Help Needed for Court Case. Claimant ignoring Directions and Witness Statement needed by Friday

[Desperate Daniella]

Elsa, I've already promised you a drink. You just have to get to London. Your advice and the laughs from you and the girls are priceless, but I don't think a judge would go along with your rate.

 

Thanks, mkb. I go through positive times, and very, very bad times. It is so absolutely shocking that someone who was once a friend whom I helped so much, and saw through so much, not only chucked me out of a company I was depending on to bring in my income and worked for on the basis of her lies, but then decided almost six months later to take me to the court on the basis of so many more lies.

 

I'm just hoping I get a judge who can see it.

 

DDxx

[Desperate Daniella]

Of course the other thing he might try is to turn up on Monday and say he wasn't able to contact his client for her instructions. I suppose I could always forward to her a copy of the email of my WS, letter to the court, etc., to her. I don't believe for one moment he won't be able to reach her - just trying to pre-empt any tactics.

 

Also, can you believe this? I sent her an invoice for all my work by recorded delivery on 16th November and they have lost it. "We have your item. It's in our system and awaiting delivery (or something like that)". I could email her a copy of that too. I've still got the post office receipt saying when I sent it (even if they can't bloody find it). Shall I send her an email of that too? Might make her more wobbly over the weekend.

[Undercover-Elsa]

Hi DD

Something you might find very useful to pre-empt any claims of non receipt...

Can't post a link as it's commercial, but Google REWPost and Readnotify.

Both provide a certified email service whereby you get legally accepted proof that the email was delivered, with dates and time it was read. Readnotify goes further and has all sorts of features. It provides proof of content as it's tamper proof. It tells you if the email is printed, deleted or forwarded to anyone else. There's a free trial available.

Imagine how good it would feel to have her deny receipt in Court-then produce your proof

Elsa xx

[cymruambyth]

Have you tried phoning RM about the delivery? Sometimes it shows up as missing on the web but phoning can get a time and date of delivery. I'm sure it's open on Saturday ,mornings.

[Desperate Daniella]

Hi,

 

I've just called RM and there's only their automated service - no transfer to a real person. Either they have lost it, or the postman just put it through her door without getting a signature - we all know they do that.

 

Thank's Elsa. I've just signed up to readnotify. Gosh, you are just amazing in all the info you have to hand.

 

I assume then that you do think I should send her my witness statement, etc, just in case he says he wasn't able to contact her? At least I'll be able to show she opened it.

 

I've just had another thought which I think shows them in even more of a bad light, and I think indicates that they did get the notice of the hearing in time.

 

Her WS about the ADR was due on the 19th. It is dated by her on the 30th (Monday) and it in she apologizes for it being late and admits it was due on the 19th, but even then they don't email/post it to me until the afternoon of the 3rd. So they admit it's late but don't treat it with any urgency! How can they justify that?

 

In other words they didn't even do it until they got the notice of the hearing.

 

If he argues they didn't have their three clear days I will argue I didn't get my clear 14 days to respond.

 

I've just found out that he left me an answerphone message at 5.00 p.m. yesterday, that's just a couple of minutes before I emailed him.

 

He says: "I hope you received my email and would be grateful if you would let me know your position regarding Monday. I don't want to go to court if it's going to be adjourned and incur those costs because it's erm..... Goodbye." So, unless he went out the door within two minutes he would have had my email.

 

They are obviously lying. I just hope the judge sees it.

[cymruambyth]

Hi, again, I'm not sure but I think that evidence of posting should be sufficien, just take the rd receipt. I may be ignorant, but their excuse that they haven't been able to contact their client or that they have been busy is codswallop!

The dates are legally binding (or should be). Make sure you have a chronological list of everything, may be 2 for ease of reference, 1 showing your timescales and how you have adhered to them and 1 showing hers and where she has abused the court process by ignoring them.

[cymruambyth]

PS I'm trying to apply logic to the legal system, so i may be totally wrong

[Desperate Daniella]

Hi,

 

That's exactly what I am going to do. In fact I'll do three - one for the judge, and one for her/her solicitor too.

