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Can my county court claim be struck out?


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I am litigant in person.

 

 

At a court hearing on 7th December 2016, I was ordered to file and serve my claim on the defendant within 14 days.

I posted my claim by special delivery on 21st December 2016.

I have proof of postage and delivery – which demonstrates that the defendant signed for my claim on 22nd December 2016.

 

 

On 23rd December 2016, I received an email from the Defendant, acknowledging that he had received my claim on 22nd December 2016.

 

 

He also attached an application to the court stating that my claim should be struck out on the grounds that I had failed to comply with the court order to file and serve my claim within 14 days of 7th December 2016.

 

 

I have now received a court order stating that there will be a hearing to determine whether my claim should be struck out.

This hearing is listed on 20th March 2017

(the very day on which we were originally meant to have a case management hearing on my claim).

 

In the meantime the Defendant has not filed his defence or any other papers on me.

His defence was due to be filed and served by 18th January 2017 and I was due to file a response to his defence by 25th January 2017.

 

My questions are these:

 

1. Is the Defendant correct in stating that I have failed to file and serve my claim within 14 days of 7th December 2016?

 

2. If the answer to 1 is ‘yes’, can my claim be struck out for this reason?

 

3. As the Defendant has made a strike out application, does the defendant still need to comply with the deadline for filing his defence which was 18th January 2017?

 

4. At the case management hearing on 20th March 2017, if the Defendant’s strike out application is unsuccessful (as I expect it to be) do we then proceed to having a case management hearing on the claim or will the court simply give a further deadline to the Defendant to file his defence?

 

5. Is there something that I should be doing now in response to the Defendant’s strike out application?

 

Some background:

 

The Defendant has a history of non compliance with court orders in respect of this claim and has kicked this claim around for almost a year now

– employing one spurious delaying tactic after another

such as claiming non-receipt of court papers, illness etc.

 

 

He has never filed a defence in all of this time and I strongly suspect that he has no defence to file.

 

 

I had managed to obtain judgment in default against the Defendant

– which he manged to get set aside using these spurious delaying tactics.

 

 

The key thing that I have in my favour is that I have managed to register a charging order on his property

– which the court allowed to remain even after judgment was set aside.

 

 

Is there anything I can do or say before or at the case management hearing to bring this whole sorry saga to a quick and speedy conclusion in my favour?

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In theory, if you haven't complied with the court's directions, YES, your claim could be struck out.

 

In practice, if the court said "file and serve within 14 days of 7th December" and you didn't send it until 21st December, that they signed for on the 22nd, the court is incredibly unlikely to sanction you for a days tardiness, especially if the other side have been non-compliant before.

 

Did you "file" AND "serve" : so copies to both the other side AND the court?

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Did you "file" AND "serve" : so copies to both the other side AND the court?

 

Yes, I sent the claim to both the defendant and the court on the same day (21st December 2016)

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Yes, I sent the claim to both the defendant and the court on the same day (21st December 2016)

 

Good, as your position would be more risky if you hadn't filed with the court.

So, in theory, strike out possible,

in practice, if you haven't slipped before, the other side has, and you were a day late, I can't see the court striking it out based on a day's delay.

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Good, as your position would be more risky if you hadn't filed with the court.

So, in theory, strike out possible,

in practice, if you haven't slipped before, the other side has, and you were a day late, I can't see the court striking it out based on a day's delay.

 

It's more than a day as the papers won't be deemed served until 28th December 2016.

 

A day is a long time, there's recent case law for being sanctioned for a 45 minute delay.

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It's more than a day as the papers won't be deemed served until 28th December 2016.

 

A day is a long time, there's recent case law for being sanctioned for a 45 minute delay.

 

The OP can show the other side signed for the papers on 22nd December, though the court may not have filed them until after the Xmas holidays.

 

In theory the court can sanction (and I've said this) ; in practice, given the scenario the OP has stated - with the OP previously compliant and the other side failing to meet directions before : what do you expect the outcome will be regarding strike out on those grounds?.

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The OP can show the other side signed for the papers on 22nd December, though the court may not have filed them until after the Xmas holidays.

