Small claims struck out

[Irvarna2012]

Please could someone help

 

 

i bought a car which went faulty after four months.

 

 

i am taking the dealer to small claims court.

 

 

i was given a date of 1st feb 2016,

took a day off work to attend

 

 

got back yesterday from holiday to find a letter from chesterfield court to say it has been struck out as i failed to comply with the previous order requiring the filing of evidence to be relied upon.

 

 

im no solicitor so having gone through the paperwork

i realised the court wanted me to get an expert to check the vehicle and submit his foundings.

 

 

im not sure what to do now as ive paid £3250 for the car

£185 for the initial fee and

then a further £355 for a hearing

which has now been struck out!

 

 

Can i ask to resubmit the case and if so will i have to pay again

i was due in court tommorow.

 

 

please help

[BankFodder]

It certainly seems very harsh, and I think that you will need to make an application using a form n244 to have the case restored.

 

You will have to explain that you are a litigant in person and that you did not understand the procedure and that it would be in the interests of justice for you to be given a further deadline to file all the correct papers.

 

You better be aware that the application will cost you about £155 – but I would expect that you stand quite a decent chance of success.

 

Does it say in the court order that the judge decided this on his own initiative?

 

I think that you should call court tomorrow and find out if the other side wrote to the court and asked for the case to be struck out. This is entirely possible and in this case, did you receive any notification? If you didn't receive any notification then this will be an additional ground for restoring the case.

 

However, let me say that simply because you are a litigant in person doesn't absolve you from complying with the basic requirements. The court will cut you some slack – but if there are requirements stated in the paperwork you receive then it is your responsibility to read the paperwork and to comply with requirements.

 

I understand that you missed it when you receive the documents – but it seems from what you say that really you didn't pay very much attention to what they were writing to you about.

 

Call the court tomorrow. If they say yes that there had been an application to strike out then asked the court to provide you immediately with copies of any application or any correspondence they received – by email if possible.

 

Come back here and tell us what you have found out.

 

When did you buy the car? Before or after 1 October?

[AndyOrch]

Welcome to CAG Irvarna2012

 

Thread moved to General Legal Issues.

 

Regards

 

Andy

[Irvarna2012]

Thank you for the reply.

 

 

The court stated that both sides failed to comply

so im not sure what they asked the dealer for.

 

 

i bought the car in March 2015

broke down the same day i bought it back from Derby.

 

 

I gave him the benefit of doubt as he told me to take it to a local garage which i did

and he covered the cost of £250,

was a faulty control unit.

 

 

three days later it broke down again so back in garage another faulty control unit

he then paid again but the garage only charged him labour.

 

 

Then in July it completly broke down again whilst i was doing school run and i just had enough.

I wrote to him emailed him but received no response

then decided to take him to small claims.

 

 

I was advised by Citizens advice that under faulty goods act i can do this.

And now ive got all this to deal with as i dudnt read the paper work.

 

 

my fault i agree.

[AndyOrch]

So you failed (and the defendant) to follow the Courts Directions once the claim was allocated (Directions are contained within your Notice of Allocation) after submitting your directions questionnaire.

 

Does the Notice of Strike out offer any redress ? ie time to vary set a side the Order?

[BankFodder]

Okay. The fact that both sides failed to comply will be helpful to you.

 

However, you will need to get a form N244. You can download one from the courts website.

 

In the section which says what you looking for and why, you need to put that pursuant to CPR 3.3 PD 5, you are asking for the order dated XXX striking out your claim to be rescinded or setaside and for the case to be restored and that new deadlines be set for the filing of evidence.

 

In the part that asks you for additional information, you should put

 

I am a litigant in person and I have never done this kind of thing before. I failed to understand that I needed to file certain papers in time for the hearing and because of my lack of understanding, the claim has been struck out.

 

I am making this application pursuant to CPR 3.3 PD 5

 

I am making this application as quickly as possible after receiving the strikeout order of the court and within the time limit set down in CPR 3.3 PD 5

I would like the court to consider the following points.

 

I am a litigant in person – and I will take more care in future.

 

I understand the defendant also did not comply with the requirements, however it is I the claimant who is suffering because not only have I a motorcar which does not work, that if I am not given an opportunity to pursue the claim, I will have lost my claim fee and also the hearing fee, whereas the defendant – who also has not complied – will have lost nothing and will have benefited from avoiding his statutory obligations as a commercial car dealer.

 

The defendant has effectively admitted liability because the car broke down on the first day and then on several subsequent occasions with the identical problem. The defendant tried to remedy the fault on two occasions but then stopped doing anything at all.

 

I believe that the defence has no valid response to make to my claim.

 

Given the fact that the defendant is a commercial trader and with experience in the industry and I merely a litigant in person, I would respectfully point out that it would not be in the interests of justice to allow this claim to be struck out merely because I have failed to comply with a certain requirement even though I agree that it is important.

 

I therefore ask the court in the interests of justice to exercise its discretion in this matter and to restore the case with adequate deadlines the me to comply with all of the evidential requirements that are desired by the court.

 

I apologise for any trouble and inconvenience I have caused. I will take far more care in the future

 

Because the order to strike out was made on the courts own initiative and without a hearing, I would respectfully suggest that the hearing is not necessary to consider my application.

