Hoist Portfolio 2/? claimform - old Barclaycard 'debt' ***Claim Still Struck Out ***

[Wandsworth2015]

They've missed 2 or 3 orders to comply now and I've complied with everything, despite what they imply.

 

 

1. I am the Legal Manager with the day to day care and conduct of this matter on behalf of the

Claimant. I am duly authorised by the Claimant to make this statement on its behalf. The

matters in this statement are within my own knowledge or come from reading papers

supplied to me by the Claimant or its predecessor in title, save where the contrary is

expressed.

 

2. The matters detailed herein are either matters within the Claimant's own knowledge or

matters of which we have been advised as the Claimant's solicitors.

The Claimant seeks relief from sanction pursuant to CPR 3.9 in respect of the Order made by

District Judge dated 4 November 2016.

 

4. The Claimant was in a position to comply with the Order made by District Judge on 21

June 2016 by giving disclosure. The circumstances regarding the breach were due to human

error. The Fee Earner who had conduct of the file was experiencing personal issues and

failed to note or diarise the Claimant's case management system which resulted in deadlines

being missed within a large litigious practice. This has come to light in the past 7 days and an

investigation is ongoing and the Claimant has acted promptly to remedy the breach.

 

5. The Claimant contends that the breach was unintentional and not serious as in the matter of

Mitchell v News Group Newspaper Limited (2013) EWHC 2355 (QB) Master McCloud. Both

parties were in breach of the Order as there is no record of the Defendant serving Disclosure

upon the Claimant and therefore no prejudice has been caused to the Defendant in any

event.

 

6. Upon filing of Directions Questionnaires the Claimant acted reasonably and respectfully

sought an Order to list the Claim on the Small Claims Track to limit costs for both parties as

the Defendant is a Litigant in Person and free up valuable judicial time in the spirit of the

over-riding objective.

 

7. The debt claimed in these proceedings is still owing to the Claimant as the parties failed to

settle.

 

8. The Claimant showed their intention to proceed by complying with the Unless Order for the

Claimant to pay a hearing fee had been noted and was paid only to be refunded by the Court

due to non-compliance with the previous Orders.

 

9. The Claimant respectfully seeks an Order that the Claim be reinstated and that the parties

be ordered to comply with Disclosure within 14 days with the Claim being re-listed for Trial

at the next available date — please see Draft Order attached.

[martin2006]

So they are blaming a lowly member if staff for messing it up.

 

I'm not 100% sure that objecting to set aside is the way to go with this WW, personally i would wait for Andyorch to give his input.

[Wandsworth2015]

My comment on those points that I have knowledge of:

 

4. They not only missed the order of June 21st, but also the orders in July and October, no fees was paid and no documents were ever received by me or the court.

5. They may not have a record due to their poor management, but I have a signature that it was received and I fulfilled the directions of the order, I'm the one who filed for it to be set aside.

7. They've yet to prove any debt is owing.

8. No idea when any fee was paid, the court informed me nothing was paid.

[Guest]

wld 'personal issues' be a 'debilitating illness' - prove it.

'a large practice' - so is not a small under resourced stretched firm, and so they shld have the resources to cover (and identify) any staff illnesses..

you, an LiP with no 'resources', complied. and have proof of receipt.

it is 'serious' as they have repeatedly failed to comply with the court ( you mentioned they were even given more time after the earlier orders), and is prejudicial. disclosure is important.

etc

just some initial thoughts

have a look at the case,

[Wandsworth2015]

Some clear and positive points there Ford.... thank you

[Guest]

further to mitchell case

eg

http://www.olswang.com/articles/2014/07/court-of-appeal-provides-clarification-on-mitchell/

[AndyOrch]

You must respond by way of a witness statement Wandsworth2015 and state all the above... point by point... listing your objections should their application be granted...have they requested a hearing or without?

 

Andy

[Wandsworth2015]

You must respond by way of a witness statement Wandsworth2015 and state all the above... point by point... listing your objections should their application be granted...have they requested a hearing or without?

 

Andy

 

They have requested without a hearing, I've been up all night writing the witness statement

[Wandsworth2015]

Draft Witness statement in response to the application

 

1. the defendant in this claim, makes the following statement in objection to the claimants application to set a side believing it to be true and will state as follows:

 

2. The claimant failed to comply with the order dated 21 June 2016, made by District Judge (Name xxxxxx) requiring disclosure by 4pm on August 1 2016.

 

3. The claimant also failed to comply with the order dated 11 October 2016, made by District Judge requiring the claimant to give disclosure of all documents or the claim shall, without further order, be struck out and the Claimant shall pay the defendant costs of the claim.

 

4. The claimant has stated that personal issues of a single individual in a large practice, are responsible for failure to comply with the court order dated 21 June 2016. The claimant has not stated why they failed to comply with District Judge order dated 11 October.

 

5. The claimant has stated that the breach was not serious. The claimant requested an additional month upon filing directions questionnaire and yet the claimant, had been given an additional four months and repeatedly failed to comply with the court, an event which is prejudicial to the Defence.

 

6. The claimant has stated, both parties were in breach of the order as there is no record of the defendant serving disclosure upon the Claimant and therefore no prejudice has been caused to the defendant.

