The courts directions should specifically state that either party that does not comply with directions will have their claim/defence struck out...save yourself £255 and push the court to impose their own sanctions.

save yourself £255 and push the court to impose their own sanctions.

I do qualify for Help with Fees so this isn't too much of an issue if it would save time.

I have now just sent the Court an email informally asking them to impose their own sanctions from the order and strike the defence out.

I'll keep an eye on my email and post the outcome.

An application could involve an hearing.....they may fight it....further costs..the court may allow them more time...too risky.

Let the court impose it of their own volition ...not yours.

Ok just had an update. It appears the court have not applied sanctions at all and instead have chosen to do an Unless Order (N34) giving the defendant until 16:00 on 29/06/2018 to file their WS.

Is it just me or is that overly lenient? Their WS is currently almost 1 month late.

Should I just accept this or is it worth speaking to the court again?

I suppose the " Unless " is a form of sanction...although a lenient one at best.

http://hugginslaw.co.uk/cs/Satellite?blobkey=id&blobwhere=1302542702381&blobheader=application%2Fpdf&blobheadername1=Content-Disposition&blobheadervalue1=inline%3B+filename%3Dfailure-to-comply-with-court-orders-and-directions-0.pdf&blobcol=urldocument&blobtable=UXDocument&moddate=2014-06-11%2002:14:31

Thanks Andy. I'm glad it's not just me who see's this as lenient.

I have done some reading and found various examples in the High Court about failure to serve witness statements on time and the consequences...

29th June is less than 2 weeks before the date of the hearing... So it's likely that Amazon's sols will file now. I think the DJ knows this too but it goes to show the blatant disregard Amazon have for the process and the case.

But then I also see it another way, maybe the order was made this way as the DJ actually wants to hear the case and see what Amazon and their sols have to say for themselves.

I'll update the thread once I have / if I have their WS

Does the order state it will be struck out without further notice if they fail to file and serve by 16:00 on 29/06/2018 ?

Does the order state it will be struck out without further notice if they fail to file and serve by 16:00 on 29/06/2018 ?

Hi Andy, Yes it does.

Phone at the ready then for 16:00 on 29/06/2018

...and I've just received their witness statement 1 day short of 5 weeks late...

Looks like this is going to trial after all.

Further to the Order of District Judge dated 7 June 2018, we enclose the witness statement of of this firm, instructed by the Defendant, ASE.

 

As is confirmed in the statement of , the evidence on which our client intends to rely at the hearing on 10 July 2018 at 10:30am is exhibited to the Defence dated 19 December 2017, which was filed at Court on 20 December 2017. Accordingly, our client did not intend to file witness evidence, or any further documentation. For completeness, however, and in light of the Courts order of 7 June 2018, we enclose the witness statement of which confirms the position, and has been filed at Court today.

My emphasis in red. This just about says it all. They don't explain why they didn't file a WS. No mention of anything I had written in my witness statement.

1) I am an Associate employed by Eversheds Sutherland (International) LLP, solicitors for the Defendant and have conduct of this matter dubject to the supervision of my principals.

 

2) I am duly authorised by the Defendant to make this witness statement on its behalf and I set out the facts herein from information acquired by me whilst acting in my capacity and from information provided to me by the Defendant.

 

3) I make this witness statement in support of the Defendant's Defence dated 19 December 2017 and further to the Court's order of 7 June 2018

 

4) All definitions contained within the Defence continue to have the same meaning in this witness statement.

 

Background

 

5) The Claim Form was issued on 17 November 2017, and the Defendant's Defence dated 19 December 2017 was accordingly filed on 20 December 2017. It is the Defendant's understanding that the Claimant is allegedly claiming 2,436.10 for an allegedly faulty item, which he purchased from a third party seller on the Marketplace of the Website.

 

6) As set out in the Defence filed on 20 December 2017, the Claim Form and all allegations contained therein are denied by the Defendant for the reasons set out in the Defence.

 

7) On 21 June 2018, Eversheds Sutherland received the Order made by District Judge dated 7 June 2018, which ordered the Defendant to send to the Court and to the Claimant the witness statements and documents, as ordered in the Order dated 11 April 2018.

 

8) In Summary, the Defendant's position is that it is not the correct defendant to this Claim, as set out in the paragraphs 6-10 of the Defence. Furthermore, and for the reasons set out in the Defence, any claim should be brought against HIDevolution UK, and not the Defendant, as the Defendant is not a party to the contract for the sale / purchase of the Goods which are the subject matter of this Claim. The Defendant therefore denies all liability to the Claimant.

 

9) The Defendant confirms that the evidence on which it intends to rely at the hearing listed on 10 July 2018 is as set out in and exhibited to its Defence. For completeness, a copy of the Defence and its exhibits is at exhibit to this statement.

 

10) In summary, the evidence on which the Defendant relies is as follows:

 

10.1) The Terms (please see pages 2-9 of the Defence Exhibit);

 

10.2) The Claimant's order summary, which confirms that the Claimant entered into the contract for the sale and purchase of the Goods with the Seller, and not the Defendant (page 11 of the Defence Exhibit);

 

10.3) The "About Marketplace Returns and Refunds" help-page (Pages 12-15 of the Defence Exhibit);

 

10.4) The A-to-Z Claim conditions (pages 16-17 of the Defence Exhibit); and

 

10.5) Correspondence between the Claimant, Amazon, and the Seller (pages 18-23 of the Defence Exhibit ).

