lowell/overdale claimform - old Shop Direct CAT debt - Now Wiped out by my Court Charges Reclaim **WON**

[Ftgab19]

Hi Old cogger

 

Could you tell me what points can go or which one's to make shorter? I'm not sure what else I could take out that's not needed.

 

Thanks

Andrew

[AndyOrch]

Change 5. to rolling credit not unsecured.

 

Remove from 17. MCOB (Section 12.5). again thats for Mortgages.

 

34 A&B merge them into one line and remove declaration

 

Think again about E...if you defaulted then the claimant is entitled to mark your file accordingly

[Ftgab19]

Hi Andy

 

I've added the changes and I think I've finished the Exhibits.

 

I'll upload it for you to look at and If its okay I'll email tonight. Or do I have until the 27/06/2017 to email it?

 

Thanks

Andrew

images(4).pdf

[AndyOrch]

You must submit it by the dates stated within your Notice of Allocation (Courts Directions) before the hearing date.

 

Regards

 

Andy

[Ftgab19]

Hi Andy

 

My court papers say two weeks before the hearing date the 11/07/2017. So that's the 27/06/2017 I think.

 

Is the witness statement okay or do I need to change anything?

 

Thanks

Andrew

[AndyOrch]

Looks good to me...its for them now to justify why the charges are justified

[Ftgab19]

Hi Andy

 

That's great thank god lol.

 

It felt a lot longer then it took. I'll get it emailed off tomorrow since I've got until then.

 

Thanks for all your help I hope they settle

 

Andrew

[Ftgab19]

Update

 

I rang up the court yesterday and they said the defendant witness statement was sent in on the 28/06/2017 and was on the system on the 28/06/2017. I'm not sure how it got on in one day but the deadline was the 27/06/2017 so does that mean they've not complied with the courts orders?

 

Also I've still not got a copy of the witness statement or heard anything from them and the hearing is only 4 days away. Should I send them a letter asking for a copy of the witness statement?

 

Thanks

Andrew

[AndyOrch]

Tell the court they failed to serve it on you...and therefore they have not complied with the court directions...whether you ask the court for a copy is your decision...but you can enter trial and state the fact and that their WS should be dismissed as you have not been served or had time to consider.

 

Andy

[Ftgab19]

Hi Andy

 

I thought that meant they hadn't complied with the orders. Would the defendant be able to stop the witness statement being dismissed? I can't see how they could because surly it be an unfair trial if it could go ahead with them knowing my statement but me not knowing theirs.

 

Also what do I do if it turns up like the day before the trial?

 

Thanks

Andrew

[AndyOrch]

directions clearly state 14 days pre trial....dont let them ambush you...the court should impose sanctions.

[Ftgab19]

Okay Andy thanks

 

I'll let the court know that they have clearly not complied and probably had no intention of complying. Also what are sanctions in court? Would that mean there defence is struck-out and I win by default?

 

Thanks

Andrew

[AndyOrch]

Correct...also if they have failed to disclose any evidence on you (documents) then they can only proceed on verbal evidence...no written.

[Ftgab19]

Thanks Andy

 

So what would I need to say when I go into the court room to have the defendants witness statement and defence struck out? Do I have to say it a certain way or can I keep it simple?

 

Thanks

Andrew

[AndyOrch]

Simple in your own words...you can refer to CPR 3.... In civil litigation, the court’s general case management powers are set out at Part 3 of

the CPR.

[Ftgab19]

Thanks Andy

I've been looking at part 3 of the CPR and found Power to strike out a statement of case part 3.4. Am I right in thinking I can use paragraph (2)c "that there has been a failure to comply with a rule, practice direction or court order." in my statement to the court to get the defendants witness statement and defence struck out?

 Thanks

Andrew

Also would I refer to there witness statement as an "Affidavit" when I request that the judge strike it out?

Thanks

Andrew

I'm not sure if I've understood the CPR right but would the following make sense and be okay to be the first thing I say to the judge?

Sir, I would like to draw your attention to the Defendant’s lack of compliance with the orders set out in the “Notice of Allocation to the Small Claims Track”. In this notice, it was ordered that the Defendant has to deliver to the Claimant copies of all documents on which the Defendant intended to rely upon no later than 14 days before the hearing.

