Judge Ordered Claimant To Supply Info - They Haven't

[BelstarBomb]

Hi All,

 

Just a quick one asking for your help so I can see the wood for the trees.

 

Am fighting a long standing case where the claimant has not responded to numerous responses for a a full SAR and statement of account as I need it for my defence.

 

A court date was set for last month and I asked the court to push it back becuase I was still waiting for missing information.

 

He denied my request saying he couldn't make the decision without knowing if I had a valid defence.

 

I subsequently wrote back to him detailing my defence and the CCA law that backed me up and listed why the missing information was crucial to my defence.

 

He wrote back making an order for them to supply the missing infrmation by yesterday and for me to submit my statement of truth 7 days after that.

 

I gave it until today to see what turns up and nothing has. Instead I received an email from their solicitors asking me to settle 'Without Prejudice save as to costs' with a lesser payment of what they say I owe.

 

They have sent another email today asking if I was willing to accept their offer or not.

 

The settle amount is still twice the amount I would be happy at paying and want to get a better understanding of what the implications are if I take the advice of the clerk at the court and write to the judge telling him I still can't complete my defence as the claimant has not complied with his order.

 

What is the judge likely to do as they have not complied with his order?

 

Knowing that their case may not be as cut and dried as they first thought, how much/long do I try and get their settlement offer down to what I am happy paying?

 

Cheers,

 

Bel

[honeybee13]

Hello there.

 

I imagine the legal forum would be the best place for your query, I'll move your thread there.

 

My best, HB

[BRIGADIER2JCS]

Inform the court, of their failure to comply with the judges order and make the court aware of their 'offer' which personally I would reject.

[citizenB]

As I understand it, the courts are becoming stricter regarding non compliance of their orders.

 

So, yes write to the court, and let the Judge know that the claimant is still either unable or unwilling to release information they were ordered to provide in the Judge's order dated XYZ.

[BazzaS]

Inform the court, of their failure to comply with the judges order and make the court aware of their 'offer' which personally I would reject.

 

Can you advise the court of the offer, given it is an offer "without prejudice save as to costs"?

 

Would it be better to advise the court only of their non-compliance with the DJ's order, request the court rule on a dismissal, and only after judgement bring the issue of costs?

[BRIGADIER2JCS]

Yes certainly, this 'offer' is being made to subvert the judges order and an attempt to secure a higher settlement.

Either way one would look for dismissal as the offer is unacceptable.

[citizenB]

how do u start a new thread?

 

http://www.consumeractiongroup.co.uk/forum/index.php

 

Go the forum you want - the link above is the index. Once you have the correct forum, there is a "Post new thread" button which you then click on.

[BelstarBomb]

Wow guys, I thought as much but thought the sun was going to my head and I wasn't thinking right!

 

I think I've got the offer because they have realised that

 

1. I'm willing to stand up in court to fight my court

2. Legally, I have the law on my side

3. It would appear that the judge agrees with me

 

I called the court today and said that I would give it one more day and then write to the judge and she said that was probably best.

 

In that letter, do I state as the the claimant has not supplied the information ordered by him on date X, Y, Z I am unable to adequately fulfill and complete my statement of truth and I therefore request that the case be dismissed?

 

I'm thinking that even with an offer to settle, they should still supply the information the court has ordered?

 

Thanks again guys,

 

Bel

[BelstarBomb]

Do I also still fulfill my part of the order but stating that it is incomplete due the claimant not fulfilling their part??

[citizenB]

Wow guys, I thought as much but thought the sun was going to my head and I wasn't thinking right!

 

I think I've got the offer because they have realised that

 

1. I'm willing to stand up in court to fight my court

2. Legally, I have the law on my side

3. It would appear that the judge agrees with me

 

I called the court today and said that I would give it one more day and then write to the judge and she said that was probably best.

 

In that letter, do I state as the the claimant has not supplied the information ordered by him on date X, Y, Z I am unable to adequately fulfill and complete my statement of truth and I therefore request that the case be dismissed?

 

I'm thinking that even with an offer to settle, they should still supply the information the court has ordered?

 

Thanks again guys,

 

Bel

 

Yes pretty much..

 

As requested by Judge XYZ's order dated DATE.

 

You are advising the court that Claimant has not complied with the Judges order to provide DOCUMENTS. You are therefore unable to comply with (whatever the judge ordered you to do )

[BelstarBomb]

Postman has been and gone and still no SAR - the third day after the Judge ordered the information to be with me.

 

Off to the court to hand deliver the letter myself

 

Bel

[AndyOrch]

If the letter has not already gone Belstar it may be prudent to add the relevant CPR PDs which you are making the request....IE CPR 3 PD 3/PD 4.I personally would have put it on an application notice N244 and requested costs within the applicatiopn.

 

Regards

 

Andy

[BelstarBomb]

Hi Andy,

 

No it hasn't gone yet - am feeding the sprogs!

 

What's a CPR PD?