 

I've also just called her home number and she answered. I hung up obviously, but if he says she was away for the weekend I'll tell the court that's another lie.

[Desperate Daniella]

I am going to say that the claim has been made against on the basis of her untrue statements, and she and her solicitor have constantly and repeatedly abused Court process by their unreasonable conduct and have treated me with the same arrogance and contempt that she treated me with last year.

 

It says on the Notes of the Notice of Allocation to the Fast Track:

 

If you do not comply with these directions, any other party to the claim will be entitled to apply to the court for an order than your statement of case (claim or defence) be struck out.

 

She got her warning over the fees and pre-trial checklist. Now anyone with any sense and who wasn't acting in a totally arrogant manner would surely at that point double-check that they weren't going to miss the next direction, but no - they just carried on ignoring it all as usual, or deliberately continuing to use delaying tactics. What concerns me is that her solicitor doesn't seem to consider that it matters.

[Undercover-Elsa]

That's just arrogance and gamesmanship. Stick to your guns, you're doing great!

[Desperate Daniella]

Thanks, Elsa,

This is essentially what I am going to be saying. I've tried to make it very clear. If anyone thinks it's not, or if I have missed anything out, please let me know.

This Claim has been made against me on the basis of untrue statements by the claimant.

I am asking that her claim be struck out as she and her solicitor have repeatedly abused Court process by their unreasonable conduct, and have treated me with the same arrogance and contempt as the Claimant treated me last year when she threw me out of what I considered to be “our” company. By abusing Court process they have deliberately used delaying tactics in an attempt to thwart my Defence.

On the Notice of Allocation to the Fast Track, the Notes clearly state:

If you do not comply with these directions, any other party to the claim will be entitled to apply to the court for an order that your statement of case (claim or defence) will be struck out.

The Claimant has ignored not just one, but every Direction. The dates that documents should have been delivered is shown on the list I have provided, together with the dates that they were actually signed by the Claimant and sent to me.

The Claimant should have filed her pre-trial checklist no later than 16th October 2006 and paid the listing fee of £100, together with the Hearing Fee of £500 on the same date, but failed to do and was given until 6th November to do so, or her case would be struck out.

Surely the Man on the Clapham Omnibus, realizing that their claim could actually have been struck out for non-compliance with that Direction, would be especially careful to check the Order for other Directions to make sure they did not miss any other deadlines? But the Claimant and her solicitor just carried on as is their arrogant norm.

The Claimant’s Witness Statement relating to ADR was due to be served on me by 19th November and is signed and dated 30th November by the Claimant who apologises for the late delivery but states, very arrogantly again, that she does not think that I “will have been prejudiced in any meaningful way by the relatively short slippage in the timetable for serving this Witness Statement “ which she blames on an oversight by her solicitors caused by pressure of work.

Despite this apology, and the fact that the document is apparently dated 30th November which was Monday, it was not posted to me until Thursday, 3rd December and an email attaching it was sent to me at 13.57 p.m. on the same date, although I actually didn’t see it until somewhat later that afternoon.

Clearly this is an attempt to cover their backs for failing to ignore this Direction too.

The Claimant’s solicitor emailed me on Friday afternoon, 4th December to say that he didn’t receive the Notice from the Court until Friday and it was not properly served and that I should apply for an adjournment in order to give them three clear days and provide them with evidence in support.

I saw and opened this email at around 4.00 p.m. on Friday and immediately called the Court who are adamant that the Notice had been served properly.

I then replied to the Claimant’s solicitor at 5.01 p.m, attaching my Witness Statement and the letter I had sent to the Court – the evidence. I also forwarded an email from the Claimant to me from 2007 in which she refers to “our” business, something she is now denying, to the Claimant’s solicitor at 7.12 p.m.

