appeal small claims court

[cinimody]

Received a small claims court summons 4 or 5 months ago made out in my own name instead of the business name for a totally ficticious invoice ,

we responded with a fairly robust defence.

 

Receieved a reply from the court asking the claimant to send us by a named date and time a clearly listed claim, in numbered paragraphs explaining each point of the claim, and we had approx two weeks after this date to respond to the court and the claimant.

 

The date came and went and we never received the paperwork from the claimant, we sent a letter by recorded delivery to both the court and the claimant stating that the deadline for us to reply was rapidly approaching and we had not recieved the paperwork so how could we answer, no reply was received from either party.

 

we heard nothing else at all, so approx 10 days before the hearing we again wrote to the court and the claimant stating we had not received the claim particulars so how can we be expected to defend ourselves. again no reply.

 

The day before the hearing we called the court and they seemed quite happy , they confirmed that both letters had been received and the judge would deal with it in the court.

 

We attended court this morning asking for the paperwork to be given to us and to ask for time to review it so we could answer all the points validly.

To be told the letters may have been received by the court but they wouldnt have been read until this morning......

we had plenty of time to prepare our case and that they would give us a short time to read the claim which they did. ( about 20 mins...)

 

We had a valid argument for every question on there,

however, as we did not know the questions that were coming

we could not provide any paperwork to back these up

( we can provide the paperwork as we have it all)

as how could we possibly know what was coming and what to prepare for,

yet the claimant could provide his paperwork ,

which clearly he knew what to bring as he had filled the claim.

 

Much to our astonishment they upheld the claims

whilst we had good arguments we didnt have the necessary paperwork to back these up...

we were then told that the court had followed correct procedure

and we had to ask the same judge for permission to appeal,

he refused this permission...

 

The claim revolves around some car parts that were ordered in mid 2014 by a company that no longer trades,

the money was requested as cash,

which was withdrawn from the company bank account and paid to the claimant, the sum of £2000.

 

The claim is that the parts were never paid for, and were ordered by me personally and not the business

( now some 3 years later with zero chasing in between)

and that the parts were special one offs and as such were £6000 not the £2000 paid.

 

Judgement was found against me personally for the sum of £6000 plus costs of some £1200 making £7200

plus the fact we had already paid £2000 so now im facing owning something that cost £2000 yet cost me £9200.

 

To say I fell totally failed by our legal system today is an understatement.

 

We also have xmas break coming up so its hard to gather information together.

 

we were told I have 14 days to pay the order and 21 days to appeal to a higher court,

but even if we appeal the order stands after 14 days so it can be enforced,

how is this possible, this realistically means they can send a bailiff round in 2 weeks time?

 

Also I simply do not have the money to pay this,

I earn very little and have no assets,

what is a lowest payment I can make if I have to,

I currently earn around £1000 a month, 2 kids, mortgage etc etc

 

Help....

[AndyOrch]

Was the claim reserved in your Business Name ? Or the name amended on the N1 ?

 

Regards

 

Andy

[cinimody]

claim was made against myself personally ( plus my partner) the claimant admitted he had never spoken to my partner so that part of the claim was struck out

[AndyOrch]

Who was the invoice made out to...your Business name or your name ?

 

Thread moved to General Legal Issues Forum.

[BankFodder]

I think that you need to post the claim form and also the defence in pdf format please

[cinimody]

Invoice was made out to me personally in 2017 for work carried out in 2014 that was paid for by a business that no longer trades,

 

we cannot get access quickly to the paperwork for that business,

not in the 20 mins we had to read through the claim.

 

The main points are,

a business transaction was carried out between 2 businesses

I could not produce paperwork

it was decided to be a personal transaction.

 

The main point is we did not receive the full claim,

asked both the courts and claimant in writing twice ( recorded delivery) with no response, so attended court to ask for time to go through and review the claim, which was refused, how can we possibly defend ourselves when we didnt know what was on the claim. Whatever the point in law this is morally wrong.

 

Next it has been made against me personally and I do not have the money,

I dont know how to deal with this,

I earn very little currently and have no assets,

 

I had a business go down 2 yrs ago and have had to sell everything I owned to keep my head above water.

Now Im going to sink for a totally fabricated fraudulent claim,

surely there must be some way to go back against this.

 

How do I reach a payment agreement?

I am happy to set up a small payment agreement and pay this while I try and fight it, but dont know how

 

The point of this is we recieved an initial claim form and submitted a defence to this,

the claimant was asked to submit a `much more thorough claim` we never managed to see this claim until in court so couldnt offer a paper defence.

