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Claim Issued Out Of Juristuction? reply from defendant - help

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I am trying to pursue a company in Scotland via small claims court,

I have received the paperwork back today

 

Subject : Claims Issued Out Of Jurisdiction

 

Please find enclosed claim forms returned to you for service,

As this is a claim form to be issues out of the jurisdiction of the court.

Money Claims Centre no longer servers the claim form direct to the defendant.

The money Claims Centre has received this guidance from Court Business Support and as directed by a District Judge.

Rule 6.4b of the cilic Procedure Rules only refer to general service by first class post

to a jurisdiction within England and Wales and does not apply to foreign process.

There is no provision to serve papers to addresses outside England and Wales

 

I have rang PSU in Liverpool who in my opinion wasn't overly helpful

 

in the pack returned I have :-

 

Notice of issue (Duplicate)

- I believe I keep this and fill in the missing dates of when sent, when it was received and date to reply

Copy of claim form and submitted evidence - which I send to defendant

N510 form - do I send that to the defendant ?

Response form - which I assume the defendant needs to ?

 

I need to know if I can put all the paperwork in the post and send via recorded method ?

I need to know how many days I have to give the defendant to reply ?

 

I know this is urgent and need to deal with it ASAP thanks for your support

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Hi LL - Welcome back to CAG.

 

I have asked one of my colleagues on the site team to respond accordingly.

They will be along shortly.


 

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We could do with some help from you.

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Just spoke to CCMCC as a long shot and was amazed !

what a wonderful and helpful gentleman I spoke to,

when ever I have had to speak to anyone in UK courts or solicitors

they simply scratch theit heads and say not sure what do to

 

the gentleman answered all my points politely, accurately, and was a very positive person to deal with,

all the information is shared below in case anyone else is in a similar situation

 

Notice of issue is to be kept by the claiment

 

Notice of Issue to be filled in with date you sent paper work in my case today 26/04/2016

then the date they are deemed to be served 2 day's after sending in my case 28/04/2016

and date the defendant has to reply by in UK it's 14 days

due to my defendant in Scotland they have 21 days so in my case 17/05/2016

 

The form N510 should of been kept by the court to inform them where everything is going,

I was advised to keep hold of this myself

 

if you ever need to serve court papers yourself for any reason you will need form N215

which is a declaration to the court describing how you served the paper's to the defendant

 

The original call to PSU explained my case for £1100+ was not worth pursuing due to how much it could cost me

to serve papers via bailiff's ect (HOW WRONG HE WAS!)

 

Sending paperwork to Scotland via post is fine,

I even upgraded the service to first class recorded (although first class service is accepted)

it's just the courts will only send files to address's in England and Wales

 

Just off now to the post office to send everything

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:thumb:

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just a little update, the defendant has give a responce, think he gave a 2/3 line statement with a covering letter from a third party

 

defence - the Quad bike was not sold by me, the buyer was clearly aware that the seller was a third party

 

Letter enclosed - I sold the quad bike to the claimant, it should of been obvious the quad bike was in my name on the V5, my friend dealt with the sale on my behalf, all the money take was then paid directly to a finance company, letter not signed

 

 

The actual purchase was made from A Company LTD, my credit card payment was taken by A Company LTD I was not given any receipts at the point of sale, when I finally did get a receipt it was on A company LTD letterhead stating half way down the page the sale was a private sale between myself and the registered keeper (named on the logbook)

 

I have never met anyone other than the owner of A Company LTD the quad bike was collected from A Company LTD and all funds half credit card and half cash were paid to A company LTD

 

I have declined the court's offer of mediation as I have already attempted private mediation, the seller of the quad is adamant he did not sell the quad and his response to letter before action started please take me to court so they can see this sale for what it really is

 

will await a hearing date which I guess is the next step

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That will be your Directions Questionnaire that you refer to.......Notice of Allocation and directions next Luke.

 

Andy


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that sounds about right, I filled in all the form's sent to me (they arrived saturday) all filled in and returned, the defendant I'm hoping is going to get a massive shock in court (small claims) when the judge seen's the receipt given to me was from Mr A's Company LTD

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Have you also served a copy of the DQ on the defendant ?


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yes all filled out photo copied twice, i kept the originals,1 copy to mmcmm and 1 copy to defendant, just a waiting game again

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I am reading everything online at the moment but some of it is a complete minefield, I requested a judgment default for my case, I live in England (Liverpool) and defendant lives in scotland

 

CCMCC stated

 

applicastion be refused. The Claimant needs to comply with Rule 12.10 and 12PD paragraph 4.3 & 4.5

 

Rule 12.10 just refers to judgment out of jurisdiction

 

12PD I am reading now

 

These are the things I have been told to view

12.10 The claimant must make an application in accordance with Part 23 where –

(a) the claim is –

(i) a claim against a child or protected party; or

(ii) a claim in tort by one spouse or civil partner against the other.

