Restoring claim after strike out

[Pete Thompson]

Hi

This is quite a lengthy post, but please do take the time to read it, as I really need some assistance with this!

I brought a claim that was issued just within the limitation period. I omitted my address from the N1 and, therefore, attached an application to the N1 requesting that the Court make an order dispensing with the requirement that the address be disclosed.

Due to many issues with the Court regarding my application, the Court did not serve the Claim Form until well outside of the required 4 month period.The Court never provided me with a sealed copy of the Claim Form, nor did it direct that I should serve the same.During the delay between issue and service of the Claim Form, I queried, on several occasions, if the Claim Form had been served on the Defendant. However, the Court failed to respond. At that time, I was not aware of the 4 month timescale involved in service of the Claim Form and particulars of claim; therefore, although the Court's lack of response was frustrating, I had no real concern regarding the matter and just accepted that the Court would deal with it when it was ready.

Some 8 months following issue of the claim, I was ordered to file and serve particulars of claim, which I did. I subsequently became aware that the Claim Form had not been served on the Defendant as yet. Around a month later, the Claim Form was finally served

.The Defendant applied for strike out based upon the fact that the Claim Form and particulars of claim had been served out of time. I was not notified of the Hearing in respect of the Defendant’s application and, therefore, was not in attendance. The claim was consequently struck out.I have now made an application for an order revoking or setting aside the Judgement in respect of strike out and that proceedings be restored.

I have also applied for relief from sanctions and have evidenced my communications with the Court. I have also evidenced that Orders were made outside of the 4 month period referred to above and that these Orders were complied with.

Within my application, I have also referred to CPR 3.10 and have requested that, should the Court consider that there has been any error of procedure, it exercise its power to remedy the same.

My questions are –

1. Can anybody direct me to any legislation, including case law, that may be of assistance to me in having my claim restored?
2. Would it be worth applying for permission, retrospectively, to serve the Claim Form and particulars of claim out of time and is this even an option available to me after strike out?

Really hoping somebody will be able to help me with this!

Thanks

Pete

[R0b]

Re: Restoring claim after strike out

Hi Pete,
[MENTION=6]Amethyst[/MENTION] could provide a response to this, if not I'll see if I can help you out later tonight

[Pete Thompson]

Re: Restoring claim after strike out

Hi Pete,
@Amethyst could provide a response to this, if not I'll see if I can help you out later tonight

Hi R0b

Many thanks for taking the time to read and respond to my post...

I forgot to mention that the Judge also stayed proceedings indefinitely pending provision of an amended Claim Form containing my address for service. This stay was effected around 2 months following issue of the claim and, presumably, was lifted when the Court finally served the Claim Form. Would a stay of proceedings include a stay in respect of service of the Claim Form and particulars?.....If it would, this would presumably mean that the Claim Form was served in time?

I'll wait to hear from you later tonight.....and hopefully from amethyst too.

Thanks

Pete

[R0b]

Re: Restoring claim after strike out

Hi R0b

Many thanks for taking the time to read and respond to my post...

I forgot to mention that the Judge also stayed proceedings indefinitely pending provision of an amended Claim Form containing my address for service. This stay was effected around 2 months following issue of the claim and, presumably, was lifted when the Court finally served the Claim Form. Would a stay of proceedings include a stay in respect of service of the Claim Form and particulars?.....If it would, this would presumably mean that the Claim Form was served in time?

I'll wait to hear from you later tonight.....and hopefully from amethyst too.

Thanks

Pete

Hi Pete, having read your post, it is quite difficult to follow as it is all one big paragraph. Could you provide a timeline of events and where this stay of proceedings fits in? Also why did you omit your address, was this deliberate or mistake? Nce we have a timeline of events it would be easier to give some advice.

As for the strike out and not being aware, do you know if the application for strike out was made with or without notice? In any event the Court of Appeal said in Frey & Others v Labrouche 2014 that the judge in the High Court was fundamentally wrong to dismiss an application without the applicant being able to have an opportunity to present its case orally. Although this related to the applicant, it could equally apply to yourself as the common law principle in that a party should have a right to have his case heard. You did not receive any notice or application from the court and so judgment should be set aside. This argument would be in addition to the correspondence you have on filing and serving the claim/particulars.

