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

[AndyOrch]

Some excellent advice there from Mike, Wonky.....turn the thumb screws and anticipate their next move.

 

Regards

 

Andy

[Mike_hawk]

Just realised you may not know what a part 18 request is, rule and pd at the following links:

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part18

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_part18#id3585785

 

Anyway, Part 18 is for information/clarification of an issue - not to be used for requesting docs.

 

Plenty of templates kicking around on the site, content/form should consist of the following;

 

 

 

IN THE ................ COUNTY COURT

 

BETWEEN

 

........................ CLAIMANT

 

AND

 

...................... DEFENDANT

 

 

____________________________________________

 

PART 18 REQUEST FOR FURTHER INFORMATION

____________________________________________

 

TO;................................ (CLAIMANT)

 

 

PLEASE ANSWER THE FOLLOWING QUESTIONS:

 

1...........

2..........

3..........

.

.

.

.

.

 

TAKE NOTICE THAT YOU ARE REQUIRED TO ANSWER THE ABOVE REQUEST WITHIN 14 DAYS OF SERVICE OF SAME UPON YOU

[wonky100]

Morning all

 

I've just spoken with the Courts and thought I would share some very good news with you - CASE STRUCK OUT!!!!

 

We will not get anything in writing about this as the Order of 10 July said that the case would be automatically struck out without further order if the claimant didn't comply.

 

I was told to wait a week to 2 weeks and then chase up a decision on costs.

 

Yes, the claimant can apply to have the strike out set aside, but this will cost them and if the case is reinstated, they'll still have to pay the fee.

 

The court have told me that I do not need to respond to their letter as the case has been struck out. So, I'll sit on it for a while and see if we hear anything else.

 

Thank you so much for everyone's help and support. I really can't thank you enough.

[Mike_hawk]

Woohooo....... excellent news, very pleased for you Wonky

[AndyOrch]

Well done Wonky excellent news

 

I will amend your thread title to reflect the result.

 

Delighted for you!!!

 

Regards

 

Andy

[unclebulgaria67]

Good news and well done !!!

 

Wonder if their solicitors will still be arranging this additional independent survey. Might be worth (?) a reply, just saying that this is now irrelevant per the order of the court dated 10th July 2012. Or sit and do nothing, letting them waste their time/money.

[Mike_hawk]

Hi Wonky

 

Could I suggest a brief statement to the court [before they close the file] requesting deemed costs are included, Rule 44.12 would apply to your case.

Costs order should be applied by right but if it's missed it's further aggro to backtrack over it.

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part44#IDABZ1HC

Edited July 27, 2012 by Mike_hawk

[wonky100]

Hi Mike

 

I've already written to the courts asking for our costs. I didn't specify any particular rule though. I just listed our costs and sent them a copy the solicitors invoice that we received in October 2011 and a copy of the SJE's invoice from April 2012.

 

Hoping this will be sufficient.

 

Thanks

[Mike_hawk]

It should be, just a little concerned that the clerk advised you that it would be struck out without further order...... if deemed costs are applied it would require a written order, wouldn't rely too heavily on anything a court clerk tells you.

 

There's 2 strings to this, 1 is the obvious.......... you get your money back [assuming he's got any], the second is the not so obvious CPR 3.4 (4) ©, affords you further protection from the claimants future conduct

 

(4) Where –

 

(a) the court has struck out a claimant’s statement of case;

 

(b) the claimant has been ordered to pay costs to the defendant; and

 

© before the claimant pays those costs, he starts another claim against the same defendant, arising out of facts which are the same or substantially the same as those relating to the claim in which the statement of case was struck out,the court may, on the application of the defendant, stay(GL) that other claim until the costs of the first claim have been paid.

Edited July 27, 2012 by Mike_hawk

[Mike_hawk]

Apologies for the formatting, my work pooter doesn't like this site..... will tidy it up a bit tonight

[wonky100]

There was something at the end of the order about costs. I will have a look at it tonight and post up what it says.

 

Thanks again (not celebrating yet but certainly smiling!)

[Mike_hawk]

I think I'd be smiling too after all this malarkey

[GuidoT]

Good stuff, would not surprise me if they attempt to get it reinstated though, after all their dubious activities.

[wonky100]

We wouldn't be surprised if they didn't try and reinstate either. Only time will tell!

