CCJ Registering from England

[seriously fed up]

OK, I think this one is relatively easy (or maybe its just me being stupid :-|) but the Civil Jurisdiction and Justice Act 1982 is pretty clear on this. Rather than me ramble on, I will copy the relevant part (section 8, rule 3 para 3 and 4 - this is re consumers)

"(3)A consumer may bring proceedings against the other party to a contract only in—(a)the courts for the place in which that party is domiciled;

(b)the courts for the place in which he is himself domiciled; or

©any court having jurisdiction by virtue of rule 2(f) or (i).

(4)Proceedings may be brought against a consumer by the other party to the contract only in the courts for the place where the consumer is domiciled or any court having jurisdiction under rule 2(i).

 

 

If they want to insist you arent a consumer but an employee then its section 8 rule 4, para 2 and 3 which are practically the same

" (2)An employer may be sued—

(a)in the courts for the place where he is domiciled; or

(b)in the courts for the place where the employee habitually carries out his work or in the courts for the last place where he did so; or

©if the employee does not or did not habitually carry out his work in any one place, in the courts for the place where the business which engaged the employee is or was situated.

(3)An employer may bring proceedings only in the courts for the place in which the employee is domiciled."

The only exception to this would be if there was (this is para 5) "an agreement on jurisdiction—

(a)which is entered into after the dispute has arisen; or

(b)which allows the employee to bring proceedings in courts other than those indicated in this rule"

I assume that (a) would not apply. In any event (b) isnt going to help them.

 

Thus their assertion that

 

""4. It is simlply not correct to say that the defendant is a "consumer" or that there is any consumer credit agreement, whether or not it is regulated under the consumer credit act" is neither here nor there, as rule 4 gives you the same rights as an employee, which they seem to accept you were in the next paragraph that you quote

"6. subsequent to the termination of the defendant`s employment on 29 july 2005 the claimant company by mistake made payment to the defendant of £1730.56. the defendant had no entitlement to the said monies and despite requests has failed to repay the same" ( this is completely untrue )

"7. the claimant is a company registered at cardiff and any county court in england and wales has jurisdiction for an action such as this for recovery of monies paid under a mistake." - this is just wrong. As you reside in Scotland (you do?) they can only raise this action here in my opinion as its an employment matter.

 

Dont know if they are just at it, or not all that well informed. One of the two.

 

Btw you can find the Civil Jurisdiction etc Act at http://www.uk-legislation.hmso.gov.uk/RevisedStatutes/Acts/ukpga/1982/cukpga_19820027_en_22#sch11

Hope that helps you

SFU

[seriously fed up]

OK, glad to help

Just a couple of things - first, dont let them wander away from this being an employment issue. Secondly, might they be able to get the case reopened up here, when the Civil Jurisdiction Act wouldnt be able to help you. Just something to watch out for.

[seriously fed up]

it would be your MP, I would think

You have a final judgement against them in England as well? I would think about going after them for abuse of process.

[seriously fed up]

OK what i mean by "final judgement" is that, what I take from your post at 19.15 is that a Scottish Employment Tribunal has decided in your favour. What really shocks me is that you seem to be saying that a court in Leicester also decided in your favour. Was this on the same issue? Two things here

 

1. while they might play silly buggers with jurisdiction for the Scottish Tribunal judgement, this hardly seems possible with the Leicester judgement, which is the same jurisdiction (England and Wales).
   
2. that they have raised another action in another court when two judgements have already gone against them, just seems to me to be abusing the legal process. What are they going to do, haul this case round every court in the land till they find one that will side with them. This isnt process - the correct process would be to appeal either the Scottish or Leicester decisions. I would guess the latter is ruled out for them as the English system no longer has jursidiction (though presumably for the original decision it did so there might be an argument that as it started in England ...) and they dont fancy appealing the Tribunal decisions in a foreign country. Basically, I think they are taking serious advantage here - getting court papers isnt nice, its putting you to trouble and concern - and I think the full detail should be put to the court - ie not just that it lacks jurisdiction, but that you already have two judgements against them etc. - I would use this as a basis for an application for the costs of resisting their currrent claim. It might not be very much (court fee + something for your time etc) but it would send them a message.
   