You could apply to set aside as your first argument and/or relief from sanctions as an alternative argument.

[Amethyst]

Re: Restoring claim after strike out

Sorry R0b I've only just seen this, I'll pop some paragraphs in and have a read xx

[R0b]

Re: Restoring claim after strike out

No worries, Just to add to my comments above, setting aside should be made within 14 days after strike out has been given by the court otherwise relief from sanctions shall apply. This is found in CPR 3.6

[Amethyst]

Re: Restoring claim after strike out

Okay, did you receive a copy of the defendants application to strike out the claim ?

There wasn't necessarily a hearing - do you have a copy of the order from the court striking out the claim pls. Should have on it about 7 days to vary etc ?

When you submitted the claim and application to withold your address ( did you have an alternative address for service of documents ? ) did the court issue the claim immediately.

Did you file the claim at your local court or the Northampton business centre ?

Whats the basis of the claim ? ( very briefly so we have an idea what area of law we're talking about)

[Pete Thompson]

Re: Restoring claim after strike out

Hi

Thanks again for taking the time to assist me with this.....I'll put together some more info and post it asap.

Many thanks

Pete

[Pete Thompson]

Re: Restoring claim after strike out

Hi

Further info as promised...

1. Claim lodged with CCMCC and issued around three weeks later, but not served in accordance with CPR PD16 2.5, as the Claim Form did not contain Claimant’s address. The address was omitted due to a history of threatening behaviour from the Defendant; however, the address was disclosed to the Court.

2. Two months later claim stayed until the Claimant “…files and serves an amended Claim Form which complies with…2.2 of the Practice Direction to Part 16…and 16.3 of the CPR…”.

3. Three weeks later amended Claim Form filed with the Court, but not served on the Defendant, as the Claimant believed that it was the Court’s responsibility to serve the Claim Form on the Defendant in accordance with CPR 6.4(1) and no sealed copy of the Claim Form had been provided to the Claimant to facilitate service.

4. Several attempts by the Claimant to ascertain if the Claim Form had been served on the Defendant, but no response.

5. Five months later Claimant advised that papers had only just been referred to Judicial Team.

6. Twelve days later Claimant ordered to file and serve on all other parties Particulars of Claim within twenty-one days.

7. Particulars of Claim filed and served on all other parties within twenty-one days.

8. Seven weeks later Claimant received confirmation that Claim Form had been served on Defendant. Claimant was ordered to file and serve signed copy of Particulars of Claim within fourteen days and, for some reason, given permission to amend the Claim Form, which had already been done some seven months earlier. The Court proceeded to state, in respect of the Claim Form, “The same will be served by the Court”, which had already been done that same day. Claimant filed and served signed Particulars of Claim immediately.

9. Three weeks later Defendant made application to strike out claim. The Claimant was not served with a copy of the application, as the Defendant incorrectly detailed on the application that it should be served on the Defendant.

10. One month later a notice of hearing was sent out; however, the Claimant was not served with a copy and so was unaware that the Defendant’s application was due to be heard only ten days later. It is presumed that the Claimant was not notified of the listed Hearing for the same reason that she was not provided with a copy of the Defendant’s application, i.e. the Defendant had incorrectly stated on the application that it should be served on the Defendant.

11. Ten days later the Hearing of the Defendant’s application went ahead in the Claimant’s absence. The Judge struck out the claim and ordered costs against the Claimant.

12. There was a long delay in the order resulting from the Hearing of the Defendant’s application being drawn and served. The Claimant chased the Court on numerous occasions and the Order was eventually drawn and served one month following the Hearing. The Claimant made an application within seven days, requesting -

- The Order be set aside in its entirety
- Proceedings be restored
- The Claimant be granted relief from sanction

If the Judge does not restore proceedings and so the claim remains struck out, the limitation period has now expired and so I would be unable to bring the claim again even though the matter has not been heard.

The claim is regarding damage to property and has been brought under tort law. The value of the claim is a minimum of £40,000.

