Court proceedings for previous company car contract as guarantor

[The Mould]

rh999

 

I am absolutely gutted for you.

 

Can you please post the details of the hearing, while they are still fresh in your mind, so that I (and anyone reading/following your case) can obtain an understanding as to why the judge refused to hear your case against the Claimants' action.

 

Kind regards

 

The Mould

[rh999]

Hi The Mould,

sorry but been at work.

 

claimant solicitor basically stated that CPR24 is not a "may" deliver within 7 days, it's a must. DJ agreed with him. basically said he could not consider my WS and argument. the solicitor said they had not received the WS from me, and even if they did they would object robustly object to it's inclusuion. as a result the CPR 3.10 i tried to submit as a response to his objection was promptly rebutted for that same reason. not submitted within 7 day's.

 

they basically refused me point blank in any of my arguments becuase i had not delivered the documents on time.

 

the DJ said as a result of this he could only look at what defence i had submitted prior to yhr 7 day period. Of course I had not submitted my defence because the AQ was sent prior to giving me the opportunity to defend. again I was unable to argue this point either. I think the claimants were lying. i think they did receive it but they thought it would look worse on me if they said they had not received it. i only found out 30 seconds before going into chambers that they were using this. i quickly text my wife to get the POD for the delivery of the documents. it did not make a difference. the DJ wasnt going to go against them for some reason.

 

the DJ said I could appeal to him - but only there and then where he would consider my appeal. he then went on to say that he would not acceot my appeal - what is the point of that?? why would he contradict himself after all that.

 

i have leave to appeal and have 28 days to do so. but only on law and procedure - can i appeal on the basis that there was no way he could look at any defence becasue due to the AQ being sent out at wrong time procedure was incoirrect - would this mean we would roll back to that poiunt? or am i wrong?

[The Mould]

Hi The Mould,

sorry but been at work.

 

claimant solicitor basically stated that CPR24 is not a "may" deliver within 7 days, it's a must. DJ agreed with him. basically said he could not consider my WS and argument. the solicitor said they had not received the WS from me, and even if they did they would object robustly object to it's inclusuion. as a result the CPR 3.10 i tried to submit as a response to his objection was promptly rebutted for that same reason. not submitted within 7 day's.

 

they basically refused me point blank in any of my arguments becuase i had not delivered the documents on time.

 

the DJ said as a result of this he could only look at what defence i had submitted prior to yhr 7 day period. Of course I had not submitted my defence because the AQ was sent prior to giving me the opportunity to defend. again I was unable to argue this point either. I think the claimants were lying. i think they did receive it but they thought it would look worse on me if they said they had not received it. i only found out 30 seconds before going into chambers that they were using this. i quickly text my wife to get the POD for the delivery of the documents. it did not make a difference. the DJ wasnt going to go against them for some reason.

 

the DJ said I could appeal to him - but only there and then where he would consider my appeal. he then went on to say that he would not acceot my appeal - what is the point of that?? why would he contradict himself after all that.

 

i have leave to appeal and have 28 days to do so. but only on law and procedure - can i appeal on the basis that there was no way he could look at any defence becasue due to the AQ being sent out at wrong time procedure was incoirrect - would this mean we would roll back to that poiunt? or am i wrong?

 

rh999

 

What date was the Claim (form N1) served on you?

 

What date did you file your acknowledgement of service?

 

What date were the Allocation Questionnaires served by the Court?

 

Depending on the time-line above, the point of law upon which you would appeal is art.6 ECHR right of access to a Court; the procedural error would be the Court's staff admin error in the processing of the proceedings by way of serving the AQs on the parties before you had the opportunity to file your Defence (& Counterclaim) against the Claim. You believe that in the light of the Court's staff said admin error, which caused the contravention of your rights under art.6 ECHR, the judge in the County Court should of excercised the Court's general powers under CPR Pt 3 r.3.10 to allow the late service of your witness statement, which you respectfully requested. You believe that the Claimants' claim has not been disposed of fairly and justly because you have been denied your right to present your evidence in Defence of the same to the Court.

