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Defender's lawyers failed to submit defences within timescale

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Hi not sure if this is the correct bit of the forum as it concerns a general consumer issue but is set in Scotland.We have taken our Project Manager's wife to the summary claims court (she owned the Design company) for breach of contract.The Design company's negligence cost us 10s of thousands but we can't afford a lawyer to sue for the full amount so we are claiming back the maximum allowed through the Summary cause route in relation to an invoice for PM work. Anyway we have had the initial hearing and a date has been set for proof. The wife has a highly paid lawyer who tried to get the case delayed because of an ongoing criminal case involving the PM (related to our build). The sheriff agreed with us that this was irrelevant and a date in January has been set for a full proof hearing. The Sheriff also told the lawyer to submit their defences 2 weeks from the date the initial hearing was held. The date has passed and nothing has been submitted. Should we make an application to the court to find in our favour as they have not carried out the court's order? Is it worthwhile or should we wait for the full hearing and bring it up then - assuming they submit something before the proof hearing? Do they need to meet these deadlines or can they get away with submitting defences a few weeks before? Appreciate if anyone can help us with this long standing saga.

Edited by IdaInFife
added to be sure

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Sorry should have said that the sheriff agreed with us that it was IRRELEVANT - apologies for any confusion caused.

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hiya - i have added the ir to your post to make sure.


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I would certainly make known to the court that they havent met the deadline for putting in a defence, for two reasons

 

  1. because they should - its a court order, and dont imagine for a second that if it was you who were late that they wouldnt be in there with a motion of dismissal on these grounds alone
  2. because, assuming the proof date remains the same, its giving you less time to work on their defence - bad for you, good for them.

I would be inclined to put in a "FORM 11 Form of minute - no form of response lodged by defender", which looks like this

Rule 8.1(2)

FORM 11

Form of minute - no form of response lodged by defender

Sheriff Court at (place)

Hearing date:

In respect that the defender(s) has/have failed to lodge a form of response to the summons, the pursuer requests the court to make the orders specified in the following case(s):

Court ref. no.: Name(s) of defender(s) Minute(s)

This doesnt render too well on here, but you can get it with formatting at http://www.scotcourts.gov.uk/sheriff/small_claims/forms.asp - scroll down to the table, you will find it there.

I would make the point that they have been given a date and havent kept to it. I would repeat my case and suggest that int the interests of justice and to avoid further delay that the Sheriff decides in your favour.

Will this work? Tbh, I dont think so

First of all they have a fancy lawyer who will no doubt be able to convince the court that their delay was reasonable (or at least acceptable).

Secondly, if you were the defender, and you were going for a motion of dismissal, then I might be more hopeful. After all the onus is on the pursuer to make the running and if he doesnt do that, then there isnt a case. But in this case you are the pursuer, and the Sheriff might be minded, in the wider interests of justice (rather than efficiency) that they should be given every opportunity to rebut your case.

Lastly, their fancy lawyer might well appeal such a decision by the court.

BUT, it will do no harm to shake them up, show that you mean business and wont be pushed around.

One other thing - I assume from what you have said that your claim is at the upper limit - but I am pretty sure that you can add costs to what you are claiming even if it takes you above the limit, so dont forget to add the court costs of bringing the case and putting this minute to the court.

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Thank so much seriously fedup- this is very helpful. I think we will go ahead as you suggest. We should at least be able to have their defence in good time to allow us to counter it. Even having been through this process before with the builder and winning, I am getting so disillusioned with it as it is such a minefield.

We will do all this and what the defender's lawyer will do is probably get a quick initial defence in- as they will be able to add other papers, statements etc up until a few weeks before. But I am gong ahead anyway.

Can I ask one more question- given they have a fancy expensive lawyer- we are claiming the upper amount- do we need to pay their full costs if we loose? This has been preying on my mind. Although not enough to put us off as we believe we have a very strong case given our evidence - it does concern me.

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if its small claims - which is how i read your first post - then its 10% of the value of your claim which they are capped at. If its ordinary roll then its whatever costs they can get by the court. This was the issue in the recent GLC case against Santander - GLC were trying to have it heard as a small claim (being withint the limit), so even if they lost the maximum exposure was 10%. But Santander on the grounds of complexity of the legal arguments got it kicked upstairs to ordinary roll where there is no cap.

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Thanks once again- it is a summary cause action-from 3k to 5k. We are claiming the maximum.

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in that case it is no limit - though the court does have discretion on this matter.

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A word of warning, give some leeway - as Sheriffs have been known to be impatient with those chanping at the bit to get a judgement. If the person defending is involved in other litigation it will not be unreasonable for a rescheduling to be provided without liability. I agree, their reasons for delay are irrelevant. but only if they do not relate to the availability of the solicitor. If he's tied up elsewhere, a new date will not be unreasonably refused.

