Customer issued court proceedings against us (small family run garage)

[AndyOrch]

It really should have Claimant v Defendant (and names in the header)

 

Andy

[Mike_hawk]

Looks good to me Emz, always best in your own words......... remember to number the pages

 

Attach cover sheet to each, for the claimant copy type up a letter head with address, date and claim details followed by method of service:

 

Case No: xxxxxxxxxxxxxxx Claimant v Defendant

 

Service by 1st Class post

 

Dear..........

 

By way of service please find the enclosed witness statement of xx pages

 

 

For the court........ same again but with

 

Dear.........

 

Please file the enclosed witness statement of xx pages in the above case.

[andydd]

* On a related note, just been reading the 'Plebgate' Andrew Mitchel v News Of The World case > http://www.bailii.org/ew/cases/EWCA/Civ/2013/1537.html which was mentioned earlier in reference to cpr 3.9 and sanctions, etc. In his case failure to serve costs budgets in time looks like its cost Mr Mitchell half a million, what a pleb

 

No need for OP to worry here, its all small claims and therefore 'no costs'.

[Emz0305]

Andy what do you mean in the header? I've got claimant and defendant names on page one of witness statement and I've also now numbered the pages 1-4. Only problem is I've left work now and didn't manage to print a cover note and manweb are switching off the power 2moz ALL day to do cable maintenance so won't have access to my computer and printer. Could I just do an old fashioned hand written cover note??

[AndyOrch]

So you have ....proceed:-)

[Emz0305]

[Emz0305]

Oh forgot to ask, what happens if his POC Were to turn up 2moz? Just out of curiosity.

[Mike_hawk]

Can't imagine it would go down too well, service now would be in contradiction of his application...

[Emz0305]

That's what I thought. Just hope we get a judge who's sick of people not complying with the CPR and likes to make examples of people, now that would be good

[Mike_hawk]

Guess you'll find out next week!

 

To be frank, I can't think of a procedure (if one even exists) for granting him relief.

[andydd]

Andy what do you mean in the header? I've got claimant and defendant names on page one of witness statement and I've also now numbered the pages 1-4. Only problem is I've left work now and didn't manage to print a cover note and manweb are switching off the power 2moz ALL day to do cable maintenance so won't have access to my computer and printer. Could I just do an old fashioned hand written cover note??

 

On the small claims track, Judges are normally pretty forgiving, and they no doubt have to deal with all sorts of scribbled badly prepared rubbish.

 

CPR 32 and more impoirtantly PD 32 deal with layouts of evidence, S17 deals with Witness Statements here > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part32/pd_part32#17.1

[Emz0305]

Just read the recommended layout Andy and don't think this one is exact, but I did follow using the example that someone posted from the justice website so should be ok?

 

 

I'm just typing a covering note now, hopefully electric wont go off in the process.

 

 

So I'm definitely good to go with this W/S you all think?

[Emz0305]

Off to the post office

[andydd]

Just read the recommended layout Andy and don't think this one is exact, but I did follow using the example that someone posted from the justice website so should be ok?

 

 

I'm just typing a covering note now, hopefully electric wont go off in the process.

 

 

So I'm definitely good to go with this W/S you all think?

 

Yep..its all good.... As others have said I can't see any way the other sides application to re-instate Judgement will be successful, it appears to be wrong on many levels.

 

Dont worry about the exact layout. The CPR/PD in this case should be taken as a rough guide.

 

I'd guess the majority of LiP prepared ones dont come close, the stuff sent to me by my freeholders solicitor is always different to my paperwork, Ive never actually read the CPR/PD relating to layouts untill just now and I'm making some small changes to my WS in my case (Ive won the first part, the other sides counterclaim was withdrawn and now preparing for my main damages case aginst my freeholder).

[Mike_hawk]

Hi Emz

 

Looked all good to go, meant to say the reason for including the back story in your w/s was to emphasise the claimants poor conduct.

 

If the judge does not dispose of the case next week you'll possibly come away with the same (ish) directions as those that followed the set aside. Assuming that happens you should ask the judge to make it clear within any notice that further non compliance would be sanctioned by dismissal/ strike out & summary award of costs in the case.