 

In theory the court can sanction (and I've said this) ; in practice, given the scenario the OP has stated - with the OP previously compliant and the other side failing to meet directions before : what do you expect the outcome will be regarding strike out on those grounds?.

 

 

Doesn't matter, as deemed service will be 28th December.

 

It could go either way at the hearing. The OP should argue the toss though and hope for a sympathetic judge, but technically they are in breach and Mitchell will apply.

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Doesn't matter, as deemed service will be 28th December.

 

It could go either way at the hearing. The OP should argue the toss though and hope for a sympathetic judge, but technically they are in breach and Mitchell will apply.

 

Mitchell (and its 2 stages), or Denton (& its 3 stages).....

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It's more than a day as the papers won't be deemed served until 28th December 2016.

 

A day is a long time, there's recent case law for being sanctioned for a 45 minute delay.

 

Pffft!!! Never happens with me... the other side always serves late, they always get away with it, too... at the last hearing, the Skeleton Argument was served on m 10 minutes before the hearing! But no sanctions for them...:-( TB

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Crikey! I thought serve and file meant the same as 'send'. So worst case scenario is that my case could be struck out for failing to file and serve within 14 days of 7th December 2016. Is there anything I should be doing now in advance of the case management hearing on 20th March 2017 to ward off strike out or do I simply wait and argue my position on 20th March 2017?

 

Also, there has been no word from the defendant since he made his strike off application on 23rd December 2016 and he has missed his deadline of 18th January 2017 to file his defence. I was ordered however to respond to his defence by 1st February 2017.

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I think we need to see their application and the Order you're referring to please.

 

Attached are redacted copies of :

General form of judgment or order dated 07-12-2016

Defendants application notice dated 23-12-2016

General form of judgment or order dated 13-01-2017

Defendant application notice dated 23-12-2016.pdf

General form of judgment or order dated 13-01-2017.pdf

General form of judgment or order dated 07-12-2016.pdf

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Attached are redacted copies of :

General form of judgment or order dated 07-12-2016

Defendants application notice dated 23-12-2016

General form of judgment or order dated 13-01-2017

 

Ok, so you should have posted the Court papers on 19th December to be deemed served by 21st December to comply with the Order.

 

I would just wait for the CMC now argue your side then.

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Ok, so you should have posted the Court papers on 19th December to be deemed served by 21st December to comply with the Order.

 

I would just wait for the CMC now argue your side then.

 

OK.

 

Should the defendant have served and filed a defence by 18th January 2017 anyway or does the defendant's strike out application dated 23rd December 2016 freeze everything until the CMC on 20th March 2017?

 

The reason that I ask is because even though I failed to serve and file in time, my breach does not cause any delay to the proceedings e.g. it was still possible for the defendant to file and serve his defence in time and for all the other orders post 18th January 2017 to be complied with in time. As the defendant has not complied with the order to file and serve his defence by 18th January 2017 this breach definitely causes a delay to the proceedings as it is not then possible for all the other orders post 18th January 2017 to be complied with in time....

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If I were the Defendant I would have filed a Defence anyway but they could get away with not as you technically breached first.

 

Do you qualify for fee remission? If yes you could make your own application to be heard at the CMC for relief from sanctions. Or you could just wait and argue at the hearing, it's up to you.

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I am litigant in person.

 

 

At a court hearing on 7th December 2016, I was ordered to file and serve my claim on the defendant within 14 days.

I posted my claim by special delivery on 21st December 2016.

I have proof of postage and delivery – which demonstrates that the defendant signed for my claim on 22nd December 2016.

 

 

On 23rd December 2016, I received an email from the Defendant, acknowledging that he had received my claim on 22nd December 2016.

 

 

He also attached an application to the court stating that my claim should be struck out on the grounds that I had failed to comply with the court order to file and serve my claim within 14 days of 7th December 2016.

 

 

I have now received a court order stating that there will be a hearing to determine whether my claim should be struck out.

This hearing is listed on 20th March 2017

(the very day on which we were originally meant to have a case management hearing on my claim).