 

If you are going to appeal, you will be required to be committed to the process, this will mean a great deal of study and research on your part with regards to civil procedure and the authorities that you rely upon in support of the arguments and evidence to your Defence.

 

Come back on those above dates please.

 

Kind regards

 

The Mould

[citizenB]

This was a summary judgment hearing wasnt it ?

 

You are, I think, obliged to have any paperwork submitted to both the court and the opposition 7 days prior to the hearing - in this claim if the hearing was for the 15th all the paperwork should have been where it needed to be by the 8th August.. yes ??

[andydd]

Hi all. Havnt read all the above fully.

 

I recently made a SJ application and it appears to me the rules on dates are clear and are a 'must' as stated above.

 

The defendant must serve his defence (reason why SJ should not be granted) at least 7 days before hearing.

 

In my case the defendant did not serve anything and when it came to the hearing the judge pointed this out, he ummed n erred and was going to propose a extension of time, I made it clear that I didnt agree to this and the judge gave summary judgment in my favour, she did briefly look at the points I raised (it should be thrown out as it was abuse of process - re-litigation), but appears to me that even if there was a valid defence, it could IMO be ignored as it wasnt served within the 7 day window (the defendants solicitor hurridly handed me some docs before we went in but I ignored them).

 

However due to the fact SJ's remove someones right to justice it should not be used lightly.

 

Andy

[The Mould]

This was a summary judgment hearing wasnt it ?

 

You are, I think, obliged to have any paperwork submitted to both the court and the opposition 7 days prior to the hearing - in this claim if the hearing was for the 15th all the paperwork should have been where it needed to be by the 8th August.. yes ??

 

Good morning citizenB

 

Yes, that it correct. I did advise rh999 of the "7 days before hearing" rule last week with regards to his WS and evidence in response to Claimants' app for summary judgment.

 

In this case, it appears that there was an admin error early by the Court's staff that was never rectified - the service of the AQs before rh999 had the opportunity to file his Defence. rh999 was not aware of the procedures to the processing of the claim against him, therefore, he did not know that the AQs were served prematurely by the Court.

 

Kind regards

 

The Mould

[The Mould]

Still waiting for rh999 to post up the details with regards to post# 128 and still yet to learn of the reason(s) given by the judge in refusing to hear rh999's appeal.

 

Hopefully rh999 will be back on today with an update on that.

 

Kind regards

 

The Mould

[citizenB]

Ok, thanks The Mould

[andydd]

Good morning citizenB

 

 

 

In this case, it appears that there was an admin error early by the Court's staff that was never rectified - the service of the AQs before rh999 had the opportunity to file his Defence. rh999 was not aware of the procedures to the processing of the claim against him, therefore, he did not know that the AQs were served prematurely by the Court.

 

Kind regards

 

The Mould

 

But is this relevant ?. It occurs to me the SJ runs seperatly to the main claim and can go ahead if defence hasnt been filed but acknowledgment has, not sure the AQ has anything to do with it ?

 

Surely if the OP knew SJ was going ahead then its upto him to make sure he complies with rules, i.e get his defence in 7 days before.

 

Also to add..The SJ from the other side should/must point out the 7 day rule. (As PD 2 (5)), (Did this one ?)

 

Andy

[citizenB]

Snap, I was going to ask when the SJ was received.. I cant find a copy posted on the thread !

[The Mould]

Hi andyyd and citizenB

 

Yes you are correct.

 

The WS of the Claimant (attached in one of rh999's earlier posts) does advise in last para that rh999 must file & serve he response within 7 days of hearing, so rh999 will be required to give a reasonable excuse (to the Court) as to why his WS to SJ was served late.

