I need help to Serve a writ to recover a loan

[AndyOrch]

Can you advise me regarding this situation. Is it not a requirement by law that the Defendant provide documentation as required ...Only when directed by the court/DJ Directions...not by the Claimant/Defendant

 

 

a. when requested by the Claimant when he is put to proof? No see above

b. for form N181 Direction Questionnaire...No the DQ has nothing to do with disclosure...its allocation and directions

c. full documents for Disclosure? Disclosure will happen at the appropriate stage IE after allocation and after witness statement exchange and then Standard Disclosure Usually 14 days before the actual trial)

 

is it legal for the Defendant to blatantly ignore each and every one of these requirements ? Yes if you have made them and not the DJ...hence the CMC

 

as i have provided full documentation relating to both Direction Questionnaire and Disclosure...what more am I required to provide? Again the DQ has nothing to do with disclosure...disclosure happens at at later stage

 

I shall be most grateful if you can clarify these issues for me.

 

Regards

 

Andy

[burmafriday]

Dear Andy

thank you very much for yr message. it was very helpful.

I went thru the case and the chronology of events. let me explain to you again now that i have my " good brain "

 

1. The Defendant did not submit his Direction questionnaire in Nov 2014 and his defense was struck out and i got judgment by default.

2. he appealed against this and successfully managed to have this judgment set aside

By the way.... when he submitted his appeal, he did this without informing me and he did not send me any copies.

by the time i received notice of these events it became too late for me to submit my objections.

3. in any event, he was ordered to submit is DQ again for a date in march 2015.

4. then the court lost the file and i had to send them copies

5. In the meantime the Defendant he did not submit his DQ, nor send me copies

6. we were then ordered to submit Docs for Disclosure for may

7. i submitted mine, he did not submit anything.

8. we were to hv a hearing in June subsequent to this deadline but i was unable to attend as i had a break down

9. hearing was vacated

10 now a CMC is now re-scheduled.

 

this is where we are at.

 

my point is that there is a record of the Defendants NOT following the court's orders or directions

where they failed to furnish DQ and even Disclosure documents

 

At the CMC i hv to to provide the court with the following

1. draft directions

2. a chronology

3. a statement of the issues

4. a case summary.

 

in Case Summary, can i request that the Defense be struck out because the Defendants failed to submit the docs

mentioned above ? Andy, he failed to submit these docs on three occasions

 

or do i just summarize the case "factually"

 

Also, i think i hv sufficient evidence to try and push for Summary judgment at CMC but in view of the lack of time, should

i wait till later.?

 

thank you very much Andy for helping me

All the best

BF

 

[AndyOrch]

Hi Burma

 

The core argument would be the lack of compliance by the defendant to comply with court directions....The DQ being the major and the disclosure secondly.

 

Ideally you should have struck at the time of none compliance...with the DQ you could have made application to strike out any defence and request judgment and asked the court to impose sanctions as it deemed fit.

 

With regards to disclosure...as they have failed to disclose any evidence then they are not in a position to rely on any evidence apart from verbal account.

 

Grounds to support you application.....

 

" that the court strike out the claimants’ defence CPR r.3.5(1)(a) and CPR r.1.1(2)(f) and he relies upon the authority of the Court of Appeal in Mitchell MP v News Group Newspapers Ltd [2013] EWCA Civ 1537 on this point of law where the Appeal Court sent out a clear message to all litigants, represented or not, confirming that a party’s failure to comply with a rule, practice direction or order is no longer tolerated and the party in default of the same will face severe sanctions."

 

Regards

 

Andy

[Ganymede]

Mitchell is slightly out of date now since the judgement in Denton, but only that obtaining relief from sanctions is much easier now.

[burmafriday]

Dear Andy

wow - thank you so much – You are a star!! You really know your stuff. This is just the help I need.

 

I did actually struck at the time when the Defendant failed to submit DQ and then obtained Judgment in Nov 2014 which the Defendant successfully applied to have set aside….. and this is where we are now as a result.

 

I will work on the text and then get back to you in a few days.

 

In the meantime, regarding time scale … I note that I can file and send to the other party or parties

 

• draft directions

• a chronology

• a statement of the issues

• a case summary.

 

At least three clear days before…

 

So where shall I insert the para you quoted … in my case summary? Or do I need to submit a separate application specifically for this using the N244 form ?