 

Have checked the Orders and all it says re costs is "Costs of today are in the case". Will my simple email requesting costs, with a breakdown and copy invoices, suffice?

 

Also, had 2 letters from the claimant's solicitors today! Both dated the same and post marked the same date but send separately incurring extra costs. 1 page letters each of them. The postage on one is 44p, the postage on the other is £1.24!!!

 

One is without prejudice save as to costs - they'll instruct a third party to remove and restore but we have to meet our own costs. Have already told them this is not acceptable. I'm not having anyone they appoint considering who they've appointed previously. Also, I'm not having them remove and pay my own costs and have absolutely nothing to show for our £000s costs. I accept that we still have a lot that we need to do on the structure.

 

The other isn't without prejudice - they'll instruct a third party to repair and we pay the contract value, but again, we have to meet our own costs. Again, not having anyone they appoint considering their previous appointments. Also, why should I have to pay our costs to defend ourselves over something they should have simply got right in the first place.

 

I've read somewhere that correspondence that isn't marked without prejudice but which relates to settlement/negotiation out of court shouldn't be disclosed and should be treated as without prejudice. I've also read that correspondence that is marked without prejudice which isn't privileged should be disclosed.

 

Oh, and lets not forget, the case is STRUCK OUT!

 

I'm not going to respond to these letters. They know how the land lies with us, we've told them and in our opinion we've been very reasonable but they refuse to acknowledge. Also, they haven't let us have the copy documents that we requested and from what I understand as per CPR these have to be disclosed within 7 days.

 

They know they haven't paid and therefore know that the case is struck out. They were at the hearing and also will have received the written orders.

 

I just don't understand what their aim is in sending us further letters.

 

Time will tell.

[Mike_hawk]

Hi Wonky

 

Costs of today would have been the hearing only, no order until such time that the case is concluded

 

I think it would be prudent to get a request into the court before someone closes off the case file.

 

Would guess your costs to date are in the region 3-4k, if you request the order and relief is granted [no reason that it shouldn't be], it's a hell of a risk for them to attempt to set-aside. Not forgetting they'd be estopped from further action until your costs were paid.

 

Oh and, their aim......... probably a last ditch attempt to salvage something from this in the hope you don't know the current position.

[wonky100]

And another letter received from the claimant's solicitor!!!!

 

This is dated 27 July and posted 27 July (not sat on it for 2 or 3 days as with previous letters - we have kept every envelope).

 

It confirms that they have received our letter confirming we will pay their reasonable costs to photocopy the documents on 24 July, yet they only respond on 27 July (ok I know they'll have other matters to deal with), but they want us to confirm that we agreeable to pay 50p per copy (fine) but they don't know how much papers they have other than there are lots (we can count the papers when we get them and pay - I'm sure they'd know if we didn't pay the full amount!) and they want us to confirm by 30 July - impossible! It's the 28th and it's a Saturday.

 

I would like these copy documents, but why should I pay for them since the case is struck out? I don't want to ignore but also do want to ignore. What should I do?

 

As the case has been struck out since we confirmed our agreement to their costs, could we request these documents if the strike out was set aside?

 

Who would have thought we would receive so many letters after the case had been struck out?!

[citizenB]

I rather suspect that you wont get your hands on those documents unless you pay for the copying costs, Wonkey.. so if you think they are going to be of use, then you might just have to agree to that.

 

In the event that they do ask for the SO to be set aside, then at least you will have that information.

[Mike_hawk]

Wonky

 

Did you read CPR part 3?

 

There will be a purpose to their current activities, my guess would be they are setting this up to apply for relief [3.9]. I'd be more concerned with enforcing my position re: costs on the s/o, if they are granted no relief the s/o stands and they will no longer be under any obligation to disclose. 'If' they secure relief and the case is reinstated you have their correspondence and can enforce disclosure as necessary for your case.

 

Don't get drawn into a debate with them, stick to the court timelines and secure your costs.

 

 

3.9

 

(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order the court will consider all the circumstances including –

(a) the interests of the administration of justice;

 

(b) whether the application for relief has been made promptly;

 

© whether the failure to comply was intentional;

 

(d) whether there is a good explanation for the failure;

 

(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol(GL);

 

(f) whether the failure to comply was caused by the party or his legal representative;

 

(g) whether the trial date or the likely trial date can still be met if relief is granted;

 

(h) the effect which the failure to comply had on each party; and

 

(i) the effect which the granting of relief would have on each party.