[BankFodder]

The point of this is we recieved an initial claim form and submitted a defence to this, the claimant was asked to submit a `much more thorough claim` we never managed to see this claim until in court so couldnt offer a paper defence.

Thanks for this but please will you understand that it is important that you posted on the documents that you have in pdf format. This means at least the claim form and the defence and if there was a subsequent defence than a copy of that as well. If you don't have access to them then you will have to ask the court.

I don't know what advice Andrew is going to give you when he gets on today but if you want to appeal then at the very least you will have to have these things necessary and you may also have to get a transcript of at least the judgement

If you want to challenge the judges refusal to allow you to appeal then you only have a short time scale to do this

[AndyOrch]

" How do I reach a payment agreement? I am happy to set up a small payment agreement and pay this while I try and fight it, but dont know how "

 

You could in the interim submit an N245 and vary the forthwith to a affordable monthly payment..this will allow time for you to access your position or submit an appeal.

 

https://www.consumeractiongroup.co.uk/forum/showthread.php?406098-LEGAL-N245-Application-for-suspension-vary-an-order-**Correct-as-at-Feb-2017**

 

In the meantime there is a lot of confusion with regards to your thread....if you could scan and redact and upload the claim form...your defence...witness statements.....disclosures.

 

The problem is that before a claim gets to hearing.....there is a process that both parties must comply with which includes submitting Direction Questionnaires then allocation to your local county court and both parties submitting witness statements and evidence (disclosure of documents).

 

To get to the actual hearing date all the above would have to be complied with by both parties so all parties are prepared and ready for the hearing.....I really cant see how you can be ambushed on the day with fresh particulars of claim.....that you was not prepared for.

 

If you could perhaps fill in the history along the way and state what part of the process either party did not comply with.

 

Regards

 

Andy

[Haunter]

You can apply for a stay of execution in your Appellant's notice.

 

Sounds like the judgment is an irregular one.

 

Also appears that your art.6 ECHR were violated as the proper process has not been followed.

 

In your N164 (Appellants notice), you should tick the box where it says does your claim involve any human rights issues.

 

Haunter

[BazzaS]

Whoa!

 

Introducing a human rights element at this stage is unnecessary, and can only complicate things.

It also may move things away from small claims territory, so may have significant cost implications.

 

Your right to a fair trial hasn’t been infringed while you still have a redress for any error in law of the Court, so your ability to appeal pretty much rules out an Art 6 approach at the moment.

[AndyOrch]

Cant see any grounds of appeal until the OP comes back and clarifies points raised to my previous post.

[Haunter]

The op has said that the claimant did not comply with the court’s order to file and serve his particularised particulars of claim (POC).

 

The op has said that the claimant served his particularised POC on him at the courthouse on the day of the trial/hearing 20 minutes before it took place.

 

Rules 1.1 & 1.2 of the overriding objective of the CPR have been contravened and the op’s civil rights under art.6 ECHR has been violated.

 

There is a specific provision in an Appellants notice (both N161 & N164) for an appellant to raise a human rights issue.

 

An appellant has the right to rely upon his Convention Rights (ECHR) in any proceedings, this right is provided by s.7(1)(b) Human Rights Act 1998, but a remedy for a violation of a Convention Right by a judicial act can only be exercised by way of an appeal, see s.9(1)(a) Human Rights Act 1998.

 

It would be very helpful if the op would post up the paragraph of the order directing the claimant to file and serve his particularised POC.

 

Requesting a stay of execution in an Appellants notice will not cost any appellant any extra money, the fee for the Appellants notice remains the same, whereas making an application on a N244 form for a stay of execution will cost up to £255 just for the court fee.

 

Haunter

[AndyOrch]

But you dont leave it until the day of hearing to challenge it...hence the process I referred to pre hearing...plenty of time was allowed to to challenge the claimant for none compliance of an Order before trial.

[Haunter]

The judge has not actively managed the case in accordance with the overriding objective of the CPR, r.1.1, and r.1.2.

 

The op did send communications to the court informing of the claimant's non-compliance with the order well in advance of the trial/hearing, the court disregarded it.

 

The op is not at fault and the judgment against him is an irregular one and cannot be allowed to stand.

 

Need to know the exact wording of the court order, all paragraphs verbatim.

 

Haunter

[cinimody]

Thanks for this.

We did try to challenge by sending recorded letters to claimant and court on 2 separate occasions ( both were received)

also telephoning the court, how else we are supposed to get the message to them I have no idea,

 

the Judge said that because the claimant had proof of postage that was called `good order` so we were deemed to have received the paperwork.