(b) the claimant wishes to obtain a default judgment where the defendant has failed to file an acknowledgment of service –

(i) against a defendant who has been served with the claim out of the jurisdiction under rule 6.32(1), 6.33(1), 6.33(2) or 6.33(2B); (service where permission of the court is not required under the Civil Jurisdiction and Judgments Act 19824);

(ii) against a defendant domiciled in Scotland or Northern Ireland or in any other Convention territory or Member State;

(iii) against a State;

(iv) against a diplomatic agent who enjoys immunity from civil jurisdiction by virtue of the Diplomatic Privileges Act 19645; or

(v) against persons or organisations who enjoy immunity from civil jurisdiction pursuant to the provisions of the International Organisations Acts 1968 and 19816.

 

12PD

4.3 On an application where the defendant was served with the claim either:

(1) outside the jurisdiction7 without leave under the Civil Jurisdiction and Judgments Act 1982, the 2005 Hague Convention, the Lugano Convention or the Judgments Regulation, or

(2) within the jurisdiction but when domiciled8 in Scotland or Northern Ireland or in any other Convention territory9 or Member State,

and the defendant has not acknowledged service, the evidence must establish that:

(a) the claim is one that the court has power to hear and decide,

(b) no other court has exclusive jurisdiction under the Act, the 2005 Hague Convention, the Lugano Convention or Judgments Regulation to hear and decide the claim, and

© the claim has been properly served in accordance with Article 20 of Schedule 1 to the Act, Article 9© of the 2005 Hague Convention, Article 26 of the Lugano Convention, paragraph 15 of Schedule 4 to the Act, or Article 26 of the Judgments Regulation

 

4.5 Evidence in support of an application referred to in paragraphs 4.3 and 4.4 above must be by affidavit.

 

underlined the parts that are applicable to my case in 12.10 but still unsure what I have done wrong

 

still very confused with all this, the biggest thing I can't understand is

 

by affidavit

 

who do I need to speak with to get an affidavit?

 

I have now found 2 forms, EX550 and N285 the N285 has very little information on it like I should write something in it? do I fill these forms in myself or do I have to get a legal professional to fill them in ?

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Default judgment obtained by making an application

 

12.10 The claimant must make an application in accordance with Part 23 where –

(a) the claim is –

(i) a claim against a child or protected party; or

(ii) a claim in tort by one spouse or civil partner against the other.

(b) the claimant wishes to obtain a default judgment where the defendant has failed to file an acknowledgment of service –

(i) against a defendant who has been served with the claim out of the jurisdiction under rule 6.32(1), 6.33(1), 6.33(2) or 6.33(2B); (service where permission of the court is not required under the Civil Jurisdiction and Judgments Act 19824);

(ii) against a defendant domiciled in Scotland or Northern Ireland or in any other Convention territory or Member State;

(iii) against a State;

(iv) against a diplomatic agent who enjoys immunity from civil jurisdiction by virtue of the Diplomatic Privileges Act 19645; or

(v) against persons or organisations who enjoy immunity from civil jurisdiction pursuant to the provisions of the International Organisations Acts 1968 and 19816.

 

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part12


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Thanks for your input, will read into it all again, on a quick look I couldn't find any reference to part 23 in part 12.10

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CPR 23 is with regards to making applications in general.

 

12.10 is as above and is CPR 12


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CPR 23 is with regards to making applications in general.

 

12.10 is as above and is CPR 12

 

I'm still none the wiser sadly, thank you for your assistance but it just dons't make any sence to me at all

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reading back over this again and again, I have noticed form N244 application for default judgment I'm not sure I sent this to the defendant I'm guessing thats the problem with cpr 23 ?

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Service Out of the Jurisdiction

 

The rules for service of legal proceedings outside the jurisdiction differ for companies and individuals located outside the jurisdiction. In some rare circumstances, the Court may dispense with service in the usual way, however the court would need to be satisfied that there are good grounds for doing so.

The rules governing service out of the jurisdiction can be divided into two parts those where permission of the court is required and where permission is not required.

Permission not required

Scotland and Northern Ireland

 

A claimant may serve a claim form out of the jurisdiction on a defendant in Scotland or Northern Ireland, and that service can be so carried out without permission of the Court. Thereafter, the Claimant may proceed to serve other court documents by the same method as used for serving documents in the jurisdiction, for instance by first-class post. This is an exception to the general rule that service must be affected in accordance with the law of the receiving country.

Obtaining Judgment in Default against a Defendant who lives or carries out their business in Scotland and enforcement of the Judgment

 

Legal Systems in the UK

 

When and why will this arise?

England and Wales operate under a different legal system to Scotland. In many cases it will be permissible to commence proceedings against a Defendant who lives or carries out their business in Scotland but necessary to enforce the judgment in Scotland, since that is where the Defendant’s assets are located.

Special rules apply where a Claimant wishes to obtain judgment in default in England or Wales in either a County Court or the High Court and then enforce that judgment in Scotland.

The time for responding to a Claim Form and Particulars of Claim where the Defendant lives or carries out their business in Scotland is 21 days from the date of deemed service. If the Defendant fails to respond within that time it is open to the

 

Claimant to apply for judgment in default.