[seriously fed up]

ah wish - they make somewhat more money than I do!

So, you have judgement against them in Scotland and in England (Leicester) on the same matter and this is them trying it on now in Cardiff. You MUST include in that in your defence and seek costs on the grounds that they are just abusing process. As I said, you might not get very much, but its an important message for them that if they keep harassing you, you will extract as much revenge as you can.

On a closely related issue, any competent solicitor (or even legal assistant) in either Scotland or England will know about jurisdiction - even I did, and I aint a solicitor. I know a lawyer is like "a cab for hire" (to quote Geoff Hoon), but this is quite disgraceful. I am quite sure they must have been told that Cardiff lacked jurisdiction, but they hoped you didnt. Well ye ken noo.

[seriously fed up]

I feel like the solicitor who you refer to earlier in this thread - the one whose eyes glazed over because he cant believe it.

First thing is that the trial date is set for 11th June, so is more than 6 weeks away (just!), so there is time to deal with this. The question is how. The first thing to learn is on what justification the Judge at Barnsley has decided that he has jurisdiction, since, as has been pointed out several times now, the Civil Jurisdiction Act is pretty clear. Whether they are trying to sue you as an employee (Rule 3 [4])or a consumer (rule 4[3]), any action should be brought where employee/consumer is domiciled. So it would be useful to know what legal/ argumentative pyrotechnics have been used to try to navigate a way through one of these.

I have had a look through the thread and it looks to me as if these are the key events

1. you had been paying for a pc during your employment and owed c.£600 when you left. They prevented you paying this when you left

2. after leaving you successfully claimed unfair dismissal at a Tribunal in Scotland, won and were awarded £7k (if they introduced the pc issue at the hearing, and at the stage of determining compensation, this "debt" should have been taken into account then - if it wasnt hell mend them!)

3. to enforce you had to go to court in Leicester (why Leicester btw? I think I read somewhere on the thread that their HQ was Cardiff), who threw out their counter claim and ordered immedidate payment of the Scottish Tribunal award.

4.they have been after you for a debt over the years - what is the basis of this debt? The pc? But you send their solicitors the Tribunal papers, judgement etc and they back off. However at some point (December last year) they got a CCJ in Barnsley. Were the papers for this claim ever served on you?

5. That judgement has now been set aside, but the court has decided that it has jurisdiction and trial is set for 11th June.

Is that basically about it? Or is there anything that I have missed out? If not then there are two things we need to learn from you

A. on what basis has Barnsley Court decided that it does have jurisdiction to mess with a decision by a Scottish Tribunal. That decision should only be challenged at Employment Appeal Tribunal in Edinburgh.

B. on what basis are they bringing the case? Are they bringing it against you as an employee or as a consumer? Despite the fact that it shouldnt make a bit of difference, since either way jurisdiction resides in Scotland, if the latter then it might make things a LITTLE easier for them to claim jurisdiction (no less wrongly) lies in England, as the Tribunal judgement wouldnt be getting in the way. So if you can advise on that, it would be a big help.

I would CERTAINLY speak to my MSP if I were you (indeed as many as possible - remember there are list MSPs as well as the constituency one). This is utterly scandalous as its quite clear that jurisdiction resides in Scotland whether they are bringing the case against you as a consumer or as an employee. Either way they are showing two fingers to the Civil Jurisdiction Act. But if as an employee then they are doing the same thing to the whole Tribunal system in Scotland. More importantly so is the Barnsley Court.

