Restoring claim after strike out

[R0b]

Re: Restoring claim after strike out

Hi Pete, I'll hopefully get back to you at some point, will need to re read the thread again

[Pete Thompson]

Re: Restoring claim after strike out

Great, thanks :o)

[Amethyst]

Re: Restoring claim after strike out

Format of Skeleton

The Skeleton basically takes the Judge through the case and the relevant arguments. It should be with the court and other parties 2 days before the hearing.


You are asking for reinstatement of your claim which was struck out in essence due to procedural failings of the court. This seems to be directly related to the witholding of your address which makes service of documents on you by the other side difficult. You will need to detail why you need your address witholding from the Claimant and explain why there is no alternative address for service given - as that will be blamed for the problems. You'll need to specify the CPR that allows witholding the address from the other party.

Was the application to strike solely based on the out of time service of the claim documents on the defendant ? or was it based on the content of the claim at all ? If either you will need to counter those arguments in your skeleton.

[charitynjw]

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?

Format of Skeleton

The Skeleton basically takes the Judge through the case and the relevant arguments. It should be with the court and other parties 2 days before the hearing.


You are asking for reinstatement of your claim which was struck out in essence due to procedural failings of the court. This seems to be directly related to the witholding of your address which makes service of documents on you by the other side difficult. You will need to detail why you need your address witholding from the Claimant and explain why there is no alternative address for service given - as that will be blamed for the problems. You'll need to specify the CPR that allows witholding the address from the other party.

Was the application to strike solely based on the out of time service of the claim documents on the defendant ? or was it based on the content of the claim at all ? If either you will need to counter those arguments in your skeleton.

Would Denton be of assistance?

https://www.judiciary.gov.uk/wp-cont...nt-utilise.pdf

[Pete Thompson]

Re: Restoring claim after strike out

Format of Skeleton

The Skeleton basically takes the Judge through the case and the relevant arguments. It should be with the court and other parties 2 days before the hearing.


You are asking for reinstatement of your claim which was struck out in essence due to procedural failings of the court. This seems to be directly related to the witholding of your address which makes service of documents on you by the other side difficult. You will need to detail why you need your address witholding from the Claimant and explain why there is no alternative address for service given - as that will be blamed for the problems. You'll need to specify the CPR that allows witholding the address from the other party.

Was the application to strike solely based on the out of time service of the claim documents on the defendant ? or was it based on the content of the claim at all ? If either you will need to counter those arguments in your skeleton.

Hi Amethyst,

Thanks for your help...

The address was provided prior to the claim form being served, as per order of the court. I am the Claimant in the case and the Defendant has had my address details since they were notified of the claim.

The strike out was based solely on late service of the claim form and particulars of claim.

Many thanks

Pete

[R0b]

Re: Restoring claim after strike out

Hi Pete,

I'll get back to you on other points but the white book which is guidance on court rules and procedures says, (and I believe there is one or two cases on this) that if a claimant files a claim before the limitation period and the court subsequently issues it after the limitation period, for limitation purposes the claim is deemed to have been served within the limitation period.

When you supplied your address details, was this within the limitation period?

[Pete Thompson]

Re: Restoring claim after strike out

Hi Pete,

I'll get back to you on other points but the white book which is guidance on court rules and procedures says, (and I believe there is one or two cases on this) that if a claimant files a claim before the limitation period and the court subsequently issues it after the limitation period, for limitation purposes the claim is deemed to have been served within the limitation period.

When you supplied your address details, was this within the limitation period?

Hi R0b,

I have seen similar to what you state, but what I have read refers to when the claim is 'brought'.

According to what I read, the claim is 'brought' for the purposes of the Limitation Act when it is received by the court.

I took the claim form to my local court and had it stamped as received, which was well within the limitation period. The court then sent the claim form to CCMCC via DX.

The claim was later issued within the limitation period, but was only served by the court around 8 months following expiry of the limitation period.

Many thanks

Pete

[R0b]

Re: Restoring claim after strike out

Hi R0b,

I have seen similar to what you state, but what I have read refers to when the claim is 'brought'.

According to what I read, the claim is 'brought' for the purposes of the Limitation Act when it is received by the court.

I took the claim form to my local court and had it stamped as received, which was well within the limitation period. The court then sent the claim form to CCMCC via DX.

The claim was later issued within the limitation period, but was only served by the court around 8 months following expiry of the limitation period.

Many thanks

Pete

Hi Pete,

The CPR Rule you will need to refer to from what I have read will be CPR 7, Practice Direction 7A at paragraphs 5.1 & 5.2

5.1 says

Proceedings are started when the court issues a claim form at the request of the claimant (see rule 7.2) but where the claim form as issued was received in the court office on a date earlier than the date on which it was issued by the court, the claim is ‘brought’ for the purposes of the Limitation Act 1980 and any other relevant statute on that earlier date.

5.2 says

The date on which the claim form was received by the court will be recorded by a date stamp either on the claim form held on the court file or on the letter that accompanied the claim form when it was received by the court.

Case law you will rely on is St Helens MBC v Barnes 2006 where the Court of Appeal considered the above and holding that "For the purposes of the expiry of the limitation period under the Limitation Act, a claim was "brought" when a claimant's request for the issue of a claim form was delivered to the correct court office during its opening hours."

This was further confirmed in the High Court in Secretary of State for Trade and Industry v Vohora 2008 where in relation to bringing proceedings for a disqualification of a director, "proceedings to disqualify company directors were "brought" on the day that the request and claim form were received by the court office rather than on the date that the form was issued by the court".


As for the Skeleton, you can use the template Amethyst has provided and I've attached a checklist that should help you a little bit.

[Pete Thompson]

Re: Restoring claim after strike out

Hi R0b

Thanks for the info...

Just wondering if you know of any case law that will be helpful for arguing against the claim being struck out? As advised, the claim was struck out solely due to late service of the claim form and particulars. Although, orders that were complied with prior to strike out confused matters somewhat, as advised in earlier posts.

Many thanks

Pete

[charitynjw]

Re: Restoring claim after strike out

I'll give [MENTION=71570]R0b[/MENTION] a nudge.

[R0b]

Re: Restoring claim after strike out

Hi Pete I'm afraid I couldn't find anything that specifically fits your argument. The two above can be used to show that provided you got your claim form to the court on time, it wouldn't matter when the court served it on the defendant

[Pete Thompson]

Re: Restoring claim after strike out

Hi,Just to say thanks to everybody who has taken the time to help me with this......I really do appreciate it!I'll extract all of the helpful info provided and hopefully prepare some strong arguments to have my claim reinstated.Many thanks.Pete

[R0b]

Re: Restoring claim after strike out

If you would like further help on your skeleton or other things feel free to let us know