 

 

(2) An application for relief must be supported by evidence.

[Mike_hawk]

If you haven't yet sent the w/s we discussed on here the other evening you should consider getting one filed, make it as damning as possible on the other side. You make the case to rebutt any attempts to reinstate this......3.9(1)(e) & (f) are important to your case, if the other sides conduct [and its counsel] have been questionable or poor use it against them, if they've failed to adhere to previous orders, say so. Make the case that the failure to file the fee was not a one-off.

[wonky100]

Hi Mike

 

What are you saying? Don't bother about the documents?

 

If they are not granted any relief with regards to the S/O then surely we don't need the documents.

 

I appreciate what CitizenB says about the documents. They obviously don't want us to have them. But how can I agree to their costs, if I don't know much it's going to cost? Surely they'll know how many documents there are when they raise an invoice? How can I respond when they want to know by Monday?

 

I've already requested my costs and am waiting to hear from the Courts. I will chase again next week, but I don't want to upset the clerks and not get my costs.

 

If we get our costs, I understand that they can't start another claim until they pay our costs (which I don't think likely or else why didn't they just pay the court fee?).

 

With regards to 3.9 above, this is all too much!

 

(a) the interests of the administration of justice; - the courts are surely going to agree that the overriding objective is to hear this matter

 

(b) whether the application for relief has been made promptly; - how long is a piece of string? They knew that the claim would be struck out if they didn't pay by 17 July on 10 July. They've had almost 3 weeks since the Order was made and almost 2 weeks since the matter became S/O.

 

© whether the failure to comply was intentional; - of course the failure to comply was intentional. He advised the Court he was meeting his client on 11 July. This should have been sorted then.

 

(d) whether there is a good explanation for the failure; - none that I can see.

 

(e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant preaction protocol(GL); - he's NOT complied at every opportunity.

 

(f) whether the failure to comply was caused by the party or his legal representative; - who knows, but he's certainly received instructions from his client re without prejudice settlement so the issue of paying the fee must have been discussed.

 

(g) whether the trial date or the likely trial date can still be met if relief is granted; - we've already missed one trial date. How can the other trial window be met with only 5 weeks to go?

 

(h) the effect which the failure to comply had on each party; and - it's been catastrophic to us as had the whole process.

 

(i) the effect which the granting of relief would have on each party. - ditto the above.

 

The only point to their benefit is point a, but if they wanted justice surely they'd have simply got on with it?

 

(2) An application for relief must be supported by evidence. - what kind of evidence. Whoops, sorry I didn't pay despite the deadline having been extended on 3 occasions?

 

Sorry, if the above seems a little tetchy, I'm just so frustrated.

 

I really do appreciate everyone's advice.

 

Thanks

[Mike_hawk]

Hi Wonky

 

Tetchy, I can understand...... don't worry

 

What I'm saying is the docs are at this moment in time a big fat red herring..... since when has it been tortious to agree copying costs within 3 days when there's a duty on them to disclose all the way through the case? It's a game, trying to pull your chain enough to try to get you to react.

 

If they were to get the case reinstated you can return to disclosure at any time, your efforts should be focused on reminding the court of the claimants conduct and ensuring they are granted absolutely no relief.

 

You have enough ammunition to prevent this case ever seeing the inside of the court again, use it ...... w/s to include every date they've failed to adhere to, every order they've failed to comply with, every direction they've failed to comply with, every disclosure they've withheld......

Edited July 28, 2012 by Mike_hawk

[wonky100]

Thanks Mike

 

I'm drafting our W/S now! But need some more help please.

 

Please can someone point me to the correct section of CPR which states that documents must be served at least 5 working days before a hearing. I've had a look all through CPR 6 and can't find it. I know the DJ referred to this at the hearing on 10 July. They failed to comply with this rule on at least 2 occasions, so this would be very useful.

 

Thanks

[Mike_hawk]

Hi Wonky

 

Try CPR 2.8 & 2.9

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part02

[wonky100]

Thanks

 

Another question! Can anyone tell me what a CMC is? ie "It being agreed by the parties to proceed today as a CMC".

 

Thanks again

[wonky100]

Found it! Case Management Conference.

 

Thanks anyway