 

The service of the AQs may be relevant, if the aqs were served prematurely, before the 28 days for filing Defence, that's why I asked rh999 in post#128 to give details of time-line from service of the claim on him, his AOS and the service of the aqs.

 

Hopefully rh999 will confirm/clarify the matter, as we still don't know the reason why a Defence wasn't filed after rh999 filed his AOS.

 

 

Kind regards

 

The Mould

[The Mould]

Hi all

 

Just comming back briefly,

 

On a positive note for rh999, the District Judge did grant him leave to appeal the Judgment against him, the Order will contain the provision to appeal within 28 days.

 

Kind regards

 

The Mould

[Guest]

rh

not a good result there.

as andydd suggests there, the cty courts seem to be wanting/willing to use their cpr 3 powers in favour of a creditor re an extension etc. but, it seems, when its the other way around maybe not so much so!

[andydd]

The SJ deadlines are quite short and strict, more so it appears than normal hearing ones which seem routinely breached, maybe because SJ are meant to be relaitvely quick/simple to get rid of issues quickly and are not meant to devlop into 'mini-trials'.

 

Andy

[rh999]

Hi All

apologies for not coming back on this. needed a break to clear my head, and also had son's A level results yesterday.

I will pull the timeline info for you over the weekend the Mould on the AQ side of things.

 

in answer to everyone's questions - the DJ ummed and erred on my request to allow my WS, but the claimant solicitor was very robust in his objection saying no excuses - docs needed to be submitted 7 days before.

in response i tried to state that i only know about the hearing 3 weeks ago when the court told me on the phone. they sent me new documents through, but i was not in a position to look at them properly until last week.

it was only Friday I found out about the requirement to submit 7 days before.

[andydd]

Hi.

 

I was in same position but tables turned, the other side (who had solicitor) didnt serve docs in the 7 day deadline and I robustly opposed any further delay and Judge agreed with me so I have to say I would agree with Judge in your case.

 

Possible help is did the other side mention the 7 day deadline in their paperwork ?. They are supposed to !..so if they did you havn't got much excuse IMO but if they didnt then that is a possible reason to appeal, also the above mentioned delays and then fact you are a LiP should be mentioned.

 

Andy

[Guest]

rh - so j did 'think' about allowing. but, as andydd says, does work both ways.

andydd - on thread there is their WS which mentioned the 7 days, #48. when was that served?

[rh999]

Hi the mould,

Order of events from receipt of claim through to last week are as follows;

 

Original claim received from Court 1 beginning of March. I filled in the response pack stating that I intended to defend the claim as I believed the claimant had terminated the contract in error. This was sent to court 1 on the 6th March.

 

On the 9th March court 1 sent out a notice of transfer of proceedings to court 2 with the following text;

To all parties

A defence to this claim has been filed. As the defendant is an individual the claim has been transferred to the court covering the area where the defendant lives or carries out business. Please read the accompanying documents carefully and note that where enclosed the allocation questionnaire should be returned to court 2 by the date shown.

 

Also received was the notice that a defence has been filed, also dated 9th March. Following is the text within this;

The defendant has filed a defence, an allocation questionnaire is also enclosed which contains notes for guidance on how to complete it.

AQ due date was 216th March. My AQ was submitted to court on the 25th March. I received the claimants on the 26th.

 

Both AQ's stated we were happy to try and settle out of court.

 

Court ordered a stay of proceedings on the 5th April in their order. The claim was stayed until 14th May. It became clear by the 14th that the claimant had no interest in negotiating, and was doing it to make them look good with the court.

 

The next order received from court was dated 17th May stating trial to take place on the week commencing 15th October.

It said pre-trial check lists to be submitted by 4th September.

 

Last item on the order is as follows;

Because this order has been made by the court without considering representations from the parties, the parties have a right to apply to have the order set aside, varied or stayed. A party wishing to make an application must send or deliver the application to the court (together with any appropriate fee) to arrive within seven days of service of this order.