Btw, I am not sure who it is you would want to get your MSP to approach. It could be one of a number

1. Shona Simon, who is President of Employment Tribunals in Scotland, I expect would have some trenchant views on this one

2. Elish Angiolini who is Lord Advocate or

3. Frank Mulholland who is Solicitor General

When you see the MSP (and dont be afraid to go round them - remember they are competing for your vote) find out if they can advise - or advise you to see someone who can advise - to get this sorted out. It has the potential for a nice wee constitutional crisis (you could be famous!), but most likely its some muppet judge in a county court who has no idea of the Civil Jurisdiction Act and/or considers everyone north of Carlisle as a hairy, kilted idiot.

Edited April 29, 2010 by seriously fed up

[seriously fed up]

thanks for that, which does explain things quite clearly, but leaves me even more bewildered that a court in Barnsley would listen to this. I mean, why Barnsley? If their HQ is Leicester and they are registered in Cardiff (that must be the Cardiff ref), why Barnsley? Did they stick a pin in a map. It just gets more bizarre by the line.

Two important bits of information in what you said:

 

1. "7. The claimant is a company registered in Cardiff and any County Court in England and Wales has jurisdiction for an action such as this for recovery of monies paid under a mistake." - which is just nonsense. The Civil Jurisdiction Act is 1000000000000% clear on this. They are suing you as an employee and Schedule 8 rule 4, paragraph 3 says "(3)An employer may bring proceedings only in the courts for the place in which the employee is domiciled." How clearer can that be (this is why the eyes of the solicitor you visited glazed over - its a bit like someone telling you that humans can fly - it cant happen). About the only way I can make sense of this is that you have been really unlucky, and they have been very lucky, in getting some muppet who doesnt know about this and couldnt be bothered to look.
   
2. The second thing is this - "6. Subsequent to the termination of the Defendants employment, on the 29th July 2005 the Claimant company by mistake made payment to the defendant of £1730.56. The Defendant had no entitlement to the said monies and despite requests has failed to pay the same." You say you can disprove this. So your ex employer has been guilty of two wrongful acts - bringing the case in a court lacking jurisdiction. They would claim - I strongly suspect - they are not lawyers, but with the legal advice they have taken, not to mention it getting kicked into the long grass however many times because of jurisdiction, they MUST know. There is no way they cannot know. They are taking advantage of a poor judge ! Also they are bringing a case vexatiously - not only can you prove that their assertion is wrong and that they almost certainly know this, but the basis of the claims they have made against you over the years have changed. One could easily come to the view that this is persecution by the misuse of the legal system. I would be looking to see if there is some way you could get compensation for this. Probably not - but its worth looking and if it makes them sweat then its worthwhile in my view.
   

good luck with your MSP. As I said I would be inclined to go round the list MSPs as well. I would imagine that one from the SNP might be particularly useful and not just because they are the government party in Scotland. Its a pity that there is a Westminster election, as there are UK issues in this as well. Many of the contracts that we sign - and these are very common - often have a clause saying that any dispute will be determined by the law of England as that suits the company we will be dealing with. But the Civil Jurisdiction Act undermines all that. Doenst stop them putting it into contracts and, I suspect, using that contractual terms to deter legal actions being brought in Scotland (and often at all as the greater expense will put many off).

[seriously fed up]

isnt it the 11th June before the case is due up again? If so it would be 6 weeks that you have got. By that time you will have a (new) MP who might be able to take your case up at Westminster level. The normal excuse is that the legislature doesnt interfere with the judiciary, but this is such a miscarriage - and in any event might take no more than a word in the right ear to sort out - that it would seem to be somewhere to start. I'm not sure when Westminster gets back to work, but I dont think its that long after the election. It might be worth making contact with your local candidates right now. From what you have said I would reckon the "two most likely to" are Lindsay Roy and David Alexander, and since it might be close, I would have thought they would be helpful - especially the former as he has at least been in Westminster (though not for very long) and might have contacts who would be relevant.

