Revisited civil claim ***Claim Discontinued ***

[bha100]

Just over a year ago friend of mine defended civil recovery claim for shoplifting using the defense that she was under 18, it was stayed by the judge at the time, now she is 18 an order from the court has arrived stating that they had received a letter from the claimants solicitor and it has been ordered to either submit a defense with civil procedure rule 16, don't submit and judgment will default or request to set aside.

 

1) Is that the correct procedure to just send a letter to the court and ask the judge to make the order

 

2) can i ask to see a copy of said letter?

 

3) what court form shall i use to mount the defense

 

Thanks

[dx100uk]

who bought the court claim?

 

dx

[silverfox1961]

Hi,

I think we need to see the paperwork received. Can you cover up all identifiable information then upload a copy of the letter.

 

I find it difficult to believe that a court case was actually started. Do you have any paperwork from that case or was it all done by letter?

 

Who are the solicitors? DWF by any chance? Could be RLP trying it on

[bha100]

100 % genuine, i have seen both the original order and the new one, the solicitor is freeths

Edited April 27, 2018 by dx100uk
quote

[dx100uk]

whos the claimant please and what are the particulars of claim.

[ericsbrother]

the other thing we will need to know is were any of the goods stolen not recovered or recovered in a state that made them unsellable? Ie: were things taken out of their wrappers?

 

The now famous Oxford case was based around recovering costs of store detectives and such and that is why it was thrown out (along with the lack of locus standi for anyone other than the store)

 

. If this is about recovering salaries then it will be a pushover, if it is for damaged goods then we need a breakdown shown in the particulars of claim.

 

If they are not there then the claim will most likely fall anyway.

[bha100]

The goods stolen were not recovered, the bulk of the claim is for what they call case costs, in the particulars of claim, goods total £50, seek to recover £200 for case costs and they don't offer any more detail on that, then the usual they want interest on top, so it is essentially trying to claim money for what they call case costs

[dx100uk]

Post 5 please!!!

[ericsbrother]

Then they will lose the bulk of their claim the only amount they can legally recover is the actual cost to them of the goods stolen or damaged. So, for example if you steal a kilo of bananas that retail for £1 the amount they can claim is what the bananas cost them so let us say 65p. they cant claim for lost expected profit.

 

However, as with all of these dodgy claims the solicitors involved hope that the defendant doesnt know this and so tries it on and hopes that the defendant settles before court or doesnt raise the inconvenient truth in their defence.

 

There is no contract between the defendant and the palintiff that would cover case costs which would apply if for example a consumer credit agreement had been signed. Again they know this but you can bet that the soliciotrs are working on this in the expectation they get apid for their time as a result of the outcome rather than charging the store £200 up front to recover £50 because the store wouldnt countenance that for one moment.

 

So, as part of the defence your friend should send a CPR 31.14 request for documents to request a copy of the invoice from the supplier to the store for the goods that were not recovered to ascertain the true loss to the store

 

The goods stolen were not recovered, the bulk of the claim is for what they call case costs, in the particulars of claim, goods total £50, seek to recover £200 for case costs and they don't offer any more detail on that, then the usual they want interest on top, so it is essentially trying to claim money for what they call case costs

Edited April 28, 2018 by honeybee13
Paras

[bha100]

I agree it's a system that encourages them to make false claims in the hope that you either just pay up or win by default if you ignore.

 

The judge has allowed them to essentially reactivate the claim by simply accepting a letter sent by the claimants solicitor to the court, i have no idea what was said in the letter, surely that can not be the correct procedure and it's not very transparent.

Edited April 29, 2018 by dx100uk
quote

[ericsbrother]

You still havent named the solicitor or client. It is important to how this progressess so do so.

 

so first thing first, your friend needs to acknowledge the claim and then say they intend to defend in full.

they then need to submit a defence that will include a statement that they havent followed the correct procedures and that the claimant has not provided any correspondence as a pre action procedure nor evidence as to how the value of the claim was arrived at bearing in mind the "Oxford case" has determined that all of the costs claimed here cannot be recovered.

 

It is requested that the claim be dismissed under CPR 16.4. In any case it is denied that any monies are owed.

 

the friend then needs to read up on that famous case and quote it and all of the relevant parts in detail.

Edited April 30, 2018 by honeybee13
Paras

[bha100]

Solicitor named in post 4.