 

In the meantime the Defendant has not filed his defence or any other papers on me.

His defence was due to be filed and served by 18th January 2017 and I was due to file a response to his defence by 25th January 2017.

 

My questions are these:

 

1. Is the Defendant correct in stating that I have failed to file and serve my claim within 14 days of 7th December 2016?

 

2. If the answer to 1 is ‘yes’, can my claim be struck out for this reason?

 

3. As the Defendant has made a strike out application, does the defendant still need to comply with the deadline for filing his defence which was 18th January 2017?

 

4. At the case management hearing on 20th March 2017, if the Defendant’s strike out application is unsuccessful (as I expect it to be) do we then proceed to having a case management hearing on the claim or will the court simply give a further deadline to the Defendant to file his defence?

 

5. Is there something that I should be doing now in response to the Defendant’s strike out application?

 

Some background:

 

The Defendant has a history of non compliance with court orders in respect of this claim and has kicked this claim around for almost a year now

– employing one spurious delaying tactic after another

such as claiming non-receipt of court papers, illness etc.

 

 

He has never filed a defence in all of this time and I strongly suspect that he has no defence to file.

 

 

I had managed to obtain judgment in default against the Defendant

– which he manged to get set aside using these spurious delaying tactics.

 

 

The key thing that I have in my favour is that I have managed to register a charging order on his property

– which the court allowed to remain even after judgment was set aside.

 

 

Is there anything I can do or say before or at the case management hearing to bring this whole sorry saga to a quick and speedy conclusion in my favour?

 

just a quick question, particularly if you are banking on the charging order. I note from the forms you have uploaded that the judge has ordered the "interim charging order" remains in place. this is not a final charging order, you must have another hearing for the interim charging order to be made final. If left at an interim charging order and the defendant sells their property, it may not have an effect.

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just a quick question, particularly if you are banking on the charging order. I note from the forms you have uploaded that the judge has ordered the "interim charging order" remains in place. this is not a final charging order, you must have another hearing for the interim charging order to be made final. If left at an interim charging order and the defendant sells their property, it may not have an effect.

 

 

An ICO has the same effect as a FCO. That is the whole point.

 

The hearing to make the ICO final has been stayed according to that Order.

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An ICO has the same effect as a FCO. That is the whole point.

 

The hearing to make the ICO final has been stayed according to that Order.

 

I agree, the OP shouldn't be distracted by if the CO is interim or final. It is the nature (and wording) of the CO that matters (restriction / if the holder of the CO gets told before sale / paid from any proceeds of sale ahead of the seller), that matters more than if the CO is interim or final.

 

I believe the OP needs instead to focus on the 3 stages of Denton, to ask the court to:

a) conclude that the OP did breach the court's direction, but the seriousness / significance of the breach is not major,

b) look at any reasons for the breach to give rise to an increased chance of relief from sanction, and

c) consider the overall circumstance (including the D's previous non-compliance with directions) making it just for the court to decline the strike-out (or to impose instead some other, lesser, sanction).

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just a quick question, particularly if you are banking on the charging order. I note from the forms you have uploaded that the judge has ordered the "interim charging order" remains in place. this is not a final charging order, you must have another hearing for the interim charging order to be made final. If left at an interim charging order and the defendant sells their property, it may not have an effect.

 

Perhaps I should have explained that I previously in 2016 got a default judgment against the defendant (because the defendant failed to serve and file a defence). I used the default judgment to get an interim charging order and then used the interim charging order to register a unilateral notice on the defendant's property. It was once I got the unliateral notice registered against the defendant's property that the defendant started to engage - alleging non receipt of my claim even though I had proof of postage and proof of delivery to his registered office. At any event, I am not banking on the ICO at all really. I am just thankful that it was decided that the ICO should remain even though the defendant achieved set aside of the default judgment. The defendant is a ltd company and it if it had not been decided that the ICO should remain, the ltd company could have just sold / transferred the property and disappeared into the sunset - leaving the company with no assets to pay the debt owed to me.

