Part 8 to Part 7 - i owe over 35k in unsecured debt and have no assets,

[multitrackhelp]

Hi

 

If a case has been issued using part 8, but a court rules part 8 is not suitable and that it should go onto part 7. The party has paid a fee on Part 8 that is substantially lower then it would be on a part 7 claim (4.5% of the amount claimed as its a large amount)

 

Should the court be asked that the claimant pay the correct fee. ( An order has been produced which makes no mention of the fee)

 

Is it worth bringing it to the courts attention, ?

 

Any suggestions welcome

[BankFodder]

I would guess that you are the defendant in a case where the claimant is a litigant in person and has made some technical error. You are hoping that a technical reason may derail him.

 

If I'm correct, then technically I suppose that there might be a basis for doing what you suggest. However, it would probably take an application notice to the court to get them to make a decision on it – and that itself will take a load of time and trouble and also a fee. Even if the claimant is then ordered to pay the correct fee, it won't make any difference to the merits of your defence or to the eventual outcome of the case.

 

I think you would be best off just getting on with it and showing goodwill and reasonable behaviour all the way through. Later on, if you can say that you have in some way been disadvantaged by the claimant's poor standard of litigation or unreasonable behaviour then you may be able to argue for some forbearance in respect of costs or part of the costs in the event that you lose the case.

[multitrackhelp]

I simply want to force him to pay the full fee .

Will be an extra 1k which may make him think twice

[BankFodder]

In that case please will you tell us what has happened so far in terms of the issue of papers. Has it now been changed to a part seven application? Don't forget that if he pays £1000 and you lose the case then it will be you who has to pay the 1000. If he gets away with paying the reduced some then your exposure is far less in the event that you get a judgement against you. In other words, it's a double-bladed sword

[multitrackhelp]

In that case please will you tell us what has happened so far in terms of the issue of papers. Has it now been changed to a part seven application? Don't forget that if he pays £1000 and you lose the case then it will be you who has to pay the 1000. If he gets away with paying the reduced some then your exposure is far less in the event that you get a judgement against you. In other words, it's a double-bladed sword

 

Hi i will be going bankrupt in any case as i owe over 35k in unsecured debt and have no assets,

Yes i received an order from the judge yesterday morning saying it was not suitable for a part 8 claim and should continue as if it had been on Part 7

So with the above i am not bothered about what the losing amount is,. the hearing fee as it will be on multi track is 1k

[AndyOrch]

The claimant will be ordered to pay the difference by the court.

 

 

Andy

[multitrackhelp]

The claimant will be ordered to pay the difference by the court.

 

 

Andy

 

Will I need to bring it to the courts attention

[multitrackhelp]

.................

[SuperVillain]

I would suggest it's a matter for the Court, and nothing you need to kick them into doing.

[multitrackhelp]

The claimant will be ordered to pay the difference by the court.

 

 

Andy

 

The initial directions from the judge don't mention this........

 

I have read on tinterweb a case where the claimant was instructed to pay the correct fee with directions questions. I guess I don't want the chance of this happening to be missed. Of course the judge might accept there is no need for a further fee to be paid

Edited February 22, 2018 by catandmouse1

[BazzaS]

I guess I don't want the chance of this happening to be missed.

 

Why?

 

If you lose the case the other side won’t be recovering it from you, you’ve made that clear.

If you win : the other side won’t be recovering it from you.

 

So, your aim is just to put them to more expense and difficulty, then?

[multitrackhelp]

Why?

 

If you lose the case the other side won’t be recovering it from you, you’ve made that clear.

If you win : the other side won’t be recovering it from you.

 

So, your aim is just to put them to more expense and difficulty, then?

 

Yes it's a fair strategy. I want to put them to as much expense and difficulty as possible.

[AndyOrch]

The initial directions from the judge don't mention this........

 

I have read on tinterweb a case where the claimant was instructed to pay the correct fee with directions questions. I guess I don't want the chance of this happening to be missed. Of course the judge might accept there is no need for a further fee to be paid

 

Claims issued using the wrong process are not covered in directions...directions are in connection of how the claim proceeds...the question of changing from Part 8 to part 7 which may involve reserving the claim is an issue between the claimant and the court...not the defendant which your not privy to.....and I assure you the court will get the full fee for the correction.

 

Better you concentrate on your aspects of the claim.....defending as a defendant...that is all that is of concern to you.......not what the court is dealing with the claimant.

 

 

Andy

[multitrackhelp]

Claims issued using the wrong process are not covered in directions...directions are in connection of how the claim proceeds...the question of changing from Part 8 to part 7 which may involve reserving the claim is an issue between the claimant and the court...not the defendant which your not privy to.....and I assure you the court will get the full fee for the correction.

 

Better you concentrate on your aspects of the claim.....defending as a defendant...that is all that is of concern to you.......not what the court is dealing with the claimant.

 

 

Andy

 

Thank you Andy for that succinct reply. Appreciated. I think I will leave it at that

[multitrackhelp]

Hi

 

I am just in the process of writing a defence to a claim. As you are aware you dont include evidence with the actual defence submission. I will be providing a fair bit of evidence in the defence of a claim against me.