If so why would we have written to say we hadnt,

 

The claimant did say he could provide proof of delivery but this was never provided, indeed on the day any paperwork would have been received we were actually closed for 5 days and we dont have a letter box.

 

I cant provide details of court order yet as I am still awaiting it through the post.........

I have filled in form N245 or similar requesting instalments,

 

my biggest concern is this not getting processed due to Christmas and a Bailiff turning up on Jan 3rd,

 

Is there anything else I need to do to make sure bailiffs dont turn up,

 

We are trying to deal with this while we try to find a decent Solicitor to consider an appeal.

Edited December 23, 2017 by cinimody

[Haunter]

The court should be open on the 27th, 28th & 29th Dec.

 

Can you remember what the order said about the claimant serving his particularised POC?

 

The claimant may need to go back to the court to enforce the judgment against you before any bailiffs are sent to your door.

 

Try not to worry too much at the moment.

 

As regards your N244 application, what order are you seeking from the court?

 

Have you started drafting your Appellants notice?

 

Haunter

[cinimody]

Thanks for this,

at the minute I'm more concerned with making sure a bailiff doesn't turn up at the door

which is why we have sent in form N244 as we haven't received anything from the court yet due to xmas holidays.

 

I did ring the court to say n244 had been sent and just want to make sure it's dealt with,

she said they were currently 16 days behind with paperwork,

 

does this mean the claimant can 'push through ' a bailiff as we have 14 days for the order to be paid ,

which takes us to 2nd Jan, ,

is it possible they could send someone out as they haven't processed our paperwork?

 

I have made an offer to pay a very small monthly amount as that is all I can spare at min,

 

Regarding appeal it's typical that this is happening while its xmas and my solicitor is away,

really need to seek advice on this but slightly difficult without paperwork from court......

 

Am I correct by offering a payment plan or is that in somehow admitting guilt ,

I'm just trying to sort it out while everybody is closed,

the CAB were adamant that nothing would happen re bailiffs as long as court had received N244.

 

Is this correct

[Haunter]

Firstly, Christmas day, Boxing Day and New Years Day are all holidays that are not deemed to be business days, so you can add on those 3 days.

 

Your N244 application might not be dealt with quick enough and you could end up being out of time to appeal, which would mean you would have to seek relief from sanctions in your Appellants notice and for an extension of time for appealing.

 

Did you make an offer to pay without any admission of liability?

 

You cannot rely on CAB as a guarantee that nothing will happen, CAB are not an authority.

 

Haunter

[Bazooka Boo]

You cannot rely on CAB as a guarantee that nothing will happen, CAB are not an authority.

 

You cannot rely on CAB (full stop).

[dx100uk]

Too right!!

[AndyOrch]

Have you submitted an N244 or N245...you state both in your previous posts?

 

"I have filled in form N245 or similar requesting installments, my biggest concern is this not getting processed due to Christmas and a Bailiff turning up on Jan 3rd,"

 

" I did ring the court to say N244 had been sent and just want to make sure it's dealt with,

she said they were currently 16 days behind with paperwork, "

 

Andy

[cinimody]

No I completely understand about CAB , I have made an offer to pay and my main point this week is to make sure Bailiffs don’t get involved , th guy that took me to court is pretty switched on and I’m sure he will be doing what he can to cause me grief once the 14 days are up,

 

What else do I need to do to stop bailiffs as I can’t pay in full at min, surely the bailiffs will write to me at some point , before attending? Can someone enforce the order when Time is up if I have lodged paperwork with court but they are behind so have t processed it before timeis up? I put in the form within 24 hours of court judgement

 

I don’t have any money in bank or assets, I’m driving someone else’s a car at nin as my own ( which is on finance) is currently broken, so I’m making a finance payment on a car I can’t afford to fix......

I do have a mortgage and half own my house with my partner.

Edited December 27, 2017 by cinimody

[dx100uk]

if the car is on finance why are you paying to repair it?

start a new thread in the motor industry section tell us the story.

 

dx

[cinimody]

Have just received a ‘receipt for counter payment ‘ for the case today which is the for the fee for making a payment offer.

Does this have any significance to anything at all?

[Haunter]

As you jointly own your home, the claimant could obtain a charging order against your interest on your home.

 

Have you asked the court to re-determine the amount you have to pay and to set it at monthly payments?

 

I think the first thing you should have done is lodge an appeal.

 

Unless the court puts a stay of execution on the order, the claimant can take whatever legal action is available to him to take.

 

You still have time to lodge an appeal.

 

Haunter