 

Still without broadband so I'm relying on my mobile signal again at the mo and its not the greatest speed around here!

[andydd]

Its worth mentioning costs, now this is already on small track so no costs but you/your father could claim upto £90 for time off work and travel. See > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.14 - 27.14 (d) ands (e) and > http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27/pd_part27#7.1 - 7.3 (1).

 

These would just be the costs for attending the set aside hearing not for the main one.

 

If you want to be more professional and maybe scare the other side you could use this form > http://www.justice.gov.uk/courts/procedure-rules/civil/contents/form_section_images/pre-action_protocol/housing_disrepair_pdf_eps/prot_house_anx_f.pdf to list your costs.

 

Youd basically put Rate = £18.25 an hour (The rate a litigant in person can claim) and list the work done, 2 hours on letters, 2 hours on research, etc

 

In theory this wont apply coz its on small track but it does in certain circumstances (as Ive just found out to my benefit..got £175 ) but it may be worth using, it needs to be in court and other side 24 hours before hearing.

[Emz0305]

Ok might consider that as well Andy.

 

If the judge doesn't strike out the case, and it reverts back to the set aside, then surely that means they've still granted claimant even more relief to serve POC. Hardly any point in having rules.

[andydd]

Well..The rules are there to be followed, BUT they can be overidden by a court 'relief of sanctions' BUT the new intereptation is that they shouldnt be except for exceptional circumstances, you could remind the judge of this and point them to the Mitchell v News Group case I mentioned above, a small error there looks like its cost him half a million !

 

Its worth remembering that continual applying to courts for set asides, etc isnt without cost, there is a fee to pay and if its not on small track or is pre-allocation then normal court costs rules apply and the losing side would have to pay the other sides costs of that hearing which at the very least would prob be about 2hours x solicitors costs of £200 an hour = £400 +

[Mike_hawk]

Emz

 

Following may assist as a template:

 

 

13th February 2014

 

Dear xxxx

 

Re: Case no xxxxxxx Mr xxxxxxxxxxx v xxxxxxxxxxxxx Ltd

 

By way of service please find below summary of costs in the matter of xxxxxxxx hearing at 20th February 2014.

 

 

1. 1 day loss of earnings at Litigant in Person rate of £90.00 [Practice direction 27, para 7.3 (1)

2. Travel 20.4 miles round trip from XXXX XXX @ £00.45 per mile - £9.18

3. Parking £5.00

 

Total at £104.18

 

 

I trust the above is in order.

 

Regards

[Emz0305]

Mike, defendant isn't required to attend this hearing is he? So wouldn't really be able to claim costs for attendance would they? My dad won't be able to make the hearing of the application anyway due to his business and having work booked in.

[Mike_hawk]

He really should attend... his evidence (w/s) may be disregarded if he isnt there to answer any questions the judge may have.

 

In what capacity is he being sued? As an individual or director or is the business (ltd co) named as defendant?

[Emz0305]

As an individual but as the proprietor of his business as he's a sole trader

[andydd]

He doesnt have to attend no, it can be beneficial should certain questions arise, I would of thought that for the claimant getting judgement re-instated is very unlikely and cant really think of any reason why this should be done or any further questions the judge may have.

 

As for getting the whole claim thrown out, then yes, it would help if the defendant did attend as there may well be questions to answer but this is a secondary isue, the defendant has to balance the cost of a day off work and whether its worth it.

 

I had similar issue, claim against me was thrown out and other side asked for set aside, he was solicitor and his defence was simply..he was busy,..so I made my points in Witness Statement but didnt think it was worth day off work to attend in this instance.

[Mike_hawk]

We all have different experiences on the SCT.. What I would say is that if this case has a profound impact on your fathers income it may be prudent to take the gamble on disposing of the claim at the hearing.

[Emz0305]

We all have different experiences on the SCT.. What I would say is that if this case has a profound impact on your fathers income it may be prudent to take the gamble on disposing of the claim at the hearing.

 

You mean he's better going and hope that it's struck out? I think I'm starting to convince him that he needs to go. Slowly slowly catch a monkey lol