 

7.The Defendant served disclosure by Royal Mail, registered post mail, tracking code xxxxxx received by a “surname” on the 27 July 2016 at 10:33am.

 

8. The claimant has stated the debt claimed is still owing. As per my witness statement in disclosure to the claimant. I requested a copy of the agreement, default notice and supporting documentation from the claimant solicitors, Howard Cohen and Co, pursuant to CPR 31.14, in order to prove the validity and defend the claim. I have received no valid documentation to date and a repeatedly failure to comply by the claimant, has further enforced my position.

 

9. The defendant objects to the claimant seeking relief from sanctions as per their application dated 18 November 2016, received on the 23 November 2016.

 

10. The defendant seeks to uphold the order made by District Judge dated 4 November 2016, that the claim stay struck out, pursuant to Order 5 October 2016 and the Claimant shall pay the defendant costs of the claim.

 

 

I believe that the facts stated in this Witness Statement are true.

Edited November 23, 2016 by Andyorch
edited

[AndyOrch]

Just a few tweaks in red Wandsworth

[martin2006]

Great work WW, get some sleep now, well done

[shamrocker]

Wandsworth, I think there's a couple of typo/grammatical errors too....you'll probably spot them if you read through it a few times. It's never a bad idea to get the little details right.

 

Sham

[AndyOrch]

Wandsworth, I think there's a couple of typo/grammatical errors too....you'll probably spot them if you read through it a few times. It's never a bad idea to get the little details right.

 

Sham

 

Now edited

[Wandsworth2015]

Wow thanks guys, I thought I was getting too Harvey Specter on it, but turns out my head was in a good place. Managed to get some work this morning, so squeezed in a few hours and now back home, will review again and then get 40 winks before finalising. I have the judges original names etc in my copy, I left out for CAG.

 

If you don't mind I will post my final piece here before putting in the post, do I need to provide a summary of draft directions with the witness statement?

[martin2006]

If Andy has edited it WW its good to go if you are happy with it. I will leave it for Andy to also answer your question re draft directions

[AndyOrch]

With regards to directions as your not submitted an application notice then your witness statement is stand alone and in response to the claimants application..you should however serve a copy of the WS on the claimant also..but not until you receive notification from the court re their application.

[Wandsworth2015]

I didn't even think of that, so the application I have is direct from the claimant and not from the court. Just to be clear, I send my witness statement to the court today, (it's round the corner I can deliver by hand).

 

I then wait for the court response reference the application before sending to the claimant ?

[AndyOrch]

If the claimant has actually made an application (most are just threats) then the court should serve you a copy of the N244/Witness statement and a General Order confirming if it is to proceed with or without an hearing.....once you have dates then thats the normal time to submit any witness statement in response.....which should normally be 7 days pre hearing.

[Wandsworth2015]

I have a covering letter from Howard Cohen, stating the following:

 

We refer to the above matter (claim) and acknowledge your recent letter seeking costs. (23 hours at LiP rate £437).

 

Our client has instructed us to make an application to set aside the recent order striking out the claim.

 

Therefore, please find enclosed by way of service upon you the claimants application for relief from sanctions which has been filed with the court.

 

We trust this clarifies the matter.

 

• Enclosed is the Application notice (N244)
  
• Copy of the witness statement
  
• Draft directions.
  

 

So nothing direct from the court.... so I hold off on sending the witness statement to both the court and claimant until the court notifies me in writing?

 

Apologies, really want to approach this correctly in the final stages.

[Guest]

the court shld send notice of their app'n. unless the J on the off chance happens to dismiss it of their own accord straight away. that wld be nice.

as the others then, maybe wait abit. if dont hear anything from the court soon ish, cld just give the court a ring to see if anything has happened since the strike out order.

[Guest]

what do those 'draft directions' say?

[Wandsworth2015]

Nothing from the court yet:

 

 

 

DRAFT DIRECTIONS from Cohen.....

 

1. The Claimant’s Application for Relief from Sanctions dated 18 November 2016 be granted-

 

2. The Claim be reinstated.

 

3. Each party must deliver to the other party and to the court office copies of all documents m

 

Witness Statements that they intend to rety upon within 13 dm

 

4. The Claimant must pay a £545.00 hearing lee within 14 days.

 

5. Both parties to file pre-trial checklists no later than 14 days.

 

6. No expert evidence being necessary. no party has permission to rely on expert witness.

 

7. Claim be listed for Trail with a time estimate ol 2 hours at the next avaiiabie date-

 

8. There is no Order as to costs.

 

Filed by Howard Cohen and Co

[AndyOrch]

So nothing received from Court as yet Wandsworth ? Perhaps give them a bell and ask about this application ?.

 

Andy

[Wandsworth2015]

Nothing from the court at all, last communication from them was the case was struck out as per the order.

 

 

I've called the court and they stated there was a note that the case was being reviewed "marked urgent " by the Judge and all they could advice was that directions on that outcome would be provided.

 

Sounds ominous,

do I submit a witness statement in defence of the application or sit tight,

 

 

seems strange to respond to the claimant and not wait for a response from the court stating they are willing to take a defence statement from me in relation to the application.

 

thoughts?

[AndyOrch]

No you cant submit a WS in response until you receive official notification its being allowed