Being sued by Cowboy Builders - please help *** Claim Struck Out ***

[wonky100]

Just noticed now when printing off emails and bringing my file up to date that their new solicitor emailed us a copy of their letter yesterday. So they don't know what their client is pursuing us for but they know our email address!

[gezwee]

Thanks Asokn and once again many thanks Gezwee!

 

I too was thinking that I'd have to comply to appear to be being reasonable even though I think they're out of order.

 

This "new" solicitor knows something about the matter as he wrote to us in May 2011. At least his letter in May 2011 quoted the correct amounts paid by and refunded by the credit card, so this kind of blows their claim for more money out of the water at the very least (and I included this in my disclosure list also). The letter received today, even quotes the same file ref so it's not like they're setting this up as a new case. Why didn't this solicitor proceed with their threat of legal action in May 2011? I know my husband spoke to him and I followed this up in an email but then that's when they appointed the unlicensed debt collectors. Grrrr....

 

I will write to them telling them that I'll oblige if they pay for my time and expense in doing so. Should I mention your point re the basis on which they accepted the appointment? I know when I appointed a solicitor to file our aos and defence we had to provide documents and sign an agreement before they'd even consider the matter. I've recently signed another agreement with a solicitor for action re the trespass (but that's another issue which I can't say anything about now but hopefully will be able to at some point!)

 

Just make the point that you are disappointed they appear to have taken appointment without their clients instruction.

 

How have they circumvented CPR 42? I've googled this and relates to change of solicitor. Is this because they've told the court (or the court have told me that they've told them) that they're self representing? Couldn't they just argue that they've changed their mind about self representing?

 

No notice of change between Ikon and this one, Ikon may have advised you they'd ceased to act but the onus is on the claimant to serve notice of change and confirm new service address....... copied the section below for info.

 

 

The application for strike out was due to the non compliance of 1 direction. They've now not complied with 3. Should I point out these failures to their new solicitor? Should I also point out them circumventing court directions and admittance of trespass?

 

Wouldn't bother, it's too late to vacate the hearing without losing the fee now so it's best its discussed in front of the dj.

 

You say include a costs summary. Once of the first 2 applications was for costs but this obviously only included 2 application fees at that time. I since issued the 3rd application for the strike out plus the additional time spent on this matter with Ikon. Can this be changed in any way to include these additional costs or should this just be addressed at Court next week?

 

You can apply for all costs associated with the hearing, time, travel, disbursements etc.... send a summary to the other side pre-hearing and file a copy with the court.

 

Also, the correspondence that I've sent to the Court I've only included the hearing date on it and not the hearing time and I've just noticed from reading my file again that the date and time should be quoted on all correspondence. Maybe just a minor point, but should I copy everything and then include date and TIME on covering letter and walk down to the Courts with it tomorrow?

 

You can do, can't honestly see a dj throwing out your apps for missing the time off though....... ring the court to see if they'll amend by slip.

 

Thanks again

 

CPR 42.1/2 below, if the party hasn't followed the emboldened subsections below then the court 'should' not recognise the newly appointed sols.

 

One of the main reasons for this rule is so that a party is never prejudiced for lack of service address.

 

Gez

Solicitor acting for a party

 

42.1

 

Where the address for service of a party is the business address of his solicitor, the solicitor will be considered to be acting for that party until the provisions of this Part have been complied with.

 

(Part 6 contains provisions about the address for service)

 

Change of solicitor – duty to give notice

 

42.2

 

(1) This rule applies where –

(a) a party for whom a solicitor is acting wants to change his solicitor;

 

(b) a party, after having conducted the claim in person, appoints a solicitor to act on his behalf (except where the solicitor is appointed only to act as an advocate for a hearing); or

 

(c) a party, after having conducted the claim by a solicitor, intends to act in person.

 

 

(2) Where this rule applies, the party or his solicitor (where one is acting) must –

(a) file notice of the change; and

 

(b) serve notice of the change on every other party and, where paragraph (1)(a) or © applies, on the former solicitor.

 

 

(3) The notice must state the party’s new address for service.

 

(4) The notice filed at court must state that notice has been served as required by paragraph (2)(b).

 

(5) Subject to paragraph (6), where a party has changed his solicitor or intends to act in person, the former solicitor will be considered to be the party’s solicitor unless and until –

(a) notice is filed and served in accordance with paragraph (2); or

 

(b) the court makes an order under rule 42.3 and the order is served as required by paragraph (3) of that rule.

 

 

(6) Where the certificate of a LSC funded client or an assisted person is revoked or discharged –

(a) the solicitor who acted for that person will cease to be the solicitor acting in the case as soon as his retainer is determined –

(i) under regulation 4 of the Community Legal Service (Costs) Regulations 20001; or

 

(ii) under regulation 83 of the Civil Legal Aid (General) Regulations 19892; and

 

 

(b) if that person wishes to continue –

(i) where he appoints a solicitor to act on his behalf, paragraph (2) will apply as if he had previously conducted the claim in person; and

 

(ii) where he wants to act in person, he must give an address for service.

