy via Royal Mail Special Delivery, delivered next day on 08/04/2016

11/05/2016 - Claimant files N277 application for Judgement in Default as no further correspondence received from the Court or the Defendant

28/06/2016 - Deputy District Judge orders there will be a judgement for the Claimant for an amount to be decided and the case listed for disposal hearing

29/06/2016 - Defendant files N244 application notice to strike out judgement dated 28/06/2016

08/07/2016 - Hearing ordered for 03/08/2016

05/08/2016 - District Judge orders the Judgement date 28/06/2016 to be set aside, permission to appeal refused and Claimant pay Counsel's fee of attending the hearing.

So, as you can see, I've acted very quick, I sent an electronic copy via email and hard copy via RM the same day I found out the Defendant did not receive the amended PoC

[R0b]

Re: Advice needed urgently

Hi Octect,

Thanks for the timeline, perhaps you could go down the line of relief from sanctions which will mean an N244 application form and witness statement in support of this. Costs without any fee remission is £255, cheaper than appealing anyway.

The application is made under CPR 3.9 and the court will seek to apply the 3 stage test in Denton v White:

1. Identify and assess the seriousness of the non-compliance. Is the breach "serious or significant"?
2. If it is, why did the default occur?
3. Consider all the circumstances of the case in order to deal with the application "justly", including (a) the need for litigation to be conducted efficiently and at proportionate cost and (b) the need to enforce compliance with rules, directions and court orders.

The potential issue you might have is that the order was an unless order and the court might view that as a serious breach. However, you could argue that once you became aware of the issue you acted swiftly and there was no prejudice nor did it impact on the Defendant responding to the claim.

You could possibly seek to bring your wife as a witness too and state when the Particulars of Claim were sent by post as she was the one who did it. Unfortunately there is no guarantee that you will be successful but there is a possibility given your timeline of events. As harsh as it may sound the courts are becoming stricter when people fail to comply (not saying you did but judge thought you failed) and this includes litigants in person - there is not one rule those who with a lack of knowledge and another for solicitors.

Moral of the story is to always get a proof of postage receipt if you don't send by recorded delivery, especially if you are getting someone else to do it for you. Hindsight is a wonderful thing though

The N244 is pretty straightfoward, so I would work on your witness statement first as this would take the longest. Happy to look it over if you need some assistance.