Preparing a defence for a court claim for Renewal Commission

[AA123]

Update,

 

I received 2 letters today from the court:

 

1. That the claimant failed to file their N149 and pay the fee by the required deadline - 1st July 2013 (dated 9th July)

2. That the case has been sent to my local court (dated 10th July).

 

So, I phoned the ccmcc service and asked when their form was received, they said the 3rd July.

 

I asked if this meant I could now apply to have the claim struck out as they hadnt filed in time ?

The person on the end of the phone said I can, and it would cost me £45 and to use form N244.

 

so... questions:

 

1. If I apply to do this is it likely the court will strike out the claim as they didnt comply with the courts instructions or do they have discretion to say, well it was only 3 days late, claim stays in ?

 

2. If we do this will I get my £45 back from the court ?

 

3. Can they bring a new claim, exactly the same as the old one and start the hwol eprocess over again ?

 

3a) if so I presume they will have to pay more fees ?

 

4. If I do submit n244, should it be sent to ccmcc or to the local court that the file has now been passed to, or should I simply wait for trial date and then ask for it to be struck out there ? (though I'd sooner avoid court, even though only small claims).

 

May I ask any people with knowledge for their views.

 

Thanks again

[steampowered]

1. Did the letter have a deadline within which they must pay the fee or the claim will be struck out? I can't imagine you would have much success with an N244 over a 3-day delay. Probably better to let the beast lie. Longer it goes the more likely a strike-out is to be successful.

2. No you wouldn't get the £45 back from the court.

3. Yes they could restart the claim, though you could then apply to have it struck out as an abuse of process.

3a. Yes they would have to pay more fees for this.

4. Sent to the court that the claim has been transferred to, with a copy to the Claimant.

 

As above, my view is that you should sit tight and wait.

 

Best rgds,

SP

[AA123]

Yes, they had to file by 1st and pay fee, the next letter said they had till 19th or it would be struck out, so I guess they have complied with that bit.

 

You know what you're doing more than me, so I guess I will do as you say - sit tight.

 

thanks for the info, much appreciated.

[AA123]

Have now received allocation of 3 hour slot at small claims court on Xth October, exchange docs at least 28 days before etc, witness statements etc, the claimants fee is £350 for small claims hearing, wow that's a lot on top of what they have paid already, if I lose will I have to pay that ?

 

These witness statements, can they just be the same as the defence documents submitted above, is there any value in adding any more ?

 

I will obviously include all bits of paperwork etc relevant to the defence for exchanging.

The claimant has asked for strict proof that my G/F's tenant moved out on a certain date, is an email from the former tenenat to her confirming the date she moved out "strict proof" ?

 

Thanks.

[steampowered]

350 is the hearing fee payable where the amount claimed is more than 3000. If you lose you will be liable for the court fees and for fixed costs (see the table at 45.2) http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part45-fixed-costs#rule45.2. You shouldn't be liable for any costs other than that, although the court has power to order you to pay the other side's legal costs if it thinks you have behaved unreasonably. This power is rarely exercised in small claims track ... typically exercised where one party shows total disrespect to the court process or has lied to the court.

 

What documents have you been ordered to disclose? If you were only ordered to disclose the documents you intend to rely on, then you only need to disclose anything you intend to rely on. However you should take a wide view of this. You do not need to use everything you disclose ... but you do need to disclose everything you use. If it is conceivable that you might want to show it to the judge, you need to disclose it else you might not be allowed to use it.

 

The Claimant's request for "strict proof" has no real legal meaning. In civil cases disputes of fact are decided on a balance of probabilities. You will produce evidence in support of your Defence, the Claimant may contest that evidence and the judge will decide. An email from the former tenant might be enough to convince the judge, but not watertight so ideally you would want some additional supporting evidence - perhaps bank statements showing when you stopped receiving rent or a refund of the deposit.

 

The Defence outlines your case in brief and witness statements tell the story in detail. There is no point simply repeating your Defence, but anything you want to tell the judge about the facts of the case should be in the witness statement. Very often judges have made up their mind by the time they finish reading the POC, Defence and witness statements.

[AA123]

350 is the hearing fee payable where the amount claimed is more than 3000.

 

Thanks for all the information, very helpful. Just a quick one, the claim is only over £3000 because they had assumed the tenant stayed a full year in the renewal and their method of interest calculation was incorrect, which they have admitted in their statement. Either of those taken into account makes the claim less than £3000. May I ask where I can find what the hearing fee would be then ? or where I can find this info.

 

In the unfortunate event that I/we were to lose could we request that the court hearing fee would have been less had they filed their claim correctly a)without assumptions (renewal period) and b) without their questionable interest claims. Would this £3k+ figure have affected any other costs they have filed e.g the application etc ?

 

Thanks.

[steampowered]

The amount claimed on the POC is still more than 3000 so the hearing fee will still be 350 ... the court does not refund this even if the claimant is only awarded some of what was claimed. Details of court fees are set out on leaflet number EX50 available on HMCS website. It probably won't make a huge difference.

 

If they win, but do not win everything claimed in the POC, I guess you could ask the court to award only some of the costs. A similar approach is commonly used in multi-track and fast-track cases, where the losing side is generally liable for the other side's legal costs, and the claimant might end up with the claimant being awarded 50% of his costs if he wins on one claim and loses on the other. I'm not sure how much sympathy you would get when trying to reduce your liability for court costs in small claims track but you could always ask.