 

No need to acknowledge claim, all the procedures were followed at the time of the original claim and the defence submitted was that she was under 18, and it was stayed,

 

now a year later and she is over 18 the solicitor has written to the court and another judge has made a new order that she must

1) defend it

2) do nothing and it be entered against her by default or

3) apply to get it set aside

Edited April 30, 2018 by dx100uk
spacing

[dx100uk]

solicitor is immaterial who is the CLAIMANT

[bha100]

After plenty of bedtime reading i have the answer to question 1 in my 1st post, as i understand no application was was made (Practice Form N244) the court relied on a letter from the claimants solicitor, so no application notice was served

 

 

 

PART 3

THE COURT'S CASE MANAGEMENT POWERS

 

Court’s power to make order of its own initiative

3.3.—(1) Except where a rule or some other enactment provides otherwise, the court may exercise

its powers on an application or of its own initiative.

(Part 23 sets out the procedure for making an application)

 

PART 23

GENERAL RULES ABOUT APPLICATIONS FOR COURT ORDERS

 

Application notice to be filed

23.3.—(1) The general rule is that an applicant must file an application notice.

(2) An applicant may make an application without filing an application notice if—

(a) this is permitted by a rule or practice direction; or

(b) the court dispenses with the requirement for an application notice.

 

Notice of an application

23.4.—(1) The general rule is that a copy of the application notice must be served on each

respondent.

(2) An application may be made without serving a copy of the application notice if this is

permitted by—

(a) a rule;

(b) a practice direction; or

© a court order.

 

PRACTICE DIRECTION 23A – APPLICATIONS

 

Applications without service of application notice

3 An application may be made without serving an application notice only:

 

(1) where there is exceptional urgency,

 

(2) where the overriding objective is best furthered by doing so,

 

(3) by consent of all parties,

 

(4) with the permission of the court,

 

(5) where paragraph 2.10 above applies, or

 

(6) where a court order, rule or practice direction permits.

[ericsbrother]

the she defends it, at least in part for the added costs. i bet the real loss to the company is about £25 and the rest is lost profit and staff costs that are waht is called establishment costs anyway- ie they have to pay them whether peopel buy anything or not ( or steal them or not). You cant tell a customer at the checkout " no one has nicked anything today so we are going to add £1.36 security costs to your bill as an afterthought to adjust our profit margins"

[bha100]

They are making a claim under torts to recover compensation for loss and consequential damages, they claim their actions at the time amounted to a wrongful interference with their goods, The value of the claim is an amount that covers the loss as well as an amount that compensates the investigation costs, security costs and administration costs they incurred as a consequence of their actions.

[silverfox1961]

Could you please:

 

1 State who the claimant is?

 

2 Did she receive anything before the claim was made? If yes, who was chasing (which company) There are two companies that regularly crop up. RLP and DWF.

 

3 What letters/claims forms did she receive? Please remove all personal information and reference numbers then post them here in pdf format. For us to help you, we need to see what has occurred so far. If you can't do it due to fears that this thread will be discovered by whomever, you can send any documents to the any member of the site team. At the moment it is like pulling teeth. Help us to help you.

[bha100]

1) It's a local retailer so unless you happen to live in the area you won't know them.

 

2) It's none of the usual suspects

 

3 ) All cpr obligations were followed in an attempt to settle without court claim, I've seen the correspondence and im satisfied they followed the rules.

 

Someone advised her to ignore (don't know who) she was 16 at the time, when the claim forms arrived she was advised to defend the claim ( don't know who ) on the fact she was under 18, Judge agreed and it was stayed, now she's over 18 claimants solicitor sends a letter to the court and a different judge makes a new order ( see post 14 )

 

Told her to expect to lose and cough up the money, have until Friday to submit a defense, has to be worth submitting something and lose than doing nothing and let them win by default,

 

I've seen a few of these but never filed a defense for anyone, so i want to make sure that i follow court procedures to give her the best chance of winning

[ericsbrother]

but you already know they cant claim for these and win that claim of defended using the Oxford case as precedent.

Look anyone can claim anything from anyone and ony when the defendant says it is denied will it ever get looked at as to whetehr there is a case to answer.

For may money i would be making it as dificult as possible for teh to win hands down by forcing them to show a breakdown of their claim for losses as most of them arent claimable. as alreadty said int eh Oxford case. peopel dont get paid twice for the same job they are emloyed to do.