 

 

(Rules 6.23 and 6.24 contain provisions about a party’s address for service.)

(‘LSC funded client’ and ‘assisted person’ are defined in rule 43.2)

 

(7) ‘Certificate’ in paragraph (6) means –

(a) in the case of a LSC funded client, a certificate issued under the Funding Code (approved under section 9 of the Access to Justice Act 19993), or

 

(b) in the case of an assisted person, a certificate within the meaning of the Civil Legal Aid (General) Regulations 1989.

[wonky100]

Thanks Gez

 

Just make the point that you are disappointed they appear to have taken appointment without their clients instruction.

Done!

 

No notice of change between Ikon and this one, Ikon may have advised you they'd ceased to act but the onus is on the claimant to serve notice of change and confirm new service address....... copied the section below for info.

Haven't they done this now as the notice of change shows that the new solicitor is replace Ikon, albeit the notice of change that we've been sent hasn't been signed! The name of the solicitor has simply been entered in the signature box. Am I splitting hairs?

 

Will give the Court a call tomorrow about missing off the time on my correspondence - kicking myself for this! Why didn't I notice it before when it was there in black and white all along and I've noticed it now.

 

Thanks again and sorry for being a pest. These guys simply refuse to let sleeping dogs lie!

[gezwee]

Haven't they done this now as the notice of change shows that the new solicitor is replace Ikon, albeit the notice of change that we've been sent hasn't been signed! The name of the solicitor has simply been entered in the signature box. Am I splitting hairs?

 

Nope, Ikon advised you they were no longer acting...... The onus then falls upon the claimant to serve and file change notice to self representation. He didn't, so as far as the rules are concerned Ikon are still acting. The court notes may state otherwise but without correct notice there's been no legitimate change.

 

In effect there are 2 changes with only the 2nd notice served, they've sidestepped/circumvented the rules for the 1st change. I'd go as far as to argue that the sols should not be recognised at the hearing as 42.1 applies.

 

Gez

Edited March 14, 2012 by gezwee

[wonky100]

Thanks Gez

 

Appreciate where you're coming from but I don't think I'm going to attempt to argue this as I think I'm out of my league here as I don't fully understand. Accept that they've sidestepped the 1st change but the notice of change is from Ikon to new solicitors and not from self representation to new solicitors. I don't want to look stupid in front of the dj. But thanks anyway.

[gezwee]

Hi Wonky

 

The decision is yours, although to be clear the new sols are not replacing Ikon. You've got a long hearing allocated on the day, bring it up as an aside during the hearing.... something along the lines of having no service address for the claimant over the period of change. See what the dj makes of it

 

Gez

[wonky100]

Thanks Gez

 

Have made a note to do just that and have put in on my file!

 

Hopefully this will be it (I keep hoping this) until the 20th!

[gezwee]

Hi Wonky

 

You can but state your case, hopefully the dj will see the claim for what it is

 

Gez

[wonky100]

Spoken to the Courts and they're ok with correspondence without the time stated on it - phew! I'd even lugged all the correspondence into work with me this morning just in case, but better to be safe than sorry.

 

Court still show that the claimant are self representing, but that may simply be because they haven't updated their records yet. Leaving it a bit late though, 5 days to go (including the weekend) and counting.......

 

And finally, Court advised that technically the form should have been signed. Not good for a solicitor really........

[wonky100]

Oh what a game this man is playing!

 

In court tomorrow for 3 x applications. One of which is for costs due to the claimant company, at the time of making the application, not having a director, their accounts being overdue and their returns being overdue. Well bit by bit he's brought his company into order and on 16 March finally filed his overdue returns.

 

Statement of return is £1, which I've seen a lot of on Companies House. Have we wasted £80 for this application?

[wonky100]

Another question!

 

We need to provide a schedule of damages by 4.00 pm on 23 March. Hopefully the claim will be struck out but on the proviso that it isn't I need to have this ready as I don't want to fall foul of Court Directions, even if the claimant has on several occassions and even if he gets away with this.

 

The new solicitor's letter head advises that they won't accept documents by email or fax (despite emailing me the notice of change of solictor! Although they did also put a copy in the post), so I'll need to have this in the post special delivery on Thursday at the latest.

 

I'm guessing this is just details of costs incurred to date, plus I'm thinking I may also add the cost of the flooring which has been damaged when laid and the difference in the cost between the contract value and the quote obtained to knock down the structure and rebuild. Is this ok? The claimant co, via Ikon, have already agreed wp to pay my solicitors costs of £1,300+. Can I play ignorant being a lip and mention this?