The Defendant to this date has not delivered any witness statements or case evidence to myself the claimant. In light of this failure to comply with the orders set out by the court I request that the judge refers to part 3.4© of the CPR and strike-out the Defendant’s Witness statement and Counterclaim.

Thanks

Andrew

Bump

[AndyOrch]

Perfect

 

Have they made a counter claim?

[Ftgab19]

Hi Andy

Thanks for your reply and no there wasn't any counter claim. I thought their defence was classed as a counter claim but after looking up it's not my bad lol.

Would you by any chance have an idea what would most like be said to me or happen after I give my statement? I just want to be ready encase they say something I don't understand.

Also what documents do I need to bring to the court. I'm guessing the witness statement and all correspondence?

Thanks

Andrew

Also Andy

Am I right in this calculation of how much I'm owed?

408.00 in fees

504.56 Interest in restitution

166.25 in 8% Simple Interest

80.00 court fee

Total £1,158.81

Is there any court costs I should be adding or is it all good?

Thanks

Andrew

[AndyOrch]

Take all your file.....paginate it so easily accessible .....top page should be your bullet points that your claim relies upon.

 

Figures look okay...but you have all the workings so I assume you have checked them...you have already added your court fee..no further costs.

[Ftgab19]

Hi Andy

I'll take everything with me then.

What do I have to do when I've made my statement to the judge?

Also will I have to make another statement for the judgement after the judge has said his bit or will the judge do that after he strikes out the defendants witness statement?

Thanks

Andrew

Just done a bit more research into what happens.

What should my closing statement be.

Can it be like the opening statement?

Thanks

Andrew

[AndyOrch]

Not sure were you are researching Andrew but there wont be any opening or closing statements..its not Crown Court...let the DJ lead the hearing...you will be asked by the DJ to speak at the relevant times as Claimant.

 

But your initial statement should concentrate on the defendants lack of compliance and you ask the court to consider what we have discussed above and also that the defendant is barred from introducing written documentary evidence and if allowed to proceed only rely on verbal evidence only.....then let the Judge direct.

 

You will be lucky if he allows more than 45mins.

[Ftgab19]

Hi Andy

 

Sorry I've been trying all morning to get an idea of what would happen in the room and I keep getting different views when looking. I'm gunna set off for the court soon will this be okay for me to say when asked.

 

 

1. Sir, I would like to draw your attention to the Defendant’s lack of compliance with the orders set out in the “Notice of Allocation to the small claims Track”.

 

2. In this notice, it was ordered that the Defendant has to deliver to the Claimant copies of all documents on which the Defendant intended to rely upon no later than 14 days before the hearing.

 

3. The Defendant to this date has not delivered any witness statements or case evidence to myself the claimant.

 

4. In light of this failure to comply with the orders set out by the court. I request that you refer to part 3.4© of the Civil Procedure Rules and strike-out the Defendant’s Witness statement.

 

5. I also think that you should apply sanctions to the defendant for this failure to comply with the orders and that the defendant is barred from introducing written documentary evidence.

 

6. If the defendant is allowed to proceed with the case after these sanctions I request that the defendant only rely on verbal evidence.

 

 

Also If the judge does strike out their witness statement. Will he still want to hear my witness statement or will he just apply judgement since the defendant no longer will have a defence?

 

Thanks

Andrew

[AndyOrch]

Yes thats fine.....he wont strike out their witness statement as they have not submitted one...you mean their defence?

[Ftgab19]

They haven't sent a copy to me but they filed one with the court on the 28/06/2017 a day after the dead line. So I thought it would have to of also been struck out. Does that mean I should ask to strike out there defence not witness statement?

 

Thanks

Andrew

[AndyOrch]

Both

 

Its important to understand that any party cannot be ambushed with evidence without due time allowed to consider it..thats the basic mechanics of law and trial...file and serve...if you get this point across effectively...and succinctly then you shouldnt need to worry about anything further as they will either strike out or adjourn to allow you to consider their statement.

 

Do not allow the Judge to allow the defendant to ambush you!!!