 

Thank you so much

Burmafriday

[burmafriday]

Dear Ganymede

 

thank you for your post.

 

can you pls explain a little more.

i do not understand "...obtaining relief from sanctions is much easier now..."

 

thank you

best/BF

[Ganymede]

The other side may still be able to get away with breaching the Court direction/order etc by relying on the more recent judgment in Denton v TH White (2014).

[burmafriday]

Dear Ganymede

 

Thank you so much or your fast reply. I checked that case you mentioned and found that the party who were in “default” always made amends relatively quickly and hence able to obtain relief from sanctions.

 

In my case the Defendant failed to submit DQ twice. (After the first time, judgment was entered against him.)The Defendant then failed to submit disclosure documents.

 

I wrote to the Defendant twice requesting the disclosure documents subsequent to the deadline but did not hear from him.

 

The case then got totally messed up as the court lost the files. I was then unable to attend the next hearing as I had a break down.

 

My point is I wrote to the Defendant telling him that he had not submitted the disclosure documents and I notified the court accordingly. To date, the Defendant still has not furnished these docs. The fact that I wrote to the defendant twice

a. implied that i am giving him some time extension to serve the disclosure documents

b. should at least prompt the defendant into submitting these Disclosure Docs. at some point thereafter.

 

Therefore, the ruling in the Mitchell case should apply. Do you not think?

Or is there some other way for me to deal with this issue?

 

Thank you again for your help. I am really very grateful. As you can see, I was quite messed up and not sure how to deal with this matter... but it is getting clearer,

 

All the best

 

Dear Ganymede

Further to my earlier post, having done some more research, the key issue seems to be that relief from sanction is granted where a deadline is narrowly missed but otherwise fully complied with.

This is not so in my case.

Look forward to your comments

Best/BF

[AndyOrch]

Just push for none compliance Burma...irrespective of case law...parties must comply irrespective.

[burmafriday]

Hi Andy

Thank you for yr message Andy.

yes thanks - i am preparing my dox. will send you a draft copies.

if you dont mind, pls have a quick read and comment

 

should i make the application using N244?

thanks very much

BF

[AndyOrch]

Ideally the application should have been made at the time of none compliance....It can be raised at the CMC and hopefully the court will direct...saving you the need for further expense.

[burmafriday]

Hi Andy

thank you for your post. i am preparing the paperwork.

I see on one of the sites that i must serve my docs. 3 days before the hearing to all parties. Is this correct?

I thought it was 14 days. would you know

I you do not mind - may i forward you copies of my docs in PM for your comments.

would that be OK?

thank you very much Andy

warm regards/BF

[AndyOrch]

This is a case management hearing Burma...not a trial or summary judgment hearing...so no need to submit anything ...just present it on the day.

Would prefer if you post everything to your thread....we do not advise by PM.

 

Andy

[burmafriday]

Hi Andy

thanks for yr message

i am nearly done with the dox.

i should hv them completed today

will get back to you

 

Thanks Andy

BF

[burmafriday]

Hi Andy

 

i have finally completed the docs i am to submit to court for CMC .. pls seebelow:

 

At least 3 clear days before the case management conference the Claimant must file and send to the other party or parties preferably agreed and by email:

1. draft directions

2. a chronology

3. a statement of the issues

4. a case summary.

 

i prepared the above docs and in the case summary I briefly outlined details of the Defendants Non compliance. i also inserted the para in your post #194 ... see below:

 

Clearly there is a serious lack of compliance by the Defendant. The Defendant had not complied with the Court’s directions; not once, but repeatedly. As the Defendant had failed to make full disclosure the Defendant should not be in a position to submit any evidence or witness statements apart from verbal account. As the Defendant failed to submit documents for disclosure by 01 May 2014, the Defendants’ witness statement of 28 November 2014 should not be accepted but struck out.

 

The Claimant requests the court to strike out the Defendants’ defence CPR r.3.5(1)(a) and CPR r.1.1.(2)(f) and the Claimant relies on the authority of the Court of Appeal in Mitchell MP c News Group Newspapers Ltd [2013] EWCA civ 1537 on this point of law where the Appeal Court sent out a clear message to all litigants, represented or not, confirming that a party’s failure to comply with a rule, practice direction or order is no longer tolerated and the party in default of the same will face severe sanctions.