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I believe the OP needs instead to focus on the 3 stages of Denton, to ask the court to:

a) conclude that the OP did breach the court's direction, but the seriousness / significance of the breach is not major,

b) look at any reasons for the breach to give rise to an increased chance of relief from sanction, and

c) consider the overall circumstance (including the D's previous non-compliance with directions) making it just for the court to decline the strike-out (or to impose instead some other, lesser, sanction).

 

Thanks

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Do you qualify for fee remission? If yes you could make your own application to be heard at the CMC for relief from sanctions. Or you could just wait and argue at the hearing, it's up to you.

 

No unfortunately, I do not qualify for fee remission.

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An ICO has the same effect as a FCO. That is the whole point.

 

The hearing to make the ICO final has been stayed according to that Order.

 

The ICO does not have the same effect as a FCO. The ICO can be registered, however the charging Order must be made final by a Judge to have the desired effect. The registration of an ICO only indicates that there is a FCO as it is not a requirement to also register the FCO when it has been granted. The defender still has the oppertunity to appeal against the ICO being made final at the hearing so ultimately can be refused if their argument is accepted by the Judge. This is rare however can still happen. The Judge can also impose sanctions on the FCO such as not allowing the creditor the power to force the sale of the property unless the defender defaults in payments or such like.

 

essentially, if the ICO has the same effect as the FCO why would anyone ever bother with having it made final? in your case ICO has been allowed to remain in place, however you are not able to proceed with it and have a hearing for it to be made final. therefore in my opinion, if the defender was to sell the house, you would be notified under the notice you have registered, but you do not have a final charging order to ensure you get paid from the sales proceeds.

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essentially, if the ICO has the same effect as the FCO why would anyone ever bother with having it made final?

 

......, but you do not have a final charging order to ensure you get paid from the sales proceeds.

 

A FCO makes it easier / simpler to get paid from the proceeds of sale, and allows for an order for sale, which is why there is an incentive to have an ICO made into a FCO for some holders of a charging order.

 

However, "ensuring you get paid from the sale proceeds" doesn't require an FCO (otherwise anyone with an ICO would just make a quick transfer of their legal interest to evade it!).

 

CPR 73.

 

73.8, to be more precise.

 

Effect of interim order in relation to securities

 

73.8

(1) If a judgment debtor disposes of their interest in any securities while they are subject to an interim charging order which has been served on them, that disposition will not, so long as that order remains in force, be valid as against the judgment creditor.

(2) A person served under rule 73.7(7)(f) with an interim charging order relating to securities must not, unless the court gives permission—

(a) permit any transfer of any of the securities; or

(b) pay any dividend, interest or redemption payment relating to them.

(3) If a person acts in breach of paragraph (2), that person will be liable to pay to the judgment creditor—

(a) the value of the securities transferred or the amount of the payment made (as the case may be); or

(b) if less, the amount necessary to satisfy the debt in relation to which the interim charging order was made.

 

 

The property shouldn't be sold while there is an ICO on it (without the court's permission) [73.8(2)], and if they did so, the sum becomes immediately payable to the holder of the ICO [73.8(3)], while if the holder of the ICO advises the conveyancing solicitors of it, they can take 'their share' direct from the proceeds of sale [73.8(1)] ......

So, the effect of the ICO is FUNCTIONALLY the same as an FCO - (just potentially less simple to enforce if the property is sold prior to the FCO).

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in your case ICO has been allowed to remain in place, however you are not able to proceed with it and have a hearing for it to be made final. therefore in my opinion, if the defender was to sell the house, you would be notified under the notice you have registered, but you do not have a final charging order to ensure you get paid from the sales proceeds.

 

Well now you have thoroughly depressed me. I thought that the function of the unilateral notice was to prevent the defendant disposing of / selling the property. Am I wrong about this?

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Well now you have thoroughly depressed me. I thought that the function of the unilateral notice was to prevent the defendant disposing of / selling the property. Am I wrong about this?

 

I don't think you are. I've posted about CPR 73.8

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part73

 

 

They (shouldn't, but) can dispose of the property, but face consequences as a result, unless they do so with the court's permission.

 

Lets see what the contributor comes back with as to why our understanding is wrong .......

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