Another possibility might be to contact a journalist who might be prepared to take up your case. This would mean going public, but - and I dont mean to minimise your personal discomfort at events which I fully understand - but there are quite serious constitutional issues in this. This is why your MSP, and the solicitor are totally gobsmacked. This really should not be happening.

In the papers that you have received is there an indication of the court's rationale as to why they feel they have jurisdiction, or are they simply relying on the claim by the other side that it does? When you asked for the set aside, was it on the basis of the papers never having been served or did your argument include jurisdiction. I would be very worried if it did include the latter, as then the court could hardly plead ignorance and is basically going ahead in spite of the Act.

As for a defence, my inclination - at least half seriously - would be to submit a defence that is simply the relevant part of the Civil Jurisdiction Act 1982 with the relevant clause highlighted, because that stops it in its tracks. Let us know about your case for set aside to see if that helps us understand why it hasnt.

[seriously fed up]

That is all good advice from Exel, in particular the possibility of taking this to a higher level in the company, as it might be that level may be unaware of what is going on. There is a clear possibility that this is "personal" (havent been on the wrong end of this myself - but I do know one guy in particular who was) -ie not corporate persecution exel, but an individual (or individuals) misusing their position and getting away with it. So definitely worth a try.

My own view on this is still driven by "this shouldnt be happening". This case should not even have been listed. But the issue is what to do about it. Couple of suggestions

 

1. raise it at different levels - like I said your local candidates. It might not be who/ what they know, but someone they know who can help. I suspect that this whole thing could be brought to an end if the right word was put in the ear of the right person. One person who occurred to me who might know is Ian Hamilton QC. You might not have heard of him, but he was one of the students who repatriated the Stone of Destiny from Westminster Abbey about 60 years ago, so his credentials as a nationalist who would want to defend the rights of Scottish law are strong (you dont actually need to be a nationalist - any Scottish lawyer gets annoyed when England tries to usurp their jurisdiction - even an arch unionist like Donald Findlay). He's getting on a bit now, but in his own way quite active - in other words, I dont think he could do anything but you might think about getting in touch with him for advice on who might be able to help. The way to get to him is go to his blog - Ian Hamilton QC - click on subscribe, and then click on the email address and tell him about the situation you are in. The worst that will happen is he will ignore you, but he might be prepared to advise. Worth a try. The other person I thought about was Kenneth Roy, who has been a campaigning journalist for more years than i can remember. His main output is via an online publication called the Scottish Review - you can get contact details here - Scottish Review : Office. He might pick it up himself if it interests him - or he might advise someone else. Again the worst that would happen is a rubber ear.
   
2. I would regard appearing at Barnsley as the final option. Why? Because in a sense if they put you to the trouble and expense of going there then in a sense they cannot lose - its hard to imagine they would get their court order, but you never know. But they would have you out of pocket and inconvenienced. If I am right about this being personal - and not corporate - persecution, then they have won. What is to stop them bringing the case in Plymouth next time? IF it comes to it then yes you obviously must defend yourself in Barnsley, but I think right now - with six weeks to go - we should be looking for someone to put a big full stop on this so that not only is Barnsley stopped but the whole thing is brought to an end. Yes by all means make arrangements to defend in Barnsley, but lets not lose sight of the bigger picture - oh, and ideally with compensation for the inconvenience they have put you to already.
   

[seriously fed up]

Got some advice re CPR rules (English procedure on bringing claims in court). A relevant section is in Part 6, which allows claimants to bring claims without court (English) permission. It reads (and you can find it here - PART 6 - SERVICE OF DOCUMENTS - Ministry of Justice at para 6.32

 

"Service of the claim form where the permission of the court is not required – Scotland and Northern Ireland 6.32

 

(1) The claimant may serve the claim form on a defendant in Scotland or Northern Ireland where each claim made against the defendant to be served and included in the claim form is a claim which the court has power to determine under the 1982 Act and –

(a) no proceedings between the parties concerning the same claim are pending in the courts of any other part of the United Kingdom; and

 

(b)

(i) the defendant is domiciled in the United Kingdom;

 

(ii) the proceedings are within paragraph 11 of Schedule 4 to the 1982 Act; or

 

(iii) the defendant is a party to an agreement conferring jurisdiction, within paragraph 12 of Schedule 4 to the 1982 Act.