 

As on 20 November 2013, when Judgment was awarded to the Claimant due to the non compliance of the Defendant, judgment should again be awarded to the Claimant for the same reason. On this occasion, it should be without leave to appeal due to the repetitive non compliance of the Defendant. Judgment should be for value xxxx plus interest at 8% pa.

 

[uNQUOTE]

 

Do I need to submit a N244 application for the same?

 

what should i say in Draft Directions?

thank you very much

BF

[AndyOrch]

Directions will be set the by the District Judge once the CMC has concluded...you only need to verbally get the above across and insist that the Court direct accordingly...but he may even strike it out whether the defendant attends or not.

 

No need to submit an application at this stage wait for the courts directions.

 

Regards

 

Andy

[burmafriday]

Dear Andy

thank you so much.

I checked out on CMC and as claimant I am required to

submit those docs. This is why.

Never the less i shall do as you advise and see what happens

Thank you

BF

[AndyOrch]

Checked out ? Unless you have received a General Order directing you to submit documents...normally CMCs are very informal.

 

Regards

 

Andy

[Ganymede]

Checked out ? Unless you have received a General Order directing you to submit documents...normally CMCs are very informal.

 

Regards

 

Andy

 

At least 3 clear days before the case management conference the Claimant must file and send to the other party or parties preferably agreed and by email:

1. draft directions

2. a chronology

3. a statement of the issues

4. a case summary.

 

This is the Court Order burmafriday has to comply with as the Claimant.

 

It wouldn't look great to the Judge if burma was asking for the sanctions to be imposed on the Defendant for failing to comply with Orders/Directions and then do the exact same thing.

[AndyOrch]

Wasn't aware of the court order.....strange they are asking the claimant to submit directions on a SCT and CMC...but yes you must comply with the court order Burma by the dates stated...3 days clear.

 

Regards

 

Andy

[burmafriday]

hi Ganymede, Andy

thank you for your replies.

 

Regarding Draft Directions .. would the following be correct and suffice?

 

To the Defendant

 

Upon having read the papers in the case and upon the noncompliance of the Defendant in following court directions

a. By not filing a Directions Questionnaires

b. By not filing documents for full disclosure

 

IT IS ORDERED THAT:

 

(i) The Defendant’s defence is struck out.

 

You must pay the Claimant the total of £ xxxx

For debt (and interest to date of Judgment)

Costs to be agreed

 

++

 

I really would appreciate your reply ASAP so i can get the copies printed and deliver to court Thursday morning and get some sleep.

 

thank you so much again for all your help

Best/BF

 

 

 

Hi Ganymede, Andy

Ah i forgot to ask ..... do i need to submit a N244 application to apply for defence to be stuck out?

thank you again

BF

 

[AndyOrch]

Quote the relevant CPR Burma in your directions IE CPR r.3.5(1)(a) and CPR r.1.1.(2)(f).....there should be no need to submit an application......the court has requested directions.

 

Andy

[burmafriday]

Hi Andy

thank you so much for a really, super fast reply..

 

so something like this: ?

 

To the Defendant

 

Upon having read the papers in the case and upon the noncompliance of the Defendant in following court directions

 

a. By not filing a Directions Questionnaires

b. By not filing documents for full disclosure

 

Pursuant to CPR r.3.5(1)(a) and CPR r.1.1.(2)(f)

 

IT IS ORDERED THAT:

(i) The Defendant’s defence is struck out.

 

You must pay the Claimant the total of £ XXXX

For debt (and interest to date of Judgment)

Costs to be agreed

 

+++

Thank you/BF

 

[AndyOrch]

Just one amendment..refresh your screen....have they previously been told to submit a witness statement also?

[burmafriday]

Hi Andy

thank you - got it.

You mean the Defendants? no they have not been told to submit a witness statement.

thanks again Andy/BF

 

Dear Andy and Ganymede

thank you very much for your help

will advise outcome after CMC

I Really appreciate all your help

all the best/BF

Dear Andy and Ganymede

 

may be you can advise quickly - i hv been searching through the Civil procedure rules regarding failure to file disclosure documents by the Defendants and find it to be very "weak" in that all it states is as follows:

 

Consequence of failure to disclose documents or permit inspection

31.21 A party may not rely on any document which he fails to disclose or in respect of which he fails to permit inspection unless the court gives permission.

 

so it would seem to me that he can choose not to file disclosure documents.

 

CMC is at noon - and i am totally prepared as per our previous discussions.

 

thank you

BF