Creditor has made claim through court - **STRUCK OUT - THEN REINSTATED**

[DonkeyB]

Well done. Their balls weren’t as big as yours, clearly.

[AndyOrch]

Well Done Kazzie as we envisaged. I have amended your thread title to reflect your result.

 

 

Regards

 

Andy

[Kazzie]

Thanks, and thanks to all who advised me.

[sillygirl1]

You can't say 'We told you so'.

 

Many of these companies think people will not defend a court case because 'morally' they know they are in the wrong, but we know otherwise.

 

The ability of the 'common man' to come up with a concrete defence against the poorly particularlised claims of these big boys must be hitting this so called industry hard.

[havinastella]

did you ask for a wasted costs order? I really hope you did!

 

Congrats

[citizenB]

Oh this is excellent news

[Kazzie]

did you ask for a wasted costs order? I really hope you did!

 

Congrats

 

We asked the judge if we could claim costs and he rather put us off of it. He said something about claiming costs could take a while, and his attitude seemed to be that we should quit while we were ahead!

We also asked him if that was the end of it now that it had been struck out and were surprised when he said not necessarily! He said that technically they could come back for a second bite of the cherry but that it would be very bad form if they did.

 

For this reason we decided not to push for costs in case it provoked them into this second bite!

[MrHat]

Well done kazzie. A pleasing read, this thread

[Kazzie]

Bad news. IND's solicitor has made an application for a hearing to have the claim restored! They have also asked that the substantive hearing be dealt with at the same time. Hearing is coming up soon.

As far as I can tell the judge has only ordered that the hearing to have the claim restored is heard on this date.

 

The solicitor says that IND instructed them by email to arrange representation at the trial but that this email must have become 'stuck' in the system after they had server problems so was not actioned. They stated that they didn't become aware of this until they recieved notice from the judge that the claim had been struck out.

What a load of rubbish! They obviously presumed we wouldn't turn up so they didn't send anyone thinking they would get a win by default. I am so mad

[DonkeyB]

Rubbish. A representative solicitor would have called or emailed them with a case report within 24 hours. They are lying.

[AndyOrch]

Can you post up the Order Kazzie verbatim (less any identifiable data) the devil is in the detail.

 

Andy

[Kazzie]

Can you post up the Order Kazzie verbatim (less any identifiable data) the devil is in the detail.

 

Andy

 

It says very little but I have posted it below. What I would like to know is this, if the email got 'stuck' that IND sent them asking for them to arrange representation - then why did they send me a copy of their bundle well after the date that they said the email got 'stuck. If they sent me a bundle then they must have known there was a trial date!

 

 

Notice of Hearing of Application

 

The hearing of the claimant's application for the matter to be restored (see copy attached) will take place at (time) at (court) with a time estimate of 15 minutes.

[DonkeyB]

You can oppose this and apply yourself for a strike out. You can go to court and challenge their version of events, ie. by asking how a solicitor would normally report back, and why they did not notice this earlier. Their actions, if delayed for some reason they should have known about, could prejudice you.

 

For example, you should be able to ask their rep how the solicitor appointment process normally works and how they report back once a hearing is over. It could make IND look stupid if the reason given for reinstatement is proved to be unlikely.

[DonkeyB]

What evidence was supplied with this? There’s more, surely?

[sillygirl1]

You now have a case to take the solicitors to the Solicitors Regulatory Authority, they are taking the proverbial here bigtime. They sound completely disorganised.

[Kazzie]

In section 3 of the Application notice under the question 'What order are you asking the court to make and why?' Hegarty's have replied with:

1. This matter be restored with, if possible, the substantive hearing to be dealt with at the same time as this application. Alternatively a new trial date to be listed.

2. No order as to costs.

 

Under question 10 ( What information will you be relying on, in support of your application?), Hegartys have ticked the box which says 'the evidence set out in the box below'. This is what it says in the box below:

 

I have recieved the order of District Judge xxxx dated xxxx confirming that the matter has been struck out. Upon receipt it was not clear what had exactly happened as I had no record of this matter.

 

Upon taking instructions from the Claimant and making enquiries with the firm's IT department, I can confirm that this firm was instructed by email on xxxx to arrange representation at the trial on xxxx.

 

Regrettably, a problem arose with our email system and these instructions were not dealt with. Upon making enquiries it would seem the Claimant submitted instructions to this firm via email on xxxc, but unfortunately the email became "stuck" and was not actioned.

 

I believe that the Claimant has a good chance of success in this matter. Indeed a copy of the statements, assignment and letter before action have previously been filed and served by the Claimant. Therefore directions have been complied with, including the filing and service of the Claimants witness evidence directly by the Claimant on xxxx. I am not sure from the terms of the Order of the xxxx if the Learned District Judge xxxx took into account the Claimants evidence, which should have been on the Court file.

 

It is regretable

[Kazzie]

Sorry, posted to quick, am trying to write this on my mobile. Continued below:

 

......that an error has been made by this firm through no fault of the Claimant. I firmly believe the Claimant should not be prejudiced by this error.

 

I would respectfully request that the Court restore this matter and in an effort to keep all parties costs to a minimum, hear the trial at the same time as this application.

[DonkeyB]

We asked the judge if we could claim costs and he rather put us off of it. He said something about claiming costs could take a while, and his attitude seemed to be that we should quit while we were ahead!

We also asked him if that was the end of it now that it had been struck out and were surprised when he said not necessarily! He said that technically they could come back for a second bite of the cherry but that it would be very bad form if they did.

 

For this reason we decided not to push for costs in case it provoked them into this second bite!

 

 

Well, for a start, the judge should now certainly be awarding costs against them.

[DonkeyB]

Next – can you redact and scan the documents they sent in their bundle?

[DonkeyB]

I would also suggest you need to ask if this was the ONLY or issue where the email system was messed up. This also begs the question – as the solicitor had instructions in the case generally, and was receiving correspondence, and would have been informed of the hearing date rather than the client, why did this not flag up? It is gross incompetence by Hegarty’s. You are blameless, and their negligence should be an issue between them and their client, and should not prejudice you.

 

For example, if you forgot to turn up, would a judge allow you to set aside a default judgment? I doubt it.

 

Their defence is not about their email problems, but that they really just forgot to deal with it. That is not good enough.

[citizenB]

Does Kazzie have the opportunity to pop in a witness statement in response.. saying why she believes none of this should go ahead ?

[DonkeyB]

I’m sure she has.

[Kazzie]

Well we have 14 days until the court date (I may just as well say the date because they will know who we are by now anyway should they visit the site!)

Do I still have time to send the court a witness statement? If so and you think that it's advisable, would someone be available to help me with it?

Their bundle is 78 pages. Some of it consists of bank statements from the alleged account that the claim is based on and there are quite a few pages from a commercial law report 'William and Glyns Bank Ltd v Barnes'.

 

Are there any documents in particular I should post up?

 

They have also enclosed some of the details I requested regarding the assignment. Under the 'Wheras' heading it says that I am indebted to the vendor in sums due under a Consumer Credit Agreement.

They never did supply this CCA to me or the court despite it being requested, yet they are using this CCA as evidence against us!

[citizenB]

I think any Witness statement/defence needs to be with the court and the opposition 7 days prior to the hearing, so although you probably have a bit of work to do - you do have a bit of time in which to do it.

 

You need to go through all their assertions and see if there are areas that will need questioning - proof - rebutting.

[Kazzie]

You now have a case to take the solicitors to the Solicitors Regulatory Authority, they are taking the proverbial here bigtime. They sound completely disorganised.

How do I go about that? This is something I would like to pursue.