I hope I've answered all of your questions, but please let me know if you need to know anything else.

I really do appreciate your help with this........thanks again!

Pete

[Pete Thompson]

Re: Restoring claim after strike out

Hi Amethyst and R0b

I did post further information as requested......don't know if you've had chance to look as yet?

I really do need some help with this if possible, as the matter could be listed for Hearing any day now.

Many thanks

Pete

[Kati]

Re: Restoring claim after strike out

:bump: for [MENTION=71570]R0b[/MENTION] and [MENTION=6]Amethyst[/MENTION] xx

[R0b]

Re: Restoring claim after strike out

Hi Pete sorry for not responding.

9. Three weeks later Defendant made application to strike out claim. The Claimant was not served with a copy of the application, as the Defendant incorrectly detailed on the application that it should be served on the Defendant.

What did the defendant do that was incorrectly detailed so tht you didn't receive the claim?

I think you should have a good chance of the claim being set aside, given that there has been some court errors and errors by the defendant, then you should be granted relief to do this. You have complied with the orders from the court and so the defendant appears to be taking advantage of you as an LIP by striking out the claim and an abuse of process.

If the set aside is dismissed you do have the option of appealing but that does incur further costs. It depends on the amount of your original claim as to whether it is worth pursuing an appeal as it can be costly.

I shouldn't see no reason as to why the claim should be set aside if you set out that timeline.

Have you got a date for the hearing? what have you submitted so far?

[Pete Thompson]

Re: Restoring claim after strike out

Hi R0b

Thanks for your response...

At 9. of the N244, where it asks "Who should be served with this application?", the Defendant answered "Defendant", which, presumably, is why I was not served with a copy of the application or notice of hearing in respect of the same?

The Hearing has been listed for 12th April.

I haven't submitted anything further as yet, but plan to submit skeleton arguments. The only thing I have submitted to date is my application, which has evidence attached in support of the timeline I have advised.

I don't suppose you know of any case law that may be useful to me do you?......I know you mentioned Frey & Others v Labrouche 2014......are there any others that I should perhaps refer to?

I'm quite confident that the Order striking out the claim will be set aside, but I'm concerned that the judge will just strike it out again when he revisits the Defendant's application, based upon the fact that the claim and particulars were not served in accordance with CPR......even though they have been served in accordance with subsequent Orders.

Many thanks

Pete

[R0b]

Re: Restoring claim after strike out

If they have put themselves down as the claim in the strike out and you as the defendant the court should have sent you the papers, worth checking the defendant's address box to to see if they put your address or theirs.

The judge shouldn't strike out the claim if you followed subsequent orders, that would be an error of procedure. If the judge sets aside the claim, it might be worth asking the judge for further directions, explain that prior to the strike out the defendant was required to submit a defence, which should be submitted within a reasonable time,e.g. 14 days. Provided that the defence is submitted on time, the claim shall proceed to trial, otherwise summary judgment shall be awarded in your favour. Might be cheeky asking for a summary judgment but worth a try as this has gone on long enough and the defendant has had your claim for long enough so should be aware of what your claiming for.

As for case law, I do have a really busy week this week, especially this weekend but if I have some time I will try to dig out any relevant case law that might be applicable.

The key point to note in your argument for set aside is that you have complied with every court order given within the time frame and point out that you believe the strike out was an abuse of process by the defendant as they would have been aware that you've complied with the court orders. And don't forget to ask your costs back as a result

For simple case like this, skeleton aguments don;t need to be filed and served usually by midday the day before the hearing but more complex ones are filed and served 48 hours before. For completeness and to ensure you don;t rush your filing of the skeleton, I would allow 48-72 to file and serve.

do you know how to set out a skeleton?

[Pete Thompson]

Re: Restoring claim after strike out

Hi,

Thanks for your message and apologies for the delay in responding.

Should the Defendant not have put me down as Claimant on the application?

I've looked at CPR re skeleton arguments, but any further assistance would be very much appreciated.

I know you said you were very busy, but I don't suppose you found any more useful case law to quote did you?

Many thanks again for your help with this!

Pete