 

 

 

(2) The claimant may serve the claim form on a defendant in Scotland or Northern Ireland where each claim made against the defendant to be served and included in the claim form is a claim which the court has power to determine under any enactment other than the 1982 Act notwithstanding that –

(a) the person against whom the claim is made is not within the jurisdiction; or

 

(b) the facts giving rise to the claim did not occur within the jurisdiction"

I have highlighted the key part - the Barnsley court quite specifically does not have the power to hear the case - your employer (ex employer) can only sue you where you are domiciled. They may object here that you are not their employee (any more), but it would seem to me that this wouldnt stand up as their claim against you concerns payments made under a contract of employment and the relevant section of the Civil Jurisdiction and Judgements Act is headed "Jurisdiction over individual contracts of employment". See schedule 11 of Civil etc Act 1982 http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1982/cukpga_19820027_en_22#sch11

 

CPR goes on under Part 11 to say

"Procedure for disputing the court’s jurisdiction

11 (1) A defendant who wishes to –

(a) dispute the court’s jurisdiction to try the claim; or

 

(b) argue that the court should not exercise its jurisdiction

 

may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.

 

(2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10.

 

(3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court’s jurisdiction.

 

(4) An application under this rule must –

(a) be made within 14 days after filing an acknowledgment of service; and

 

(b) be supported by evidence.

 

 

(5) If the defendant –

(a) files an acknowledgment of service; and

 

(b) does not make such an application within the period specified in paragraph (4),

 

he is to be treated as having accepted that the court has jurisdiction to try the claim.

 

(6) An order containing a declaration that the court has no jurisdiction or will not exercise its jurisdiction may also make further provision including –

(a) setting aside the claim form;

 

(b) setting aside service of the claim form;

 

© discharging any order made before the claim was commenced or before the claim form was served; and

 

(d) staying(GL) the proceedings.

 

 

(7) If on an application under this rule the court does not make a declaration –

(a) the acknowledgment of service shall cease to have effect;

 

(b) the defendant may file a further acknowledgment of service within 14 days or such other period as the court may direct; and

 

© the court shall give directions as to the filing and service of the defence in a claim under Part 7 or the filing of evidence in a claim under Part 8 in the event that a further acknowledgment of service is filed.

 

 

(8) If the defendant files a further acknowledgment of service in accordance with paragraph (7)(b) he shall be treated as having accepted that the court has jurisdiction to try the claim.

 

(9) If a defendant makes an application under this rule, he must file and serve his written evidence in support with the application notice, but he need not before the hearing of the application file –

(a) in a Part 7 claim, a defence; or

 

(b) in a Part 8 claim, any other written evidence.

 

 

(10) Omitted"

So from this the key things are

 

• have you put in an acknowledgement of service yet?
  
• if so have 14 days gone by since that acknowledgement was made (please say no)?
  
• if less than 14 days see 1 and 2 above. I would have thought your evidence would be the relevant sections of the Civil Jurisdication and Judgements Act + evidence of where you are currently living (and perhaps - belt and braces - where you have resided since leaving their employment).
  

I really cant see any reason why that wouldnt work. It seems quite clear from what you have said that their claim depends on your original contract of employment and thus Schedule 11, part 4 - Jurisdiction over contracts of employment - would apply at rule 3 that "An employer may bring proceedings only in the courts for the place in which the employee is domiciled." Added to evidence of where you are domiciled, I dont see how anyone could disagree with this, unless you had given up your jurisdictional rights since this dispute began (the 82 Act is clear on this - you have to have agreed since the dispute began so a term in the contract you signed when you took up employment with them, wouldnt have any force as it was signed before the dispute began).