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

[Mike_hawk]

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

 

I think it has to be worth the day out, if this is allowed to proceed he'll have gone full circle with defence to file, possible prelim hearing to agree sje etc, disclosures, trial... the costs mount over time as will his possible loss of revenue from the business.

 

If he has the opportunity to dispose of the claim I'd be inclined to make time to attend.

[steampowered]

Please refer to http://legislation.data.gov.uk/uksi/1999/1225/made/data.htm?wrap=true, which is self-explanatory.

 

If your father is the actual party to the case and does not physically attend the hearing, then as a non-legally qualified person you do not have the right to represent him. In SCT the judge may let it slide but is unlikely to be impressed.

[andydd]

Oh yes..no-one else can represent him apart from a Solicitor, for many people though with a very strong case, they may will think £90 for half a day off work, thank you very much:)

[Emz0305]

No no, I don't want to represent him, no doubt about that I'd be terrible haha.

 

 

What is a McKenzie friend? Is that someone who accompanies the defendant into the hearings etc? Just seen it mentioned in some info I was reading on the County Court website.

[Michael Browne]

 

 

What is a McKenzie friend? Is that someone who accompanies the defendant into the hearings etc? .

Yes, but they can only advise the claimant, they cannot address the court or represent the claimant

[steampowered]

Yes, a McKenzie friend accompanies the Defendant into hearings and provides general support but does not represent.

 

If this is a contested hearing and the Defendant does not attend but the Claimant does, the vast likelihood is that the Claimant will win. As a general rule cases are not decided based only on paperwork or witness statements - judges take an extremely dim view of parties who do not attend hearings. Please do not assume that the judge will be happy with your father's excuse that he is busy at work.

[Emz0305]

Ok, thanks for all the advice, I think my dad WILL be attending and I will accompany him for support.

[steampowered]

OK good luck!

[Mike_hawk]

Ok, thanks for all the advice, I think my dad WILL be attending and I will accompany him for support.

 

I think thats a very sensible decision.

 

Don't forget to get your costs in the post to the other side before the hearing and take a copy with you on the day.

[Emz0305]

I think thats a very sensible decision.

 

Don't forget to get your costs in the post to the other side before the hearing and take a copy with you on the day.

 

 

 

Mike, re costs, I've mentioned this to my dad but he's reluctant as not sure if it would cause more problems.

 

 

At what point will the claimant have to pay his costs for attending? if the case is thrown out or if the claimant loses?

[Mike_hawk]

If the case is dismissed (possible) the j can summarily award costs on the day. If it drags on with an order for service of claim etc etc he could award costs in the case (payable at judgment) or costs on notice (ordered forthwith and contained within the N24 notice following the hearing).

 

The latter is generally the norm if the court has concerns regarding the claimants conduct and would usually provide for sanctions within the notice..... no pay, no case!

[andydd]

Mike, re costs, I've mentioned this to my dad but he's reluctant as not sure if it would cause more problems.

 

 

At what point will the claimant have to pay his costs for attending? if the case is thrown out or if the claimant loses?

 

Nothing to be reluctant about, its the norm to send in your assesment of costs, if you were facing a solicitor you can be sure that they would be sending YOU their costs !

 

It wont cause any more problems and wont be discussed at all untill the end of the hearing.

 

I was prepared for a strike out/summary judgement in my case and the other side sent me their costs for a simple 1/2 hour hearing, £950 !!, (it was technically pre-allocation, so not small claims)...but they have now withdrawn and settled so its all sorted now.

[Emz0305]

Back from court, Judge denied claimants application to set aside the set aside.

 

 

He has now ordered that the claimant serve his particulars within 7 days so has given him even more relief.

[Mike_hawk]

Any reference made to costs or sanctions?

[Emz0305]

We didn't get our costs in in time as it was Friday when I last posted on here and thought they had to be filed at court a couple of days before and served on claimant so we'd left it too late.

 

No mention of a refund of our £80 for the original application to set aside the default judgement, which the judge even said himself had to be set aside as it was against procedure.

 

Mike, what do you mean sanctions?

