Case adjourned for the 2nd time

[missjj]

Hi Please could someone can help me with the following, I have kept it s short as I can.

 

A BAYV company took me to court for the return of goods,

the civil case was heard last month and I defended myself,

the judge adjourned the case as part of my defence was that the company's credit agreement was unenforceable,

 

 

the judge set a 2 week time limit for me to write a statement explaining reasons why and a new hearing date was arranged for today,

I turned up early but the claimant phoned 10 minutes before the hearing to say they would not be attending

as there had been an accident and they were stuck in traffic,

 

 

I went into court and asked the judge if he could strike it out as I did not think that 10 minutes was sufficient notice

and I felt that the claimant should have said that they were going to be late and asked the courts advice,

 

 

the case was the first one scheduled to be heard today,

I said that I thought it unfair that I should have to attend court again

as they were made aware in the first hearing that I suffer from anxiety and a chronic bowel disorder,

the judge still decided to adjourn the case.

 

 

I was very upset as I thought that the nightmare would be over today whether it went in my favour or not I just wanted it over with.

 

When I got home I checked for road accidents and /or delays along the route that the claimant would take

and the surrounding areas and there has been none,

 

 

I feel so frustrated and upset that this company appear to be using delay tactics as they are aware of the personal difficulties I have

or maybe they just wanted more time , I don't know

 

Is there anything I can do?

[AndyOrch]

CPR 39.3.......

 

Failure to attend the trial

 

39.3

(1) The court may proceed with a trial in the absence of a party but –

(a) if no party attends the trial, it may strike out(GL) the whole of the proceedings;

(b) if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and

© if a defendant does not attend, it may strike out his defence or counterclaim (or both).

(2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.

(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside(GL).

(4) An application under paragraph (2) or paragraph (3) must be supported by evidence.

(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant –

(a) acted promptly when he found out that the court had exercised its power to strike out(GL) or to enter judgment or make an order against him;

(b) had a good reason for not attending the trial; and

© has a reasonable prospect of success at the trial.

 

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part39

[AndyOrch]

And CPR 27.9

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.9

 

 

Non-attendance of parties at a final hearing

 

27.9

 

(1) If a party who does not attend a final hearing–

 

(a) has given written notice to the court and the other party at least 7 days before the hearing date that he will not attend;

(b) has served on the other party at least 7 days before the hearing date any other documents which he has filed with the court; and

© has, in his written notice, requested the court to decide the claim in his absence and has confirmed his compliance with paragraphs (a) and (b) above,

the court will take into account that party’s statement of case and any other documents he has filed and served when it decides the claim.

(2) If a claimant does not –

(a) attend the hearing; and

(b) give the notice referred to in paragraph (1),

the court may strike out(GL) the claim.

(3) If –

(a) a defendant does not –

(i) attend the hearing; or

(ii) give the notice referred to in paragraph (1); and

(b) the claimant either –

(i) does attend the hearing; or

(ii) gives the notice referred to in paragraph (1),

the court may decide the claim on the basis of the evidence of the claimant alone.

(4) If neither party attends or gives the notice referred to in paragraph (1), the court may strike out the claim and any defence and counterclaim.

[missjj]

Thank you andyorch, that's really helpful, lots of useful information on the site although I can't seem to find any information regarding disputing the claimants reason for non attendance so can I apply to the court to strike out this case (providing evidence) before the next hearing even though the judge adjourned it today?

[AndyOrch]

Yes you are well within your rights to make application (using the N244) and quoting the above CPR.You may be exempt from fee so check here.....

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?406096-LEGAL-EX160A-Court-Fees-are-you-exempt.-**Correct-as-at-Feb-2015**

 

As part of that application I would also be asking for costs....The court does have a discretion to award costs where a party has behaved unreasonably.

 

This includes:

 

Making unnecessary applications.

 

Causing a late adjournment of the hearing.

 

Failure to comply with directions or orders.

 

Refusing to negotiate.

 

Failure to comply with protocols.

 

Mis-stating value of the claim so it is allocated to small claims track to avoid costs liabilities.

 

You may also be able to claim travel expenses and Loss of Earnings for you or any of your Witnesses who have had to come to court to give evidence for you, the amount you can claim is restricted.

 

Regards

 

Andy

[andydd]

Excellent advice above, remember when you are stuck the CPR is your friend, just Google CPR Costs, or whatever..Also most CPRs have an accompanying Practice Direction giving practical advice/steps. I also bought a cheap book online about CPR which expands greatly upon all the rules and I found very helpful.

[missjj]

That's brilliant, thank you so much, I will get onto that now, greatly appreciated

[Ganymede]

Thank you andyorch, that's really helpful, lots of useful information on the site although I can't seem to find any information regarding disputing the claimants reason for non attendance so can I apply to the court to strike out this case (providing evidence) before the next hearing even though the judge adjourned it today?

 

The judge has dealt with the adjournment at the hearing today so an application to now have the claim struck out on the same grounds is inadvisable in my opinion.

 

Costs of today's adjournment should ideally have been requested before you left Court.

[missjj]

The judge has dealt with the adjournment at the hearing today so an application to now have the claim struck out on the same grounds is inadvisable in my opinion.

 

Costs of today's adjournment should ideally have been requested before you left Court.

 

 

 

 

 

Hi, I would be disputing the reason the claimant gave for non attendance and providing evidence to support this on my appeal, I did not know this when in court earlier only when I got home and checked traffic updates.