 

Should I at this stage in the defence statement when referring to evidence list the evidence as say "in exhibit 1 i will show the claimant to be untruthful", or should i be more generic and say the evidence I shall produce will show the claimant to be untruthful

 

Which sounds better and which would be easier for the court to follow?

[AndyOrch]

You dont include or refer to evidence/exhibits within an initial defence...that comes later at disclosure and witness statements stage.

 

 

Andy

[multitrackhelp]

Andy, In this case i believe i have to reference the fact i have certain items which will prove the claimant is effect lying, but i will edit the defence to remove references to any material i have except where it is essential

[AndyOrch]

Is this in connection to your Part 8 /7 thread ?

[multitrackhelp]

Yes but it's a separate issue. However I have taken your advice on board. Thanks

[AndyOrch]

Yes but it's a separate issue. However I have taken your advice on board. Thanks

 

Threads merged...please keep to one thread per issue..otherwise it splinters the advice you will receive......

 

Andy

[steampowered]

i have certain items which will prove the claimant is effect lying

 

You should keep your defence concise. Stick to the facts.

 

For example, if the Claimant states that an event happened on 1st February 2018, and it actually happened on 1st January 2018, an appropriate response would be: 'Paragraph xxx of the Particulars of Claim is denied. The event happened on 1st January 2018'.

 

NOT 'The Claimant is lying.'

 

There is no need to start making accusations of someone 'lying'. It is a waste of time. It is almost impossible to prove that someone is lying, as opposed to simply being mistaken. Even if you did manage to prove it, there is very little benefit. The courts are not the thought police - they are there to decide facts.

[multitrackhelp]

I wouldn't use the term lying . The term falsehood is more appropriate.

 

The point being if a claimaint can be shown with evidence to be have misled the court then this should be driven home

Edited March 11, 2018 by catandmouse1

[steampowered]

I wouldn't use the term lying . The term falsehood is more appropriate.

 

The point being if a claimaint can be shown with evidence to be have misled the court then this should be driven home

 

To win a case, you need to focus on proving what the facts are. Once you have convinced the judge of the facts - and assuming that the facts sink the Claimant's claim - you win the case.

 

Once the judge has worked out the facts, it is easy for the judge to draw his or her own conclusions on the matters put forward in the Claimant's particulars of claim. I do not think alleging falsehood/dishonesty in the Defence has any real benefit.

 

The best defences tend to be very simple and clear. Trying to prove that someone is deliberately spouting falsehoods leads you down a rabbithole and makes your Defence much more complicated than it needs to be. It is almost impossible to prove someone's state of mind in any event.

 

Have a read of the CPR which explains what the courts want to go into the Defence: https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part16#16.5

[BazzaS]

I wouldn't use the term lying . The term falsehood is more appropriate.

 

The point being if a claimaint can be shown with evidence to be have misled the court then this should be driven home

 

 

It depends how much time and effort you want to put in. Mind you, it seems what happens with this case won't affect the overall outcome for you, since:

 

 

Hi i will be going bankrupt in any case as i owe over 35k in unsecured debt and have no assets,

Yes i received an order from the judge yesterday morning saying it was not suitable for a part 8 claim and should continue as if it had been on Part 7

So with the above i am not bothered about what the losing amount is,. the hearing fee as it will be on multi track is 1k

 

Why?

 

If you lose the case the other side won’t be recovering it from you, you’ve made that clear.

If you win : the other side won’t be recovering it from you.

 

So, your aim is just to put them to more expense and difficulty, then?

 

Yes it's a fair strategy. I want to put them to as much expense and difficulty as possible.

 

So, if (win or loss of this case) you are going bankrupt, then it doesn't really matter if you win or lose this case (will having a CCJ make that much difference to you, surely the bankruptcy will have the same effect on your credit rating'?).

 

So, if you want to be vindictive and put the claimant to lots of effort and expense, go ahead. The 'cost' to you will be your time and effort.

I'm just wondering why you expect similar time and effort from CAG'ers, where their time and effort won't make a difference (in the end!) for you, just make a difference to how much unnecessary time, expense and effort the claimant is put to.....

 

tl:dr is : surely the point of CAG is to make a difference, and there isn't a difference for the OP in the end, just CAG's effort making things worse for the claimant, and is that what CAG is meant for?.

Has the claimant behaved that badly?

[mrtibbs1999]

It depends how much time and effort you want to put in. Mind you, it seems what happens with this case won't affect the overall outcome for you, since:

 

 

 

 

 

 

 

 

So, if (win or loss of this case) you are going bankrupt, then it doesn't really matter if you win or lose this case (will having a CCJ make that much difference to you, surely the bankruptcy will have the same effect on your credit rating'?).

 

So, if you want to be vindictive and put the claimant to lots of effort and expense, go ahead. The 'cost' to you will be your time and effort.

I'm just wondering why you expect similar time and effort from CAG'ers, where their time and effort won't make a difference (in the end!) for you, just make a difference to how much unnecessary time, expense and effort the claimant is put to.....

 

tl:dr is : surely the point of CAG is to make a difference, and there isn't a difference for the OP in the end, just CAG's effort making things worse for the claimant, and is that what CAG is meant for?.

Has the claimant behaved that badly?

 

Also, your conduct leading up to a bankruptcy is something that the receiver will take into account. You need to be careful not to get yourself any type of punitive order that may make the bankruptcy more restrictive, or even punitive.