The Directions state that I must be given 14 days to reply to the Claimant’s statement about ADR, but as the trial is set down for the 17th December at 10.30 a.m., and the Witness Statement was only posted to me on Thursday, 3rd December, arriving on the 4th December (with an email sent at 13.57 on the 3rd) I am not to be given the required 14 days, so it is somewhat ironic, and I would say unreasonable, that the Claimant’s solicitor is claiming that they must be given their three days, and that if I didn’t request an adjournment for today’s hearing they would be seeking a costs order against me.

I received my Notice from the Court with a copy of my application which states that they haven’t complied with 2a, on the morning of Wednesday, 2nd December, and the Claimant’s Witness Statement miraculously appears as an email on the afternoon of Thursday, 3rd December, despite the fact that they say they didn’t get the Notice until Friday, 4th December.

The Claimant and her solicitor have abused Court process throughout this case causing me even more anxiety and distress on top of this vexatious claim, and I respectfully ask that the claim now be struck out.

DD

[Undercover-Elsa]

Morning DD

OK. It's great in many ways, but I'm going to be what I hope is a proper friend to you now and say that it does need some work.

You're fighting a cold fish here and you need to get into a businesslike professional mode and away from the hurt family friend persona. The Court aren't interest in your feelings. They just want the facts, Ma'am.

I've done an edit, and I hope others will refine it or pull it to bits till we get it right for you.

I've tried to strip out the emotional side and present the facts.

See what you think.It's your case and only you can decide ultimately what to say, but you know we're all on here with your best interests at heart.

 

This Claim has been brought against me on the basis of untrue statements. The claimant has consistently and deliberately suppressed information and failed to supply requested documents which she is aware would demonstrate these untruths.

 

The claimant’s reluctance to supply these documents is evinced by the repeated abuse and disregard of Court process, showing no respect to deadlines or protocol and procrastinating in order to unnerve me and overcome my valid defence.

I am therefore requesting that the claim be struck out.

 

 

 

 

To illustrate further:

• 1. On the Notice of Allocation to the Fast Track, the Notes clearly state:
   
  ”If you do not comply with these directions, any other party to the claim will be entitled to apply to the court for an order that your statement of case (claim or defence) will be struck out”.
  The Claimant has ignored not just one, but every Direction. I have provided a chronological list of the dates that documents should have been delivered, together with the dates that they were actually signed by the Claimant and sent to me – none were delivered on time.
  

• 2. The Claimant should have filed her pre-trial checklist no later than 16th October 2009 and paid the listing fee of £100, together with the Hearing Fee of £500 on the same date.
  

She failed to do so and the Court gave her an extension until 6th November or the case would be struck out.

 

 

 

• 3. The Claimant’s Witness Statement relating to ADR was due to be served on me by 19th November.
  

Not only was this not signed and dated by the claimant until Monday 30th November, it was not actually posted to me until Thursday 3rd December.

She also sent me an email containing the Witness Statement on Thursday 3rd December. She did apologise for the late delivery but casually dismissed any inconvenience it may have caused me or the Court by stating that she does not think that I “will have been prejudiced in any meaningful way by the relatively short slippage in the timetable for serving this Witness Statement “ which she blames on an oversight by her solicitors caused by pressure of work. I do not feel this excuses the delay and feel it is merely a retrospective poor attempt to justify their lack of respect for court procedure.

 

 

 

 

• 4. The Claimant’s solicitor emailed me on Friday afternoon, 4th December to say that he didn’t receive the Notice from the Court until Friday and it was not properly served.
  

He stated that I should apply for an adjournment in order to give them three clear days and provide them with evidence in support.

I saw and opened this email at around 4.00 p.m. on Friday and immediately called the Court who are adamant that the Notice had been served correctly.

 

I then replied to the Claimant’s solicitor at 5.01 p.m, attaching my Witness Statement and the letter I had sent to the Court – the evidence.

 

 

 

At 7.12pm I also forwarded the solicitor an email sent by the Claimant to myself in 2007, in which she refers to “our” business.(This is relevant in that she is now denying to the Court that we were in business together – clear evidence of a major untruth)

• 5. The Directions state that I must be given 14 days to reply to the Claimant’s statement about ADR.
  