 

Thanks again

[asokn]

The claimant co, via Ikon, have already agreed wp to pay my solicitors costs of £1,300+. Can I play ignorant being a lip and mention this?

 

Well no, and you know you shouldn't.

[wonky100]

I understand and agree with you Asokn but why should I play by the rules when the claimant refuses to?

[asokn]

So because their conduct has been reprehensible you want to do exactly the same sort of thing?

 

At best you will come across like someone who doesn't know what they're doing and at worst it will come across as a deeply cynical attempt to play the system which will only antagonise the judge.

[wonky100]

With all due respect, I haven't got a clue what I'm doing!

 

I'm being sued by a ltd co who have had legal representives throughout so there's no excuse for their behaviour but so far they've played the system like someone who know exactly how to play the system.

 

I hear what you're saying and won't mention it.

 

But has my £80 cost application been a waste of money and how do I complete a schedule of damages?

 

Thanks

[gezwee]

Hi Wonky

 

Don't start losing sight this late in the day the reason for bringing the apps. This is primarily to bring the claimants conduct to the courts attention and press for directions that will place both parties on a level footing.

 

No point trying to play their game, its one that the courts see every day of the week and invariably the dj will have no truck with it.

 

You are trying to achieve a natural order to proceedings. You've been given the opportunity to state your case during a fairly long allocation.

 

Draft yourself a list of questions to be answered or that you need the courts assistance in clarifying, you are the applicant and should be heard first. The dj will probably consider the effect of strike out, disclosure, and security for costs and the effect on each at the same time. With this in mind you should prepare for him to cross reference each point and have a response ready if he asks you a question.

 

The questions will be in plain English, there's no intent from the dj to trip you up...... it's purely so that he can look at the merits of the case and direct in a fair and proportionate way.

 

i.e;

 

Why do you believe the case should be struck out?

Because the claimant has failed to show cause and failed to adhere to order/s

 

Do you have any evidence of this?

Yes..... documentary

 

Would a further order for disclosure served as an unless meet the objective of the court?

Possibly, but this would impinge on your rights and bring further costs exposure

 

Why would it bring increased costs exposure?

Due to the claimants previous conduct and it's apparent inability to bear a costs judgment in a counter claim.

 

Have a long think about what you'd consider to be logical and fair questions [and the assumption of the dj on hearing the parties response/s]. Somewhere within the Q's & A's the dj will find a position that he believes is fair to both parties.

 

Don't forget the court will always look to the overriding objective for guidance;

 

The overriding objective

 

1.1

 

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.

 

(2) Dealing with a case justly includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

 

(b) saving expense;

 

© dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

 

(ii) to the importance of the case;

 

(iii) to the complexity of the issues; and

 

(iv) to the financial position of each party;

 

 

(d) ensuring that it is dealt with expeditiously and fairly; and

 

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

[wonky100]

Thanks Gezwee

 

20 1/2 hours to go and counting.

 

Will let you have an update in 24 hours!

 

But what about my schedule of damages, which I need to submit by 4pm on Friday? Should I pester tomorrow if the matter is not struck out?

[gezwee]

You'll have to remind me, was the damage schedule applicable to the previous orders?

 

Gez

[wonky100]

Within the Court Orders it was order that the claimant provide an updated schedule of damages by 4.00 pm on 9 March 2012 and that we should provide any counter schedule of damages by 4.00 pm on 23 March 2012.

 

Does this give the claimant the power to amend the amounts shown in their particulars of claim? Albeit they've not complied with this direction,

 

Thanks

[GuidoT]

It is not unusual as litigation progresses for the damages heads to change (as for example the issues narrow) from the initial particulars of claim.

[wonky100]

OK, here we go again!

 

Email received at 5.30 from new solicitors with a witness statement from the Director. It attaches a 31 page document, which we can't print off, which they say they have filed with the court. Funny how they can send us documents by email but they refuse to allow us to send documents by email.

 

The witness statement now states different figures to those in the particulars of the claim.

 

The Directors states that he didn't know that the Ikon hadn't provided disclosure or witness statements and is therefore asking for more time. Surprise surprise!

 

The Directors states that his company is active and is attaching a companies house print off to prove this. Only he only attaches the first page of the report which shows the company is active and not the second pages that shows that his return was only filed on 16 March and that he only became a director on 2 March. He states that there is no need for security of costs as the company is active and has the funds, this apparently is proved by the fact that we got our money back through a charge back. As far as I'm aware and what I was told by my bank, and have it in writing, is that it didn't matter if they didn't have any money in their bank.

 

Once again they've attached the photos which they took by trespassing to "prove" that the structure is ok.

 

They're also saying that they didn't know that Ikon weren't allowed to litigate.