 

On the 22nd June the claimant submitted an application notice, as follows;

that there be summary judgement for the claimant pursuant to part 24 of the civil procedure rules and/or strike out the defence pursuant to clause 3.4 of the CPR in the sum of £xxxx plus interest pursuant to section 69 of the county court act 1984 and costs.

 

The defence filed by the defendant has no realistic prospect of succeeding and there is no compelling reason why this case should be dealt with at trial.

 

Note - the claimant did not send a copy of this application to me. It was sent to court. I did not receive the notice from the court as follows;

 

Notice of hearing - dated 27 June 2012

Take notice that the hearing will take place on 15th August

At court 2

 

When you should attend

1 hour 30 minutes has been allowed for this hearing.

 

Note neither the notice of hearing or the actual application had anything in there referring to any WS to be submitted at least 7 days before the hearing.

 

it was however on the claimant WS on the last paragraph stating "the defendant is alerted to the provisions of part 24.5(1) in the event that the defendant seeks to rely upon written evidence in response to this application copies of his statement must be filed with the court and served upon the claimant solicitors at least 7 days before the summary judgement hearing.

 

As I have stated in previous posts, I called the court as I had not heard anything, and they told me that there was a hearing on the 15th August. They sent me replacement copies which I received in the last week of July. I went on holiday and returned on the 8th August and got started on the response, at which point I was alerted by the mould to the fact I needed to submit 7 days before.

 

In essence I have had no opportunity throughout ths process to actually pull together any defence, as one thing or another has happened stopping me.

Court 1 sent out AQ’s stating a defence has been filed. This is incorrect as I stated in my initial response pack that I “intended” to defend. Not sure if this means I have leave to appeal and if so whether it is worth going for it or not.

One thing I didn’t say is the DJ stated that although he found my evidence interesting, he felt that had it gone to trial he would find in favour of claimant because as far as he is concerned the lack of company was of great prejudice to the claimant so therefore they had right to cancel the contract...

[andydd]

Having read the above Im afraid I still dont think you have much to argue.

 

The whole process before the SJ is irrelevanmt, think of the SJ as a whole new process, whilst the timescale does seem short, you were informed of the SJ giving you time (although not much) to prepare a defence (or at least a reason as to why you at least HAVE a valid defence, a SJ doesnt need that much detail).

 

Its not upto the court to tell you of the 7 day deadline, Im afraid that you should be aware of the CPR rules (I bought myself a big chunky book), BUT bear in mind the other side does have to inform you and it seems they did, I also dont believe they have to serve you with the SJ, they have to serve the court who then serve you (might be worth checking this point).

 

So your appeal can really only say that you are a litigant in person and its hard for LiP's to know all the CPR's, the tim,escale whilst possible was very short and finally there would be no real prejudice to the other side whilst you have had your chance of justice denied (there maybe some human rights issuehere).

 

Andy

[rh999]

Hi Andy

I think your correct as far as the SJ hearing is concerned. I wouldn't be appealing on that point though The Mould thinks I may be able to appeal due to incorrect processes by court staff when they gave out the AQ's at the beginning. he asked to pull together a timeline of events. I think the point is get the claim back to the beginning again which will allow me to then submit a defence in good time. assuming I have a defence of course.

[andydd]

Not sure if you can appeal regarding earlier aspects such as the AQ, etc..Surely the SJ has killed the case dead, and it would appear that you did have suffiecient time to respond to it.

 

The fact that SJ are quite quick and dont have the long delay period before the hearing and have very tight deadlines is perhaps why the are used, it is very easy to mess things up..as the other sides solicitor found out in my case..you miss the 7 day deadline and youve probably cocked it up !

 

Andy

[The Mould]

Hi the mould,

Order of events from receipt of claim through to last week are as follows;

 

Original claim received from Court 1 beginning of March. I filled in the response pack stating that I intended to defend the claim as I believed the claimant had terminated the contract in error. This was sent to court 1 on the 6th March.

