Business Internet Company claimform - suing for cancelling contract***Struck Out***

[maggie60]

I'll ring the court at 4.05pm on Thursday

[dx100uk]

before 4 I think you'll find they close at 4

[maggie60]

thanks dx

[maggie60]

Sending off 11 pages by first class recorded delivery today. Emailing claimant copies at 3.30pm Thursday.

 

 

Can I, on behalf on the defendant, check on Friday morning whether the claimant has paid the £80 fee and filed a witness statement?

 

 

If they haven't OR have failed to provide the defendants copies of their witness statement, what is the correct procedure to request it be struck out?

[dx100uk]

tell the court they've failed to comply

[maggie60]

All docs (12 [pages) received by the court a day early today.

 

 

Sending the claimant his copies by email tomorrow. Does it matter if the witness statement they receives is not signed - they are an IT company and I know how easy it is to copy signatures plus it saves the defendant scanning the WS?

[AndyOrch]

No ...as long as the courts copies are signed.

[maggie60]

Opening hours

 

 

• Court building open: Monday to Friday 8am to 5pm
  
• County Court enquiries counter: 10am to 2pm
  

Email

 

Enquiries:

[email protected]

 

Children cases:

[email protected]

 

Bailiffs:

[email protected]

 

County Court listing:

[email protected]

 

Filing and records:

[email protected]

 

Witness service:

[email protected]

 

Small claims mediation:

[email protected]

 

Crown Court:

[email protected]

 

 

No sight of any witness statement YET.

 

 

If we receive nothing by 4pm, the court is open until 5pm. Can we email the enquiries and filing and records email addresses saying: "As the claimant has failed to provide us with a copy of their witness statements and other documents they intend to produce at the hearing within the court's deadline. can we kindly request that their claim be struck out."

[AndyOrch]

You could but the court would most probably ignore...they do allow a little leniency...I would allow at least a week.

 

Andy

[maggie60]

OK Andy, is email ok or letter to the court better?

 

 

Do they have to submit any documents or WS, in theory they could give all the information verbally at the hearing?

[AndyOrch]

Either as long as it gets the attention of the court....evidence must be filed and served...if they fail they are not allowed to rely on any written evidence and may be ordered to only give verbal evidence.

[maggie60]

"Unless the Claimant does by 4.00pm on the 1/2/2018 pay to the court the trial fee of £80.00 or file a properly completed application (i.e one which provides all the required information in the manner requested) for help with fees, then the claim [counterclaim] will be struck out with effect from 1/2/18 without further order/and, unless the court orders otherwise, you will also be liable for the costs which the defendant has incurred."

 

 

We have heard nothing from the claimant and I am hoping they did not file any paperwork or pay the fee.

 

The above paragraph it will now be struck out. Is that correct?

[AndyOrch]

Yes...but you need to check to see if they have paid or not...if the court confirms not then ask them to strike out as per the court directions dated xxxxxxxx

[BazzaS]

It will be struck out:

a) if they haven’t complied (if they complied, but it is that the court’s correspondence hasn’t yet been reviewed, they won’t be penalised for that)

b) if they also haven’t complied by when the court reviews it (if they have complied by then, it is at the judge’s discretion of what is ‘just’).

[maggie60]

Tried calling the Civil Section to find out at 4.15pm, but no one answering the phone it that section.

[maggie60]

I gave the court a ring and it appears they haven’t received anything from Shine yet, but they have had problems with their card machine and won’t know if Shine have paid the hearing fee until the middle of next week.

 

The order states that if the claimant fails to pay the fee, the claim will be struck out and the claimants will be liable for any costs that the defendant has incurred.

 

What would be reasonable costs that the defendant can claim for, if any?

[BazzaS]

The order states that if the claimant fails to pay the fee, the claim will be struck out and the claimants will be liable for any costs that the defendant has incurred. What would be reasonable costs that the defendant can claim for, if any?

 

I don’t know, since only you know what costs you’ve incurred....

 

Examples to consider include:

Your time (at the litigant in person rate, for time reasonably spent),

Did you have to pay to make any applications to the court?,

Postage / stationery costs.

[maggie60]

Sorry just reread your post - current Litigant is person rate is £17?

[honeybee13]

I thought it was £19, Maggie. Others will confirm, hopefully.

 

HB

[maggie60]

Sorry Honeybee, you are correct, shame barristers aren't capped at that rate.