 

They confirm that they appointed debt collectors (pre judgement!). Doesn't mention that the debt collectors are unlicensed. Says that the debt collectors didn't get any response from us - we sent the numerous responses and also appointed a solicitor to stop their harrassment.

 

Guess they'll be at court tomorrow then!

[gezwee]

OK, here we go again!

 

Email received at 5.30 from new solicitors with a witness statement from the Director. It attaches a 31 page document, which we can't print off, which they say they have filed with the court. Funny how they can send us documents by email but they refuse to allow us to send documents by email.

 

Bring it to the dj's attention [conduct and timing], no time available to either digest or rebutt.... should not be admissable on the day

 

The witness statement now states different figures to those in the particulars of the claim.

 

If they now seek to amend quantum of claim, you ask for costs to the date of amended defence [if ordered]

The Directors states that he didn't know that the Ikon hadn't provided disclosure or witness statements and is therefore asking for more time. Surprise surprise!

 

His problem, not yours or the courts

The Directors states that his company is active and is attaching a companies house print off to prove this. Only he only attaches the first page of the report which shows the company is active and not the second pages that shows that his return was only filed on 16 March and that he only became a director on 2 March. He states that there is no need for security of costs as the company is active and has the funds, this apparently is proved by the fact that we got our money back through a charge back. As far as I'm aware and what I was told by my bank, and have it in writing, is that it didn't matter if they didn't have any money in their bank.

 

Lol........ talk about pleading in ignorance

Once again they've attached the photos which they took by trespassing to "prove" that the structure is ok.

 

They're also saying that they didn't know that Ikon weren't allowed to litigate.

 

Their problem [again]

They confirm that they appointed debt collectors (pre judgement!). Doesn't mention that the debt collectors are unlicensed. Says that the debt collectors didn't get any response from us - we sent the numerous responses and also appointed a solicitor to stop their harrassment.

 

All on the record...... he must really want to p**s the dj off

Guess they'll be at court tomorrow then!

 

What's the name of the sols he appointed?

[gezwee]

Oh and, I seem to remember it was Ikon that pleaded the particulars........... surely the claimant doesn't think their conduct is questionable now does he?

[gezwee]

Hi Wonky

 

Something you could run off tonight or tomorrow morning.......costs, print 3 copies and do be generous enough to seek out the claimant sols when you get to court - if only to stuff a copy in his sweaty little palm

 

Post #185 of this thread [courtesy of Citizenb] for guidance

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?331427-Robinson-Way-lifting-a-stay-on-a-County-Court-claim-made-in-July-2009-Happy-Christmas!!&p=3762379#post3762379

 

Gez

[wonky100]

Thanks Gez

 

Been reading through the mountain of paperwork. It gets better!

 

Enclosed is 2 letters to Ikon refering to Mr & Mrs XXXXX - but not us!

 

They've attached an accountancy letter to confirm claimant co is active and solvent - it only confirms co is active and records up to date as at........19 March 2012!

 

They say they're attaching a copy bank statement to prove they are solvent - not attached!

 

They've attached their legal expenses policy which apparently confirms that our costs will be met should they lose. Ok, now they're in mine and my husband territory! No it doesn't. Firstly, there is no name on the document which they have sent only a policy number. I've rang the legal expenses helpline and they didn't seem to know anything about it but obviously once they realised that I wasn't actually ringing about my own policy wouldn't speak to me any further! The document doesn't show any period of insurance. As you would expect, cover is only provided once it has been agreed and there is a 180 day time limitation. Claim form signed 06 Sept 2010, which by my reckoning is 196 days ago! Confirmation that claim has been accepted has not been provided.

 

Witness statement shows the Directors home address not his business address - is this relevant?

 

Statement further advises that his new solicitors advises that the application refers to failure to comply with directions. How can he know this since he hasn't got the file and since we were asked for a copy of the application?

 

Apparently he didn't know that documents or statements were required - so he expected just to issue a claim and hey presto that's the end of it?! Also, he signed the disclosure list which states documents to be disclosed!

 

He wants more time and has agreed to comply by the beginning of the trial window!!!!

 

He wants to be allowed "the period of time in the draft order". No draft order attached also! But this is subject to receipt of file from Ikon - what happens if they never send it???? Failure to comply is all down to Ikon, nothing to do with him - did he never chase to see what was happening???

 

Additional photos attached which aren't weren't included in the disclosure list. These will be the photos that were taken in April 2011 then (as confirmed in an email by them). From the photos it looks like they've stood on the wall of the electricity sub station at the side of our house. Pity they weren't electrocuted!

 

Sorry, for keep going back on myself, but alot to digest! Witness statement also states that Ikon were "instructed by Opus as my legal representatives"! But he states that Opus are debt collectors!

 

This just gets better. Surely the DJ has got to see him for what he is.

 

Off now to email Mr & Mrs XXXXX to let them know about the letters, as I'm in correspondence with them too.