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Thanks Buzby. We have not done anything with this yet as we have been caught up in pursuing a decree for payment against the builder involved who has now moved to Wales. I can't even begin to tell you how complicated this has been and we still haven't got the money!! Anyway we will submit the paperwork as suggested as it has now been a month since the defender had to submit defences and I think we have been reasonable. What would not be reasonable in our view, is if we get something just before Christmas and we are in court on 7 January and we do not have as much time as we should have been given to refute or come up with responses to any aspect of their defence. And we would not want the proof to be delayed given we have spent 3 years getting to this point. We have more claims waiting to go against the builder and the PM company, so we are very anxious about time as we may run out before we get any additional claims to court.

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*UPDATE*

We eventually went for a pre hearing to the sheriff court and the defendant's lawyer had not produced any defences. Despite our protests and objections, the Sheriff would not allow the decree in our favour, but offered us a delay- not acceptable. So we agreed to go ahead on the date set. After receiving absolutely astonishingly bad submissions from their side, the day before we were due to go to court for the full proof hearing, I received an email from their lawyer wanting to settle for the full amount. At first they wanted us to agree a condition that we would not pursue any further action against their client, we refused. They didn't want to go to court so we won- yeah!

Now we want to consider our next move- whether we should pursue them for their second invoice- also for £5K- is this doable. We will be using the same evidence.

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I would think that if you can show invoices are separate contracts/ agreements then yes, I would have thought so. The problem might be that they will claim that the second invoice is just part of the same agreement and that you are trying for two bites of the same cherry.

For instance, were the invoices "milestones" on completion of the job - for instance when its 25% done I will invoice you for 25%. If the agreement was like that I would say no - they would argue that the case cant be heard in summary cause but becomes ordinary. But, if the agreements were entered into sequentially - for instance there was a commitment to do a particular part of the work, then another distinct agreement for the next part of the work - that would be much more in your favour. Though even then their fancy lawyer - if he's worth the money - would argue that the reality was different and it really was just the one job m'lud.

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Sorry SFUp I thought I had responded to you at length but I must have clicked on the wrong button. Arghh! What I wanted to say that we would probably be seen to be having more than 'one bite at the cherry', as we paid in 3x £5k installments all relating to the one contract for Project Management duties. We can't leave things at getting 5k from them as their negligence cost us 10s of thousands and now we have seen their defence to our claim that they did not undertake the duties for which they were paid- absolutely pitiful even with their fancy lawyer, we feel we need to go after a more sizeable amount. Is it possible for a lay person to navigate their way though the ordinary claims court? Would a lawyer provide us with initial help- we can't afford a lawyer to see us through the full process- we have been there and had to stop as it was costing us 1000s and all we were getting were letters back and forth. I am not prepared to let this pair walk away -they are still ripping people off.

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I fear you may face two problems

  1. as i sketched out above, the view may be put that you had your bite at the cherry and that, as they say, is yer lot. Of course I may very well be wrong in this as its quite a technical issue - indeed its probably fair to say there isnt a black and white, wholly determined answer and it depends on being able to convince a sheriff on the day
  2. i happened to be looking around for something else when i came across a post on another website (written by a lawyer, I would hasten to add, and you should consider that in considering this) to the effect that the outcome revealed the hazards of the lay person getting involved in ordinary cause without specialised help.

you could of course seek advice under legal aid - the free interview - but you might struggle to find a good lawyer who will do even this these days and struggle even more to get your case heard under legal aid. I wouldnt take this on on my own - I would seek help - good help. YOu will pay a minimum amount for any lawyer and can end up achieving nothing. My experience is that its worthwhile paying the extra for someone worthwhile. I had an action two or three years ago where I paid a local lawyer a grand to achieve nothing. THen I took on a worthwhiile lawyer, who cost me nearly twice as much but got me what I wanted (and btw, you could sense the change in attitude of the other side when they learned who was acting for me now)

Your best bet might be to use what you won the first time round to get some paid advice on the wisdom of taking your more extensive case forward - how good/ bad an idea that would be under ordinary cause. Put your "winnings" away as a fighting fund as its likely your lawyer will want paid every so when on the way to success. Or if his advice is that you have had all the cherry you are going to get, at least you know however much you might not like it.

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There is no doubt that this is an encouraging case, but its small claims whereas this summary cause. That said, I would certainly suggest looking at the case in question in more detail and see if its logic could be transferred from one level to another. I would add though, that I reckon its pretty much a certainty that the other side will point out that "this is a small claims decision, doesnt apply" etc - but certainly worth thinking about.

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