As the trial is set down for the 17th December at 10.30 a.m., and the Witness Statement was only posted to me on Thursday, 3rd December, arriving on the 4th December (with an email sent at 13.57 on the 3rd) I have obviously given the required 14 days, so it is somewhat ironic, and I would say unreasonable, that the Claimant’s solicitor is claiming that they however must be given their three days. Furthermore I feel his statement to me that if I didn’t request an adjournment for today’s hearing on this basis, they would be seeking a costs order against me, is calculated to be intimidating.

 

 

 

• 6. I received my Notice from the Court with a copy of my application which states that they haven’t complied with 2a, on the morning of Wednesday, 2nd December. The Claimant states that they did not receive their copy until 4th December.
  

I feel that the fact that the Claimant’s Witness Statement suddenly materialised as an email on Thursday 3rd December and letter on Friday 4th December calls this statement into question. The Court’s assertion that it was served correctly substantiates this.

 

In conclusion, the Claimant and her solicitor have abused Court process and attempted to intimidate me throughout this case causing me even more anxiety and distress on top of this vexatious claim. I feel this clearly demonstrates the Claimant’s contempt and diregard for the Court, for myself and for the truth.

I therefore respectfully ask that the claim now be struck out.

 

 

 

Hugs, Elsa xxxx

Edited December 6, 2009 by Undercover-Elsa

[Desperate Daniella]

Elsa,

 

That's much better. It's wonderful. Absolutely no need to apologize - I'm just so grateful for your fantastic help.

 

I was going to do all that as a spoken statement. Should I also pass a copy to the judge and her solicitor?

 

I've been on the internet all morning. Should I also include that I can ask for a strike out because CPR 3.4 © state that I may do so if "there has been a failure to comply with a rule, practice direction or Court Order", and that they have not complied with a single direction so far ?

 

I've done the chronological list and it's so clear that they have just ignored the lot.

 

I've put the dates due and the dates received (and the date she signed) in bold.

 

SD due 28th August - received 2nd October.

 

Inspection of documents by 4th September - impossible for me to do this and still no documents received to date.

 

WS due 25th September - received 23rd October.

 

Pre-trial checklists and fees due by 16th October. Provided on 2nd November, only after they have been threatened with a strike out.

 

ADR WS due on 19th November - delivered on 3rd December.

 

Five out of five not complied with! Surely this demonstrates so clearly what they are trying to do?

 

I've realised I should have put in my estimate of costs with my pre-trial check list and I didn't because I hadn't got any representation. If they try to say I didn't comply fully with that one, shall I just say that I intended to put in a wasted costs order if I won my case?

 

Also, if I don't get a strike out, I'm going to have to ask for time to instruct a barrister and get an estimate of costs. Would I do that at the hearing. Can I also say I now want to counterclaim as I have the funds to do so (from a friend as you know)? I have already offered her inspection of all the documents I would be relying on in a counterclaim as they are part of my defence and copies of everything I did for the company.

 

Thank you for spending so much time on this.

 

Big hug to you too.

 

DDxxxx

[Undercover-Elsa]

Hi honey,

Phew-glad you took it the right way

I'd take 3 copies just in case-If you're speaking it I'm not sure if you should give them out-more experienced input needed on the Court side of things.

I think the CPR 3.4 point is a good one and should be included.

 

Perhaps you could add at the bottom of the above something like:

 

If the Court feels that a strikeout is NOT appropriate then I respectfully ask that I be allowed sufficient time to prepare a counter claim and instruct a barrister as I feel disadvantaged being a Litigant in Person in this case, which is far more complex than the Claimant admits.

[Desperate Daniella]

Oh, Elsa, I'm astonished that you would worry for a second about that fantastic edit.

 

I am going to speak it, and I'll see if they ask for copies.

 

I'll put in the CPR, and add that last sentence which is, as usual with you, absolutely excellent.