 

 

Signed for post etc. are around £5, but I have spent 30 hours+ on research, preparing emails, defences, evidenceetc for this and not even a bottle of Lidl wine from the defendant. Can they claim 20 of these hours x £19 per hour for me? Or would this appear unreasonably long?

[maggie60]

Checked with the court and claimant's "bundle" was received on 31 January, but still nothing received by the defendant. Court says we should email and request directions from the judge.

 

 

Can anyone recommend the correct wording for this request?

 

 

Also, when requesting the court etc. we were asked to forward a copy to the claimant, but they did not reciprocate.

[SuperVillain]

Sorry Honeybee, you are correct, shame barristers aren't capped at that rate.

 

Signed for post etc. are around £5, but I have spent 30 hours+ on research, preparing emails, defences, evidenceetc for this and not even a bottle of Lidl wine from the defendant. Can they claim 20 of these hours x £19 per hour for me? Or would this appear unreasonably long?

 

Claim what you want. When it comes to costs, if you don't ask you don't get. All you can do is submit a schedule (the best format is Court Form N260), make sure you send it to the other side and to the Court no less than 3 days before the hearing.

 

But bear in mind this is on the small claims track, so ordinarily as the Defendant no costs will be awarded to you even if you're successful, unless you can show the Claimant's conduct was unreasonable during the litigation. Even then it's heavily at the discretion of the Judge. So have they been unreasonable in any way?

 

If you win, the Defendant is usually able to recover reasonable travel expenses or loss of earnings for attending the hearing.

 

My suggestion - ask but don't expect to receive anything.

[SuperVillain]

And regarding the Claimant's evidence, the trial is in March. I would suggest writing to the Claimant first (ideally by email) and asking them to send their witness statement and documents as you have not received this (and therefore they have breached the Court order? - is that correct?). Tell them you'll give them till the end of the week to email these across, after which you will be writing to the Court.

 

What does the Directions Order say word for word about exchanging witness statements? Usually it'll say something like the parties will send to each other and to the Court, all documents upon which they wish to rely, on a specified date. Then it'll go on to say those documents should include witness statements. And then something about if a witness statement isn't served in accordance with the order, the witness may not be permitted to give oral evidence in Court. The last bit is crucial.

 

So if you don't get them from the other side by the end of the week, write to the Court, but I personally wouldn't request further directions. I would just inform the Court that the Claimant has not served its witness evidence on the Defendant and that they have breached the Court order, and should not be permitted to give oral evidence. And send a copy of that to the Claimant.

 

If you ask the Court to make further directions (which would presumably give them a new deadline to send you the statements/documents), you're just giving the Claimant a free pass on breaching the Court order.

 

That's my view at least.

[maggie60]

Hi, please see attachments of the court order.

 

I see your point about giving them the opportunity to defer the date,

 

but the defendants have already emailed the court to say the claimant hadn't complied with instructions and asked for their instructions.

[SuperVillain]

Did they write to the Claimant, regarding their non-compliance? I mean with the best will in the world the postal system is not infallible. I've had documents go missing etc. The Claimant might well be under the impression all is fine, and it's been sent (as you know the Court have received it so the likelihood that they purposefully did not send it to the Defendant is low).

 

Realistically, the only potential prejudice the Defendant could suffer at this stage is that the other side sees their witness statement and uses it to draft their own. But the other side's documents were with the court on 31st so that is unlikely to have happened. Obviously as you get closer to the trial, you have less time to examine the Claimant's evidence and less time to prepare things like questions/cross examination etc.

 

With the trial in March, I think you would look very reasonable to the Judge hearing the case if you gave them an opportunity to send the documents to you. Then, if after this you still haven't received them, the Defendant will ask the Judge not to consider the Claimant's witness evidence as it hasn't been served in accordance with Paragraph 3© of the Directions order, and despite a further request to serve.

 

If you write to Court asking for further directions, the Judge will likely order a new date for the Claimant to serve the documents (as they have been filed at Court). A Judge is unlikely to strike out the Claimant's witness evidence. They'll likely comply with this Order to serve again. Depending when the Judge gets round to looking at it, the trial date may be moved back to allow you time to consider the papers after the new date of service.

 

So tactically, in my view the better option is to give them an opportunity to send it again. If they do within the time you set (give them till say 4pm Monday), you're not at a disadvantage. Failing this just raise it at Court and the Judge will deal how they sees fit. They may use their discretion to strike out the witness evidence, they may adjourn the hearing to another date, they may just let it slide and adjourn for an hour or so on the morning for you to go through it.