Charging Order? The myth

eggbox

weimimamma

What was the N245 sent in relation to?

DAKOTA45

eggbox wrote: »

Hi Dakota

You need to investigate a Witness Summons have a look HERE

Have you no evidence to take to Court?

Just emails and text evidence…I believe these are hearsay and whilst admissible, signed witness statements would be better. D45

eggbox

Yes they would, but make sure you have the logs of the texts and emails as proof of sending.

All evidence can be challenged but in a Civil Court you only need to prove on the balance of probability that the texts/emails were sent and received.

Will the senders not give you verification they were sent?

DAKOTA45

Yes… and the estate agent was interviewed by the police and has told me that he repeated what he was told by the purchasers in that my neighbour threatened them, causing the sale to collapse… I suppose the best thing would be to try and get disclosure from the police… they were called on two separate occasions, first when he caused criminal damage to my property and then again when he interfered with my sale… They want a lot of money for disclosure and I don't have any… same for witnesses… the hearing is at the High Court in London… I can't afford to pay them to attend, even if they were willing…
I believe I need to ask permission to provide hearsay evidence, but here's the thing; I heard that if a defendant fails to acknowledge within 14 days, they lose the right to request any evidence from me… do you know if that's a fact? D45

DAKOTA45

THE RULES: CPR 11: TO CHALLENGE SERVICE A DEFENDANT HAS TO DISPUTE THE JURISDICTION OF THE COURT WITHIN 14 DAYS OF ACKNOWLEDGING SERVICE

The decision concerned CPR rule 11(1)-(5):

(1) A defendant who wishes to –

(a) dispute the court’s jurisdiction to try the claim; or

(b) argue that the court should not exercise its jurisdiction

may apply to the court for an order declaring that it has no such jurisdiction or should not exercise any jurisdiction which it may have.

(2) A defendant who wishes to make such an application must first file an acknowledgment of service in accordance with Part 10.

(3) A defendant who files an acknowledgment of service does not, by doing so, lose any right that he may have to dispute the court’s jurisdiction.

(4) An application under this rule must –

(a) be made within 14 days after filing an acknowledgment of service; and

(b) be supported by evidence.

(5) If the defendant –

(a) files an acknowledgment of service; and

(b) does not make such an application within the period specified in paragraph (4),

he is to be treated as having accepted that the court has jurisdiction to try the claim

Hmmmm…

DAKOTA45

Also this is very relevant; (Eggbox, please let me know if you want me to delete anything… I don't want to clutter up this thread with my own stuff).

The defendant ran out of time to acknowledge on 24 August and I requested judgement by default.

His lawyers filed and served a defence on 9 September (but still no acknowledgement of service).

See below for a similar situation...

DEFAULT JUDGMENT CAN BE OBTAINED WHEN ACKNOWLEDGMENT OF SERVICE IS SERVED LATE


A claimant can enter judgment in default of acknowledgement of service.

What is the position if the acknowledgment of service is served late?
This point was considered by Phillips J in Almond -v- Medgolf Properties (QBC Comm 19/5/2015). *

THE CASE
The claimant applied for summary judgment in default of acknowledgement of service.
After the application was made the defendant served acknowledgment of service on the claimant but did not file a copy at court.
The defendant argued that it was entitled to serve the acknowledgment late.


• The position had to be be judged at the date that the application for default judgment was made.

• It would make a nonsense of procedure if a defendant could avoid default judgment by acknowledging service any time before judgment was entered.

• Further an acknowledgment of service had not, in fact, been filed. Providing a copy to a party was not sufficient to prevent judgment being entered.

• The history, and absence of explanation for the delay, meant that there was no basis whatsoever for granting the defendant an extension of time.

* Reported on Lawtel. This post is based on the Lawtel summary,.

CPR 12.3
12.3— Conditions to be satisfied
(1) The claimant may obtain judgment in default of an acknowledgment of service only if–
(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
(b) the relevant time for doing so has expired.

As per your post at #2766, this seems to say that acknowledgement must precede or accompany defence, but within the initial 14 day time limit…


It has been complicated by the court saying I'd not listed my particulars of claim in the certificate of service, however, the fact that his lawyers have responded with a defence, kind of blows that out of the water… they couldn't defend something they hadn't received, could they?!

D45

eggbox

Dakota

The Court is saying you haven't served the POC within the time limits allowed.

CPR 7.4
(1) Particulars of claim must –
(a) be contained in or served with the claim form; or
(b) subject to paragraph (2) be served on the defendant by the claimant within 14 days after service of the claim form.

So you won't be entitled to claim a Judgement by Default if this is the case?

DAKOTA45

eggbox wrote: »

Dakota

The Court is saying you haven't served the POC within the time limits allowed.

CPR 7.4
(1) Particulars of claim must –
(a) be contained in or served with the claim form; or
(b) subject to paragraph (2) be served on the defendant by the claimant within 14 days after service of the claim form.

So you won't be entitled to claim a Judgement by Default if this is the case?

POC were served along with the claim form on 10 August… defendant's lawyers have responded to POC, but have not acknowledged claim, so is their defence admissible, even though they didn't acknowledge?

What the court was saying is that I hadn't listed the POC on the certificate of service… I wrote back and told them it was an oversight and that for the avoidance of any doubt, the POC were filed and served… they know full well that I included the POC on the claim form… just another example of the court messing up to my detriment, as per usual.

The other thing is that they have asked the court to strike out the claim… apparently, if they do that, you can't request default judgement… I just goes on and on… almost feel like jacking it in, but I know it will eat away at me if I don't get justice…

D45

eggbox

They will try to strike the claim as a matter of routine. But this would be doubtful unless your POC looked extremely weak.

If you have stated you have evidence of the offence occurring then it would be difficult to see how the claim could be struck out without a Judge viewing the evidence?

Lazy_B

Hello

I'm ashamed to say I haven't been on this thread since I successfully sold my house in Feb 2014. At the time I was asked which solicitor I went through, if I remember rightly it was Countrywide, who were linked to the estate agent. It all happened very simply, I informed the solicitor that I was under no obligation to pay the restriction, they agreed and the sale went ahead.
My question now is ( feel free to ignore me as I left!), would the creditor who issued court order have been informed of the sale? I didn't tell them myself, now they have sent me a letter (to the old address) asking me to fill out another income and expenditure form and I'm getting scared again, but don't want to bury my head in the sand like I did before!
- so sorry for too long post��
Btw my original ccj is now over 6 years and not showing on my credit score.