 

On the 9th March court 1 sent out a notice of transfer of proceedings to court 2 with the following text;

To all parties

A defence to this claim has been filed. As the defendant is an individual the claim has been transferred to the court covering the area where the defendant lives or carries out business. Please read the accompanying documents carefully and note that where enclosed the allocation questionnaire should be returned to court 2 by the date shown.

 

Also received was the notice that a defence has been filed, also dated 9th March. Following is the text within this;

The defendant has filed a defence, an allocation questionnaire is also enclosed which contains notes for guidance on how to complete it.

AQ due date was 216th March. My AQ was submitted to court on the 25th March. I received the claimants on the 26th.

 

Both AQ's stated we were happy to try and settle out of court.

 

Court ordered a stay of proceedings on the 5th April in their order. The claim was stayed until 14th May. It became clear by the 14th that the claimant had no interest in negotiating, and was doing it to make them look good with the court.

 

The next order received from court was dated 17th May stating trial to take place on the week commencing 15th October.

It said pre-trial check lists to be submitted by 4th September.

 

Last item on the order is as follows;

Because this order has been made by the court without considering representations from the parties, the parties have a right to apply to have the order set aside, varied or stayed. A party wishing to make an application must send or deliver the application to the court (together with any appropriate fee) to arrive within seven days of service of this order.

 

On the 22nd June the claimant submitted an application notice, as follows;

that there be summary judgement for the claimant pursuant to part 24 of the civil procedure rules and/or strike out the defence pursuant to clause 3.4 of the CPR in the sum of £xxxx plus interest pursuant to section 69 of the county court act 1984 and costs.

 

The defence filed by the defendant has no realistic prospect of succeeding and there is no compelling reason why this case should be dealt with at trial.

 

Note - the claimant did not send a copy of this application to me. It was sent to court. I did not receive the notice from the court as follows;

 

Notice of hearing - dated 27 June 2012

Take notice that the hearing will take place on 15th August

At court 2

 

When you should attend

1 hour 30 minutes has been allowed for this hearing.

 

Note neither the notice of hearing or the actual application had anything in there referring to any WS to be submitted at least 7 days before the hearing.

 

it was however on the claimant WS on the last paragraph stating "the defendant is alerted to the provisions of part 24.5(1) in the event that the defendant seeks to rely upon written evidence in response to this application copies of his statement must be filed with the court and served upon the claimant solicitors at least 7 days before the summary judgement hearing.

 

As I have stated in previous posts, I called the court as I had not heard anything, and they told me that there was a hearing on the 15th August. They sent me replacement copies which I received in the last week of July. I went on holiday and returned on the 8th August and got started on the response, at which point I was alerted by the mould to the fact I needed to submit 7 days before.

 

In essence I have had no opportunity throughout ths process to actually pull together any defence, as one thing or another has happened stopping me.

Court 1 sent out AQ’s stating a defence has been filed. This is incorrect as I stated in my initial response pack that I “intended” to defend. Not sure if this means I have leave to appeal and if so whether it is worth going for it or not.

One thing I didn’t say is the DJ stated that although he found my evidence interesting, he felt that had it gone to trial he would find in favour of claimant because as far as he is concerned the lack of company was of great prejudice to the claimant so therefore they had right to cancel the contract...

 

Good evening rh999

 

Thank you for posting those time-line details.

 

I did suspect (based upon what you had posted) that there had been an administration error by the Court's staff early on. It's a shame that you were not aware that service of the AQs within 3 days of your Acknowledgement of service being filed was premature, as you could have alerted the Court to this error.

 

As stated previously, there may be an issue with your case regarding art.6(1) ECHR, whether this would be sufficient to set aside the judgment and roll the case back to allow you to file a Defence would, in all honesty, depend upon whether the Appeal Court considers that you do have a Defence against the claim and whether it's realistic in order to set aside the judgment.