 

When I phoned her number yesterday to check she was in London, just in case he says he couldn't get hold of her, she didn't sound her usual brisk self. I'm hoping that as she now knows I have that email about "our" company, she knows she's been caught in a lie. Here's hoping.

 

Sorry, to be dopy again, but do you know if I should also say I will wish to amend my defence to one of estoppel at this stage, or if I have to put in another application?

 

DDxx

[Undercover-Elsa]

Hmm good question. Not dopey at all...

 

"The application and the attractiveness of the notion of

estoppel

is quite easy to appreciate. One party enjoys a legal right under a contract. That party says that it is not going to enforce that right on a particular occasion. The other party relies on that representation and acts accordingly. Then the first party changes its mind and decides that it does want to enforce its strict legal rights; but only after its counterpart has irretrievably committed itself. The equitable doctrine of

estoppel

is designed to prevent such an unfair tactic...."

"To use a common metaphor, you are not allowed to let someone go out on a limb so that you can saw him off."

 

Again, I'm not sure on the timing of this. You may need to ask advice of the judge, if he/she doesn't strike out. State that as you have been put in the position of researching your own defense, you were not aware initially of all the options open to you, and now seek permission to amend your defence to one of estoppel, based on your further research and recent ability to access a barrister.

[Undercover-Elsa]

DD have you checked your home insurance policy to see whether it includes a free 24 hour legal advice by telephone facility?

You could perhaps clear up the fine points of court questions there..

[Desperate Daniella]

Thank you. I will do that. My friend whose husband has said he'll pay for the barrister is coming with me, so the judge can, if he wants, ask her when they offered to pay for this.

 

I got in touch with my home insurance and I'm not covered for a matter like this. I did try to say it was an employment issue, but they wouldn't accept it because I wasn't an 'employee' although actually of course I was - I just didn't know it.

[Undercover-Elsa]

Shame that.

Also, don't just watch your back, watch your front...eg make it plain if necessary that you have limited funds and that the only reason that you can instruct a barrister is that a friend who is apalled by the injustice of the claim has offered to specifically fund this if necessary. (Don't want them thinking you are well off enough to afford it yourself)

[Desperate Daniella]

Will do.

 

I am in my horrible financial state specifically due to this b**ch. I would have left the country in 2007 with money if I hadn't thought I could make a lot of money working for "our" company. Apart from the bank statements proving that she lied, I bet they will show that she hasn't completed a single deal since last year - we know she got thrown off one in October. She knew she wasn't really interested in the business, but she preferred to let it fail than give it to me to run - despite the fact that she would still have got 50% of the profits.

 

This whole thing is down to spite.

 

Anyway, I'll be very businesslike tomorrow.

 

DDxxx

[The GodMother]

Morning DD

OK. It's great in many ways, but I'm going to be what I hope is a proper friend to you now and say that it does need some work.

You're fighting a cold fish here and you need to get into a businesslike professional mode and away from the hurt family friend persona. The Court aren't interest in your feelings. They just want the facts, Ma'am.

I've done an edit, and I hope others will refine it or pull it to bits till we get it right for you.

I've tried to strip out the emotional side and present the facts.

See what you think.It's your case and only you can decide ultimately what to say, but you know we're all on here with your best interests at heart.

 

 

Hugs, Elsa xxxx

 

Small point here but Elsa has made a easy mistake with point 2 of this.

The date should read 16th october 2009 Nothing nasty but if given out and she is there she might make a song and dance outta it.

[Undercover-Elsa]

Well spotted Godmother!

I'd pasted DD's original into MS word to work on it, it's 2006 on there so originally DD's typo , but my fault too for not picking up on it!!

Have amended my text.

Elsa xx

[Desperate Daniella]

Sorry, absolutely it was me.

 

Thank you for picking that up, GM.

[Undercover-Elsa]

You getting your legs waxed and your nails done gal?

Sashay in there and knock em dead tomorrow!

[Undercover-Elsa]

I'll be around first thing to wish you luck before you go