 

Statement of Truth

If you submitted through MCOL Northampton...simply state the claim number in your application and as follows....

 

Complete the N244 Application Notice, with appropriate Court fee

 

ask for the Defendant's name to be amended, and

re-service of the claim form to be dispensed with at it was validly served at the correct address, and

ask for it ex parte (without a hearing)

On the front of the application notice type in the box asking what order you are seeking: "The Claimant respectfully requests that the Defendant's name be amended pursuant to CPR 17.1.(2) (b) an re-service of the Claim Form be dispensed with."

 

On the second page insert:

 

A claim was issued against the Defendant on XX/XX/XXXX in the XXXXXXX county court under claim number XXXXXXX for the recovery of monies owed.

Since that date the Defendant has changed their name and it is therefore incorrect on the Claim Form.

Therefore, the Claimant respectfully requests that the Claim Form be amended so that the Defendant's name reads "XXXXXXXXXXXXXXXX" pursuant to CPR 17.1 (2)(b). An amended copy of the Claim Form is included in this application.

 

We respectfully request that the need for re-service of the amended Claim Form be dispensed with as the claim form was validly served on the Defendant's address.

Did you do the above ?

Hi Andy,

Yes that was done a long while ago and the application was successful.

Okay......

So what are they referring to in the statement about the wrong name ?

This was an order placed on their website, but was for an Amazon Marketplace item. Amazon believe they are not responsible and that I should be claiming against the seller. The problem is they allowed the seller to masquerade as a UK company with the name "HIDevolution UK" but no such company exists. I later found this was a US company where CRA 2015 doesn't have jurisdiction. So I claimed against Amazon for allowing a contract of sale to be misrepresented and for failure to apply their own policies.

Right Im with you...so they proceed to acknowledge service and submit a defence and now submit a witness statement denying any involvement but not offering any evidence in support of their defence.

If they are to be believed and hope a court will go along with their defence...as they being the wrong entity..the normal process would have been to make application to strike out your claim on those grounds and request summary judgment against you.......and yet they have failed to do this ...mmmmm?

I will run through your thread tomorrow with fresh eyes .

Andy

The hearing for this Tuesday has been vacated and rescheduled for 11th September 2018 due to Judicial Availability...

Responding to your PM NS

Have you received anything further from the court or defendant since your last posting ?

Andy

Responding to your PM NS

 

Have you received anything further from the court or defendant since your last posting ?

 

Andy

Hi Andy,

No I haven't. I called the court on Friday to make sure the case was still going ahead as it was vacated at the last minute in July and I was advised it was still going ahead.

No correspondence from Amazon or their solicitors either

Simply be prepared then and have all your documents to hand and ready to refer to.....there is nothing further to add advice wise.

Best of luck...let us know how you get on...good or bad.

Andy

Update on this. The case was dismissed on a contractual law point that Amazon was not a party to the contract.

I'm slightly disappointed that the conduct of Amazon by not responding to the Orders and Pre Action Protocol was not mentioned. The Solicitor who wrote the witness statement did not attend but this was not raised either.

However the judge did offer some remarks in her judgement. She believed that any replacement item supplied by a market place seller would reset the 90 day clock for the Amazon A-Z guarentee. She also thought that although the seller was pretending to be a UK company that she was unable to do much about this. She was also "frustrated for the claimant" that this whole event has happened and various misunderstandings took place. Then went on to reassure me that I could not have done more.

Moving forward the judge advised me that I should file proceedings against HI Devolution, the market place seller themselves. She believes as I am in the UK, as they were selling goods on a UK website and pretending to be a UK company, that they accepted jurisdiction of UK Law.

So I have today sent of another LBA to HI Devolution and also emailed them a copy on their ticket system. I doubt I'll get a reply. I have also contacted Amazon again and requested what terms and conditions the seller is bound by and whether they have accepted UK Jurisdiction in their agreements or not.

On a side note I do want to sau I thought that Salisbury Law Courts accommodated my disability perfectly, they could not have been more helpful. The Judge requested that the Usher show me the inside of the court room and explain the process before the start of the hearing. Also showed me where the toilets were. The Usher also asked if she wanted me to sit in and act as a "go between" incase I needed to excuse myself from the room. I declined this. During the hearing which went on for about 90 minutes, I needed to excuse myself 50 minutes in and it was as if nothing happened.

Amazon also did not seek any costs.

Frustrated with the claimant ? Surely defendant.

Andy

She was also "frustrated for the claimant" that this whole event has happened and various misunderstandings took place. Then went on to reassure me that I could not have done more.

Frustrated with the claimant ? Surely defendant.

 

Andy

"frustrated for the claimant". So, “for” : claimant is correct

BazzaS is correct.

I've had an email from the distributor this afternoon. They are willing to pay the delivery fee of £91.10 but are now expecting any repairs to be paid for as the product is out of warranty.

They also stated that physical damage and defects are not covered under any warranty at all whether expired or not.

I wrote to them and gave them 14 days to respond, but as they have now responded in an unsatisfactory manner (Saw that coming!) could I fire off the claim before those 14 days are up? Or is it best to wait until then?

How did you get on?