 

As you point out, the DJ said that considering that your company was dissolved, he saw that the Claimant's rights were prejudiced. This would be the high hurdle that you would have to overcome in order to convince the Appeal Court to set aside.

 

Any litigant to any civil action, whether represented or not, is expected by the Courts to be committed to the process of civil procedure and, as pointed out by me and others, you would need a reasonable excuse as to why you did not take heed of the Claimant's notice written in his witness statement informing you that you must file/serve your response to his SJ within 7 days of the Hearing.

 

Perhaps, after 3 long years in this dispute, it might be a good idea to cut your losses. You will have learned a great deal from this matter that will help you in any future actions and you can also pass on the knowledge that you have gained therefrom to your children which will undoubtedly help them in their contractual relationships when they are young adults.

 

In the alternative, I would advise you to seek independent professional legal advice as to your position and then decide what you want to do. I personally believe, again, based upon the details that you have posted here, that you have an argument based on the Claimant acting in haste and repudiating the contract with the company, however, if you do undertake to challenge the judgment, then be prepared for a Mammoth legal battle.

 

Finally, as to service of the Claimant's sealed application, CPR Pt 23 Practice Direction 23A para.23APD.4(1) provides that: "Unless the court otherwise directs or paragraph 3 or paragraph 4.1A of this practice direction applies the application notice must be served as soon as practicable after it has been issued and, if there is to be a hearing, at least 3 days before the hearing date (rule 23.7(1)(b))".

 

Kind regards

 

The Mould

[Ganymede]

I would be VERY wary of appealing on article 6(1).

 

I think the DJ summed it up perfectly, how can the Claimant not be prejudiced? You can't have a contract with something that doesn't exist!

 

No disrespect to the Mould as he is a very knowledgeable chap but to encourage the OP to appeal is reckless in my view. It's all very well advising him but it's not his money/livelihood that's at risk, it's the OP's and the OP will have to suffer the consequences and has already been hit with hundreds of pounds in costs based on The Mould's advice.

 

The Mould has it spot on when he said that the OP should seek professional legal advice.

[The Mould]

I would be VERY wary of appealing on article 6(1).

 

I think the DJ summed it up perfectly, how can the Claimant not be prejudiced? You can't have a contract with something that doesn't exist!

 

No disrespect to the Mould as he is a very knowledgeable chap but to encourage the OP to appeal is reckless in my view. It's all very well advising him but it's not his money/livelihood that's at risk, it's the OP's and the OP will have to suffer the consequences and has already been hit with hundreds of pounds in costs based on The Mould's advice.

 

The Mould has it spot on when he said that the OP should seek professional legal advice.

 

Ganymede

 

I have not caused rh to lose his case nor have I caused him to suffer any loss. If you would peruse this thread from post#1 to this post you will see that I have not given any reckless advice to rh.

 

I have not encouraged rh to Appeal, I clearly stated that he should seek independent professional advice as to his position regarding the judgment against him and whether he wants to challenge the same.

 

Read rh's case again please, slowly, post by post.

 

Kind regards

 

The Mould

[rh999]

Hi all,

I would confirm the Mould's comment that he did not encourage me to appeal or do anything I did not want to do. I was fully aware that the court may kick my case out as I did not submit docs on time. my hope was they would be sympathetic as I am a LIP. They did not. bearing in mind the likely losses i would endure as a result of appealing, I have decided to cut my losses on this and not appeal. I now have to live live with the CCJ even though the creditor left it two years to even do anything with this despite my requests to try and resolve. the whole thing has left a bad taste in my mouth.

 

I am not in any position to pay this in one lump (it is over £10k now with costs) so who do i send an offer to pay in instalments? i would rather it wasn't the claimant, as I would want it all on record with the court as it wouldn't surprise me if they try something underhand. any advice on this process would be appreciated.

 

thanks