[AA123]

I'm working on the witness statements now, should they just say what happened and that it with no legal argument as to why I am contesting the claim etc etc, are they literally just "the story" and the defence has already taken care of the argument ?

[AA123]

Right, here are draft 1 of mine & GF witness statements.

 

In them we have not really laid out a defense as such as I;m guessing the filed defense did that already.

 

any feedback greatly appreciated.

 

Thanks

 

[ATTACH]45770[/ATTACH]

[ATTACH]45769[/ATTACH]

 

previosuly filed defences

http://www.consumeractiongroup.co.uk/forum/attachment.php?attachmentid=44247&d=1370018221

[ATTACH]45772[/ATTACH]

 

all names changed (sorry if they dont flow continuosly in the fake names between defence & statements, but I think they make sense)

Edited August 12, 2013 by AA123

[steampowered]

Hi, apart from a formatting problem at the bottom of BF's statement I think they are fine.

 

Do check the accuracy of what you are saying regarding strike-out. It probably doesn't matter anymore, but if the claim was automatically struck out on that date it should be dead. Perhaps call the court to clarify if unsure.

[citizenB]

This thread is now in "General Legal Issues"

 

It is purely an administrative move.

[AA123]

We filed our witness statements and exhibits.

 

The claimant did too, however they filed them to late, can I requets that these all be ignored as they are too late or does the jidge have discretion with this ?

 

If so should I requets they are struck out at the hearing or in advance ?

 

Thanks

[AndyOrch]

Depends on what "too late " is AA couple of days ..weeks?

 

Regards

 

Andy

[AA123]

Depends on what "too late " is AA couple of days ..weeks?

 

Regards

 

Andy

 

3 days late, their filing of the directions questionnaire was 4 days late also under the previous directions, they seem to have no regard for the courts orders.

 

Also out of interest and since filing our defences their late witness statement documents now state they are applying for a reduced amount in their claim, now dropped from circa £3500 to £1900.

 

One of the considerations for disputing the claim was due to it not being correct. Can they just modify the claim like this etc ?

 

if for example you look at Professional Information Technology Consultants (PITC) vs Jones that went to appeal.

 

The claimant modifying the claim/case at a late stage meant that the costs were not awarded entirely to the losing party, Is this something I could pursue if the claim is awarded against me, ie they hav changed their claim vs the one that was filed and I should not be liable for all costs as I may have considered settlement pre court in the event their claim had been correct ? or can the claimant simply not just change the claim as they have following items in my defence ?

[AA123]

interestingly enough with regards to their witness statement/response to my GF who didn't sign any terms but I put her name on a piece of paperwork at one point they have said;

 

"the Agreement that was then duly signed on the X of Y 20cc by the first defendant (me) and clearly state in the name section on page 1 "me and GF". Upon signing the agreement (last page), the firstdefendant (me) upon stating Miss GF as a party to the agreement has held himself out as acting as agent on her behalf".

 

 

elsewhere they refer to her as a "contracting party to the agreement".

 

Is there any legal merit in this argument whatsoever ? I don't think there can be ?

 

How can someone be held liable for someone else's alleged shortcomings ?

Edited September 12, 2013 by AA123

[AA123]

We had the hearing and the Judge has deferred judgement to next week. Those other side submitted a vast list of expenses for various things from hourly rates for completing witness statement speaking and drafting things fr counsel etc all totalling up to £1200 ish.

 

The judgement hearing is next week and obviously if I lose we need to talk about costs.

 

The fact they modified claim in last statement for an amount some 60% less than original claim takes the claim I to a band where all fees would have been lower

Had the claim been for this around initially I may have settled (I was defending original rediculous claim)

Their claim for inflated interest also took the claim over and into a higher admin fee band.

 

So questions, can all of the above be taken into account when discussing costs and also from everything I had read I thought small claims costs were just limited to a max for a day off work and reasonable expert attendance and travel etc, this was on one website.

 

Costs

 

If you are successful, you can ask the Judge to award you ‘costs’ to reimburse you for any financial loss you have suffered to attend the hearing. However, if you are unsuccessful the defendant can ask for his/her costs as well!

 

These ‘costs’ include:

 

• any court fees paid;

• an amount of not more than £50 per day each for the party, and any witnesses for loss of earnings due to attending the court hearing

• costs for use of an expert up to a maximum of £200;

• the party’s own and any witnesses’ expenses in attending court, for example, fares and accommodation;

• any costs ordered by the Judge if one of the parties behaved in an unreasonable way.

 

Costs will not be awarded by the court unless the successful party asks for them at the time the judgment is made in the hearing. If there has not been a hearing, the successful party will need to write to the court asking for costs. You will be expected to prove your costs so it is wise the keep any travel tickets, hotel invoices in case the Judge wants to see them.

However if you have had the opportunity to settle this out of court, for example through an ombudsman or negotiations, and you didn’t, the court may not award you costs, even if you are successful.

 

So as the defendant can I claim for the time in preparing statements etc or only for my 2 days off work to attend hearing and traveling expenses, in the event I win ?

[AndyOrch]

Yes you can but this is SCT so costs are minimal see CPR 45 and CPR 27.

 

Regards

 

Andy