 

 

They are making a claim under torts to recover compensation for loss and consequential damages, they claim their actions at the time amounted to a wrongful interference with their goods, The value of the claim is an amount that covers the loss as well as an amount that compensates the investigation costs, security costs and administration costs they incurred as a consequence of their actions.

[bha100]

but you already know they cant claim for these and win that claim of defended using the Oxford case as precedent.

Look anyone can claim anything from anyone and ony when the defendant says it is denied will it ever get looked at as to whetehr there is a case to answer.

For may money i would be making it as dificult as possible for teh to win hands down by forcing them to show a breakdown of their claim for losses as most of them arent claimable. as alreadty said int eh Oxford case. peopel dont get paid twice for the same job they are emloyed to do.

 

Thank you for the replies, yes i have already taken on board what you have said in relation to that, what i want to make sure i do in put it in the right context on the defence form, im mindful of following the correct procedure for the Contents of defence, so for example on the particulars of claim they put theft of goods, so do they admit or deny it ?

 

16.5.—(1) In his defence, the defendant must state—

(a) which of the allegations in the particulars of claim he denies;

(b) which allegations he is unable to admit or deny, but which he requires the claimant to

prove; and

© which allegations he admits.

 

(2) Where the defendant denies an allegation—

(a) he must state his reasons for doing so; and

(b) if he intends to put forward a different version of events from that given by the claimant,

he must state his own version.

 

(3) A defendant who—

(a) fails to deal with an allegation; but

(b) has set out in his defence the nature of his case in relation to the issue to which that

allegation is relevant,

shall be taken to require that allegation to be proved.

[honeybee13]

Have we seen the particulars of claim please?

 

HB

[bha100]

Have we seen the particulars of claim please?

 

HB

 

I don't have in hand the paperwork it's with the defendant, but it is pretty much what is has on the claim form

 

1) claim is for £247 representing monies due to claimant for theft of goods totaling £50

 

2) claimant seeks to recover case costs of £197 making total claim £247

 

3) despite written demand defendant fail to pay

 

4) claim interest at 8% etc etc etc

[ericsbrother]

this is a CIVIL claim for a loss caused by the defendants actions, this has nothing to do with any criminality so admission of theft is not part of the process. By putting theft of goods they are maiking a mistake ( not a huge on) because the goods were recobvered. The defandant dinst stel their store detecive and that is what they are claiming money for.

 

Go with the simple things. they are denying they owe this sum of money, they may wella dmit owing £15 or so but as alrasdy stated the rest is just made up and you dont want to seem to acept that is a good reason for fighting this.

Thank you for the replies, yes i have already taken on board what you have said in relation to that, what i want to make sure i do in put it in the right context on the defence form, im mindful of following the correct procedure for the Contents of defence, so for example on the particulars of claim they put theft of goods, so do they admit or deny it ?

 

16.5.—(1) In his defence, the defendant must state—

(a) which of the allegations in the particulars of claim he denies;

(b) which allegations he is unable to admit or deny, but which he requires the claimant to

prove; and

© which allegations he admits.

 

(2) Where the defendant denies an allegation—

(a) he must state his reasons for doing so; and

(b) if he intends to put forward a different version of events from that given by the claimant,

he must state his own version.

 

(3) A defendant who—

(a) fails to deal with an allegation; but

(b) has set out in his defence the nature of his case in relation to the issue to which that

allegation is relevant,

shall be taken to require that allegation to be proved.

[bha100]

No the goods were not recovered, but as they stated theft of goods in the particulars of claim under cpr rule 16.5 you have to deal with allegation in one way or another.

[ericsbrother]

well you go down that route and the person will end up paying the whole sum. You either fight it or you give up and it seems to me as though you want to apply some moral argument and punish this person when that isnt what this is about whislt pretending to help them.

 

the claimant has wilfully tried to mislead the court regarding costs and you want to play along with that. I wouldnt, I would make the comapny show their invoices for the lost goods and to force them to mitigate ther costs elsewhwere as well as per the Oxford case.

 

The CPR 16.5 rerquirements are satisfied because my suggestion covers all of the points without any admission of guilt for theft (that is down to another place to decide) and certainly degive reason for dentying the claim.

Edited May 10, 2018 by honeybee13
Paras