How to apply for judgment in default

 

Where the Defendant lives or carries out their business in Scotland the following have to be sent to the English or Welsh Court in which the proceedings were commenced in order to obtain judgment in default:

An application for judgment in default

 

Form N244, which can be obtained from the Court office or from the Court Service’s website, should be used.

The application will be dealt with without the need for a hearing and should include the following information:

 

• That the Claimant intends to apply for an Order, a draft of which should be attached, that the Claimant be permitted under CPR 12.10(b)(i) to enter judgment in default for the sum claimed together with interest and costs because:

o The Defendant is domicile in Scotland;

o The Claim has been properly served in accordance with CPR 6.19(1);

o The Defendant has not filed an Acknowledgment of Service or a Defence and the relevant period for doing so has expired;

o The Defendant has not satisfied the claim;

o The Defendant has not filed an Admission;

o The claim is one that the Court has power to hear and decide;

o No other Court has exclusive jurisdiction under the Civil Jurisdiction and Judgments Act 1982 or the Judgments Regulation to hear and decide the claim.

 

An affidavit in support of the application

 

The affidavit should comply with the formalities of Practice Direction 32 to the Civil Procedure Rules and should contain the following information:

 

That the affidavit is made in support of the Claimant’s application for Judgment in Default made pursuant to CPR 12.10(b)(i);

 

• The date upon which the Claim Form and Particulars of Claim were issued;

• A statement confirming that the Claim Form and Particulars of Claim were properly served on the Defendant in accordance of the laws of Scotland, namely by recorded delivery post (the normal method of service in Scotland) and the date upon which they were served. (A Certificate of Service should be exhibited to the affidavit);

 

• The date the Defendant had until to file an Acknowledgement of Service or a Defence;

• A statement confirming that the Defendant has failed to file an Acknowledgement of Service or a Defence;

• A statement confirming that the Defendant has not satisfied the claim;

• A statement confirming that the Defendant has not filed an Admission;

• A statement that the claim is one that the Court has power to hear and decide;

• Brief details as to what the claim is about and why the English or Welsh Court has jurisdiction to hear and decide the claim;

• A statement confirming that no other Court has exclusive jurisdiction under the Civil Jurisdiction and Judgments Act 1982 or the Judgments Regulation to hear and decide the claim;

• If the Defendant is an individual, his or her date of birth, if known.

 

 

A draft order

 

Form N24 can be used, a copy of which can be obtained from the Court office or found on the Court Service’s website. The draft order needs simply to say that the Claimant has been given permission to enter judgment in default pursuant to CPR 12.10(b)(i).

 

The court fee

 

The Court fee payable is the Court fee payable for without notice applications. The amount of the Court fee can be found on the Court Service’s website.

How to apply for a certified copy of the judgment to register in Scotland

Once judgment in default has been obtained it is necessary to apply to the English or Welsh Court where the proceedings were commenced for a certified copy of the judgment to register in Scotland. In order to obtain a certified copy of the judgment the following need to be sent to the Court:

 

An application for a certified copy of the judgment

Form N244 should be used.

The application will be dealt with without the need for a hearing and should state that the Claimant intends to apply for the issue of a certificate of judgment to register for enforcement in Scotland because the judgment remains unsatisfied and provision for the issue of a certificate of judgment is made by Schedule 6 to the Civil Jurisdiction and Judgments Act 1982 and CPR 74.17.

An witness statement in support of the application

The witness statement should comply with the formalities of Practice Direction 32 to the Civil Procedure Rules and should contain the following information:

 

• That the witness statement is made in support of the Claimant’s application for the issue, in accordance with Schedule 6 to the Civil Jurisdiction and Judgments Act 1982, of a certificate of judgment to register for enforcement in Scotland;

• The name and address of the judgment creditor;

• The name and address of the judgment debtor;

• The sum payable and unsatisfied under the money provisions of the judgment;

• The amount of interest accrued to the date of the application;

• A statement confirming that the judgment is not stayed.

 

A draft certificate

 

Form 111 should be used, a copy of which can be obtained from the Court office or found on the Court Service’s website.

 

The court fee

 

The Court fee payable is the Court fee payable for without notice applications. The amount of the Court fee can be found on the Court Service’s website.

Registration of the judgment in Scotland and enforcement of the judgment

Once the certificate of the judgment has been received from the court it will be necessary to register the judgment in Scotland and take enforcement action. The procedure for registration of a judgment and enforcement in Scotland is governed by Scottish law and, therefore, beyond the remit of this website. Ordinarily a solicitor working in England or Wales would refer the case to Scottish lawyers at this stage.

 

Regards

 

Andy


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thank you Andy I will read all this in the morning step by step, it's all new information not something I have found in my search's as this is the last step before judgment a lot of time effort and money has been outlaid so far, I really don't want to fall at the last hurdle

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thank you Andy I will read all this in the morning step by step, it's all new information not something I have found in my search's as this is the last step before judgment a lot of time effort and money has been outlaid so far, I really don't want to fall at the last hurdle

 

:thumb:


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