[Emz0305]

The claimant didn't even give a decent explanation for not serving particulars only to say that he thought he'd already served them prior to claim in September, and then even went on to blame the court because when he eventually filed his POC at the court a few weeks ago he gave the defendants copy in a separate envelope and said he thought the court served it on the defendant for him. The judge looked at his POC and pointed out that that was not even acceptable as it had not been signed with a statement of truth and advised him to re do it and serve on defendant within 7 days, and then he ordered that the defendant serve his defence within 14 days of that.

[andydd]

If you use the Summary Assement of Costs (linked above I think), this normally has to be at court 24hours before, but sometimes its ok to serve on day..BUT generally these are only needed for non-small track claims, and yours was on small track, so its perfectly acceptable to just bring up the issue at the end, normally judges will bring it up too..and as its on small track you could say, I've had day off can I have £90 (and in your case possibly return of original set aside fee as it shouldnt of been set aside).

 

Many on here are simply too worried and confused to 'rock the boat' but it is your right, after all solicitors are only paid through 'costs', so normally its a very big part of court proceedings, of course on small track this is somewhat reduced.

 

Its surprsing that the court has given the other side so many bites of the cherry, it really should of been struck out but it is understandable if judges do give LiP's some leeway as the whole process can be daunting for first timers.

 

So now..onward to the actual hearing. Keep an eye on timescales and get to court as soon as the deadline expires if he still doesnt serve on time and apply for strike out, its also worth posting up his POC if/when it arrives, if it looks very weak you could still ask for strike out or perhaps make a very low offer to make him go away !

[Emz0305]

The judge mentioned at the hearing about the claimant having an expert report done but then said oh but you've already had the car fixed haven't you. I piped up and said, yes you've fixed the car yourself which he then denied and said mechanics fixed it lol it states in his correspondence that he fixed it himself with the guidance of his mechanical friends, the same friends he intends to use as export witnesses.

 

Where does the law stand on this? Surely he's took away any chance of any independent evidence?

[SuperVillain]

Probably getting a bit ahead of yourself they need permission from the Court to use expert evidence and this will all be dealt with when both sides are completing their Directions Questionnaires which is probably a month away on the timescales set out by the order.

 

(CPR 35 is all about experts - http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35)

 

However given his past conduct I'd say it's still a big IF as to whether he'll comply with today's Order.

[Emz0305]

Probably getting a bit ahead of yourself they need permission from the Court to use expert evidence and this will all be dealt with when both sides are completing their Directions Questionnaires which is probably a month away on the timescales set out by the order.

 

(CPR 35 is all about experts - http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part35)

 

However given his past conduct I'd say it's still a big IF as to whether he'll comply with today's Order.

 

I think he now knows that unless he serves POC in next 7 days it's all over for him, and he seems to think that his physical evidence is 'without a doubt' enough to make the judge find in his favour.

[Mike_hawk]

Just have to wait on service, you would think if he were so sure of his position he would have taken some time to understand the process.

[andydd]

One problem with 'newbies' at court is that they have a picture in their mind that they are absolutely 100% right and that everyone will somehow know that, but the Judge has a blank mind, they know nothing about the case and its upto a claimant to persuede them of the merits of their case, they need strong evidence and this means actual evidence photos, reports, etc..and witness statements...but bear in mind the provisons of hearsay evidence which doesnt carry much weight.

[Emz0305]

Still no sign of POC.

 

On the General Form of Judgement sent by the court after last week's hearing, it states

 

It is ordered that The Claimant do send to the defendant and the Court by 4pm 18 March 2014 Particulars of Claim duly endorsed with a signed statement of truth.

 

To me this order can be taken either way, so does the POC have to be actually in the hands of the defendant by this deadline, or as long as he's posted them by this date? Its not that clear to me and leaves even more room for claimant to take even longer.

[Ganymede]

Still no sign of POC.

 

On the General Form of Judgement sent by the court after last week's hearing, it states

 

It is ordered that The Claimant do send to the defendant and the Court by 4pm 18 March 2014 Particulars of Claim duly endorsed with a signed statement of truth.

 

To me this order can be taken either way, so does the POC have to be actually in the hands of the defendant by this deadline, or as long as he's posted them by this date? Its not that clear to me and leaves even more room for claimant to take even longer.

 

 

 

It is clear and means that the PoC must be with the Defendant by 4pm tomorrow.

[Emz0305]

It is clear and means that the PoC must be with the Defendant by 4pm tomorrow.

 

Thanks for clarifying that, it wasn't that clear to me as it said sent and not served.