 

And why would you suggest an N244?

 

Cheers,

 

Bel

[BelstarBomb]

Ok, just Googled it.

 

There is a lot to read and take in, is there one bit that you can direct me to Andy that would be relevant in this situation as well as wording for the letter?

 

Thanks Andy,

 

Michelle

[AndyOrch]

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03

 

Then look at CPR 3.3 and CPR 3.4

 

PDs are practice directions .3 and .4 ........letters to the court as advised by the staff are pointless....courts only action request by way of their own forms.(and there relevant fees).

You are making a legal request now to impose sanction on failure to comply with a directive so therefore you should use the CPR as your legal reference.

 

Regards

 

Andy

[BelstarBomb]

Thanks Andy,

 

I've also just looked at an N244 form which I can download so in the information box in support of my application, I basically state that the claimant has not carried out the judges order, refer back to the necessary section in .3 and .4 and that's it?

 

Cheers,

 

bel

[AndyOrch]

Yes that's it Bel but phrase it pursuant to CPR 3 PD.s (3.3/3.4)

[BelstarBomb]

Thanks Andy,

 

And what costs am I asking for? The £80 I have to pay to lodge the N244??

 

The information still didn't turn up yesterday but assuming they turn up tomorrow, am I still within my rights to ask for it to be dismissed?

 

Best wishes,

 

Bel

[AndyOrch]

You really should attach a draft order to the application also Bel this is were you request costs in this application.

 

Regards

 

Andy

[BelstarBomb]

Hi Andy,

 

Sorry for being so incredibly thick!

 

A draft order should say what exactly as I though that information should be on the N244??

 

On the other hand, have just opened a letter which arrived yesterday to find that John Lewis have gone back over an old PPI claim that they rejected in 2010 and have offered me £2700 as they have now upheld my original complaint after assessing it against their new measures.

 

Result!

 

Thanks for your patience with me Andy

 

Bel

[AndyOrch]

The N244 should state briefly what you request and the reason why.

 

It will state further down have you made/included a Draft Order..this is how applications are made. Tick yes and attach.

 

Here is an example :-

 

 

Edit to suit

 

 

#### START OF ORDER ####

 

In the .........countycourt

Claim No. ...

 

Before

 

District Judge ………

 

 

Dated ……… 20…

 

 

Claimant A

 

and

 

Defendant B

 

 

 

Draft/ORDER

 

The Claimant has failed xxxxxxxxxxxxxxxxxxxxxxxxxxxxx

 

 

And Further to the DJ xxxxxxxxx General Order and Directions dated xx xxxxx 2013

 

IT IS ORDERED THAT:

 

1. The Defendant be granted summary judgment on the whole of the claim and the claim by the struck out.

2. The Claimant do pay to the Defendant forthwith the sum of £[ ] in respect ofthe claim.

3. The Claimant do pay the Defendant costs of the claim, in the sum of £[ ]within 14 days.

 

#### END OF ORDER ####

 

Fill in the gaps where ..... or [ ] is present.

 

 

The following are assumed:

 

1.) That in the hearing you will represent yourself;

2.) That the other side will be represented by counsel;

 

amend the order to suit.

[I've got no money]

Some courts are reluctant to strike out for breach of only one order. It might be an idea that you apply for an unless order (an order that unless a party does something their case is struck out).

 

So I'd suggest the draft order says something like

 

"The Claimant comply with the Order of [date of original order] in that the claimant shall within 7 days of the date of this order provide the Defendant with

in default of which the claim shall be struck out and in any event the claimant shall pay within 14 days the claimants costs of and occasioned by this application [application fee plus your time at LIP rates)"

 

I'm not clear whether you've got a counterclaim or not. I think it might help if you gave us a bit more info - what stage in the proceedings is this? I presume that you've had a claim and that you haven't filed a defence yet because you don't have enough info - but I could be wrong?

 

Can you post a copy of the original order - suitably redacted.

[AndyOrch]

It does not require an "unless " ......since the recent changes to the CPR of April 2013 the court has now clamped down on either party not complying with directions and sanctions are now imposed without further warning.

[BelstarBomb]

Ok,

 

Have come back from holiday to find the statement from the claimant as well saying that unless I provide more information that they failed the order, he won't list my claim for a hearing.

 

On closer inspection, the solicitors had dated the letter the day before the court had ordered them to supply me with the information, but the statement was not sent from the finance company until 4.55pm of the day I should have received it. It has their date and time stamp on the fax.

 

The solicitors had stated that they had served the documents on 29th and that date of service is 31st. They obviously couldn't have served on 29th as the fax from their client clearly states that it wasn't sent until the end of the following day - to them and not me!

 

I will be writing to the court pointing this out but should I add anything else in there as it's obvious that the solicitor has lied??

 

Bel

[BazzaS]

Point out the discrepancy, but as "they appear to be mistaken, since ...." Rather than "they lied".

 

Have they now complied with the court's order (albeit at the 11th hour)?