 

I have sent a copy of this application to the defendant.

 

Make sure you fill out all the rest of the form carefully – without making any more mistakes.

 

In the part where it says do you want the application dealt with by means of the hearing – tick the box which basically means that you're not asking for hearing – I can't remember what it actually says.

 

The judge may still order a hearing – but it would be nice if he doesn't because it will be much quicker.

 

Where it says what level of judge needs to deal with this application, put "district judge"

Let us know if you've got any questions.

 

Get this off tomorrow.

 

Once you have sent this off, you need to telephone the court every Monday to find out if has been dealt with.

 

The reason you do this is because although the County Court staff are very nice, they are very under resourced and really quite inefficient. It is entirely possible that the matter will be decided and then for some reason or other they fail to let you know. Suddenly, a few weeks down the line, you find that there's been another strike out ordered because you haven't complied with the fresh instructions to provide evidence – simply because the letter rescinding the strike out was never sent you.

 

Stay ruthlessly polite with the County Court staff but call them every Monday starting from next week and just ask very gently has the matter been brought before the judge yet.

 

They may will say to you not to bother to phone because they will let you know – but still phone every Monday. Keep it polite. Keep it gentle. Whatever you do, don't antagonise the court staff. They are only doing their job and you need them on your side.

 

While you're waiting for this, go through the papers you already received – the ones that you ignored and understand exactly what's been asked and get ready to start acquiring the evidence they asking for.

 

Don't bother to actually begin acquiring it because you don't want to go to any further expense in case the order is not rescinded. However, if it is rescinded then the courts requirements will probably be identical so then you can leap into action.

 

However, if the order is rescinded, don't make the same silly mistake again. Read the papers carefully and make sure that they are asking the same thing, there might be some differences.

 

Let us know if you have any questions and let us know what happens

[BankFodder]

 

Does the Notice of Strike out offer any redress ? ie time to vary set a side the Order?

 

Good question. It didn't occur to me to ask

[AndyOrch]

You may have to state within your application requesting an Order for relief from sanctions (CPR 3.9)

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03#3.9

 

Court’s power to make order of its own initiative

 

And your application pursuant to CPR 3.3 PD 5

 

(5) Where the court has made an order under paragraph (4) –

(a) a party affected by the order may apply to have it set aside(GL), varied or stayed(GL); and

(b) the order must contain a statement of the right to make such an application.

(6) An application under paragraph (5)(a) must be made –

(a) within such period as may be specified by the court; or

(b) if the court does not specify a period, not more than 7 days after the date on which the order was served on the party making the application.

[Irvarna2012]

Great i will call the court tiday and akso submit the firm you have advised.Feel a little better niw that i may actually be able to do something about this.

 

Will keep you updated as to what the court says.

 

Thank you

[BankFodder]

I have made a couple of edits - in red, above - based on the information provided by Andyorch

[Irvarna2012]

Many Thanks

[Ganymede]

Thank you for the reply.

 

 

The court stated that both sides failed to comply

so im not sure what they asked the dealer for.

 

 

i bought the car in March 2015

broke down the same day i bought it back from Derby.

 

 

I gave him the benefit of doubt as he told me to take it to a local garage which i did

and he covered the cost of £250,

was a faulty control unit.

 

 

three days later it broke down again so back in garage another faulty control unit

he then paid again but the garage only charged him labour.

 

 

Then in July it completly broke down again whilst i was doing school run and i just had enough.

I wrote to him emailed him but received no response

then decided to take him to small claims.

 

 

I was advised by Citizens advice that under faulty goods act i can do this.

And now ive got all this to deal with as i dudnt read the paper work.

 

 

my fault i agree.

 

I assume that you had to file a jointly instructed engineers report? Please can you type out exactly what the original Court Order that you breached says?

 

BankFodder has given you an excellent start, but I would also refer to CPR 3.9 and ask for relief from sanctions for failure to comply.

 

You must also refer to the cases of Denton v White & others; Decadent Vapours Limited v Bevan & others; Utilise TDS Limited v Cranstoun Davies & others [2014] All ER (D) 53 (July); [2014] EWCA Civ 906 (known as "the Mitchell 3") when asking for relief from sanctions for failing to comply with the Court Order. Pay particular attention to the 3 stage test and apply it to your situation.

[BankFodder]

I'm going to say right now that although Ganymede is probably right in what he is saying, I would suggest that you don't complicate the issues any more.

 

You have already told the court that you are a litigant in person and this is the reason why you didn't get your act together. If you then start putting together a highly technical document referring to all sorts of case law – which of course you don't understand anyway, I think that you are going to alienate the court.

 

You have to sign the application notice as a statement of truth and this means that you have to understand that the cases you are citing are relevant and what they are about.

 

I'm sorry to say that it is unlikely that you could manage to do this – and certainly in the time available.

 

Keep it simple as possible. I think that we have been technical enough and we don't need to make it any more convoluted

[Ganymede]

Good point BankFodder about the caselaw for a LiP but I still think the OP has a better chance if he understands and applies the law to his application.

 

However, it's an absolute must to at least refer to CPR 3.9 and request relief from sanctions as a minimum.