I didn't think about today's cost I should have asked, thank you for this

[AndyOrch]

This is costs in the case...second adjournment...the claim should have been struck out...as per the above CPR.

 

missjj going back to your first post you state......

 

"The judge adjourned the case as part of my defence was that the company's credit agreement was unenforceable, the judge set a 2 week time limit for me to write a statement explaining reasons why and a new hearing date was arranged for today,"

 

What did he set,if anything for the claimant to prepare for the second hearing ?

[missjj]

andyorch he didn't set them anything, just for me to write statement , the claimant didn't even bring a copy of the agreement, they were given a copy of mine at the court.

[AndyOrch]

Seems strange....they issue a claim you submit a defence...the claim proceeds to trial......the claimant has not done standard disclosure they take your copy of your agreement....the Judge adjourns and asks you to provide a further particularised defence....and then the second hearing is adjourned because the claimant cant get there (or be bothered to attend).

 

Its your choice whether to submit an application (if you can get it free nothing to lose) but judging from above the Judge seems very lenient on the claimant.

 

Without all the finer details....IE did you submit a Directions Questionnaire ...was the first hearing the trial or just a preliminary hearing? Did the claimant send you standard disclosure and witness statement...did you reciprocate...how well drafted was your first defence.....it difficult to advise on your next step.

 

But judging from the above performance of the claimant...it may be wise to ride it out...attend the next hearing...whether they will show this time who knows....and see.... if they dont he should strike the claim out.....and if he does don't forget to ask for costs for the previous court attendances.

[missjj]

Seems strange....they issue a claim you submit a defence...the claim proceeds to trial......the claimant has not done standard disclosure they take your copy of your agreement....the Judge adjourns and asks you to provide a further particularised defence....and then the second hearing is adjourned because the claimant cant get there (or be bothered to attend).

 

Its your choice whether to submit an application (if you can get it free nothing to lose) but judging from above the Judge seems very lenient on the claimant.

 

Without all the finer details....IE did you submit a Directions Questionnaire ...was the first hearing the trial or just a preliminary hearing? Did the claimant send you standard disclosure and witness statement...did you reciprocate...how well drafted was your first defence.....it difficult to advise on your next step.

 

But judging from the above performance of the claimant...it may be wise to ride it out...attend the next hearing...whether they will show this time who knows....and see.... if they dont he should strike the claim out.....and if he does don't forget to ask for costs for the previous court attendances.

 

 

Yes it does, I thought that, maybe the judge assumed it was straightforward as he only allowed 5 minutes for the case to be heard, when he adjourned it he again said that the next hearing would last 5 minutes, this time he has said that he will allow 30 minutes for the next hearing.

The first trial was just a hearing, my first defence was not well drafted by me I will admit and I only submitted it at the last moment which probably didn't look good on my behalf, after the first hearing I did receive copies of the LBA and the DF (which was the first time I had seen them) and after I had submitted my statement to the court and the claimant as ordered I received a statement from the claimant refuting mine (this was not in the order for them to do this), I submitted a further statement in response to this.

 

 

One thing that has stuck in my mind and I feel uncomfortable about is when I was sat in the court the last time, before the judge adjourned it (again) the judge jokingly said " ah well, at least you get to keep the TV for a bit longer", I think he saw by my face that I was a bit shocked and added hastily "I'm just joking " which makes me think his judgment is a foregone conclusion!!!

 

 

It has made me realise just how 'green' I am, I wish I had asked for help on here sooner, initially I was not going to go to court but after research and thought I had good grounds for defence.

 

 

I'm happy to pm anyone what I've done so far but I was a bit worried about posting too much information on the forum, thank you again for your advice

[andydd]

When did you start this agreement ?. Whilst a few years back some agreements were indeed unenforceable, companies have tightened up their act since and most recent agreements would almost certainly be enforceable. Perhaps with this in mind, the Juidge is being lenient towards the company and maybe due to your own admission your defence is poor.

 

You clearly entered into the agreement and have had the Tv for some time, so your defence would need to be very strong IMO to succeed.

 

It appears that the Judge has given you some leeway in that my understanding is that there has already been a hearing but your defence didn't explain WHY the agreement is unenforcaeble.

[AndyOrch]

Perhaps post up your intended defence and particulars of claim missjj ...we may be able to polish it.

 

Regards

 

Andy

[missjj]

Thanks andyorch, I will scan it in

[missjj]

Hi here are the uploads (I hope this time)

[missjj]

Sorry forgot to add, all their particulars of claim said was " return of TV" nothing else, no documents with court papers or anything from the company, I will post their reply to my 1st defence next

[AndyOrch]

So the claim form from Northampton stated as the the particulars of claim.......

 

 

" return of TV" and the court has allowed this farce to proceed?

[missjj]

The court was my local court,

[AndyOrch]

So not issued from Northampton Bulk MCOL then transferred to your local court?

[missjj]

This was their reply to my first letter

[missjj]

No andyorch, I don't think so, only court papers I received were from my local

[AndyOrch]

This was their reply to my first letter

 

Needs to be in PDF format not jpeg...too small to read

[mikeymack2002]

I know that you have a copy of your agreement, but did you request their copy under the CPR 31.14? This looks like it is only half of a case to me, in as much as ****************** has not provided you with all of the relevant documents. Just a thought here, perhaps asking for an extension to apply for those would be prudent? Then see what they produce.

 

 

The claimant should have given you all of those documents they intend on relying on in this case have they done so yet?