Excel & Me Part 2

Lamilad

claretmad62 wrote: »

Ok another thing, just trolling through the letters now. BW let this one slip at tad, I had a letter in early July where they just repeated the claim that the £154.00 balance still stood and that as this was a Civil matter there was no requirement for "strict proof". Then a gap of 6 months, where they re-visited everything again, is this something I can use....even if just to say how incredibly incompetent they are ?

It's not a winning point but worth mentioning as part of a broader paragraph highlighting their incompetence and the unreasonable manner in which they have pursued this case.

I'll see if i can find that wording for the separate claims. Think it's in the ws for my second case

claretmad62

Ok just busy burning the night oil, read thru quite a bit tonight. I've noticed the following statement in quite a few defences "As an unrepresented litigant-in-person I respectfully ask that I be permitted to amend and or supplement this interim defence as may be required following a fuller disclosure of the Claimant’s case.
I saw a post from loadsofchildren123... #2 on the sticky thread that your defence is your defence and you only get one go. So could anyone please expand on what putting in this statement can achieve further down the line ?

Thanks

Xanthanan

For me that went in the initial MCOL defence. Ive amended it in my full defence to say:

I am an unrepresented litigant-in-person and respectfully ask that the court allows such leeway that it deems fit to one unfamiliar with procedures, protocols and the necessary decorum required in such overwhelming circumstances.

Not sure how good or bad that is

Umkomaas

Ordinarily you can only add or amend anything in your submitted defence by paying £255. What you are asking here is, given that the claimant's POC is so lacking in detail, that should their full particulars include something you haven't already 'guessed at' in developing your defence, you are allowed to address this and include later.

You are pleading your inexperience of the court process to help you achieve this. Whether it will persuade the judge to allow it without payment cannot be guaranteed, but at least you've put your marker down.

claretmad62

AOS completed, Wed 10th May the 33rd day. Will begin to put something together in the next few days, thanks for all the help upto press.

claretmad62

Just checking on the back of completing the AOS, do I in anyway respond to BWL ? Looked through the Newbies thread #2, can't seem to find mention of it.

Thanks

Loadsofchildren123

Umkomaas is right. The court has a wide discretion to allow litigants to bypass the rules, in the interests of justice.


Technically, you only get one go, and you can't later add points to your defence. The only way you can do this is to apply for leave to file/serve an Amended Defence (at a cost of £255). If you seek to introduce further defences without doing this, the judge may stop you and may disregard new points.

But the trouble with this is that the new points only arise because of the PPC's action: they put in incoherent, v brief PoCs and then actually particularise their case in the WS. Technically, the correct procedure would be for them to apply for leave to file/serve Amended PoC (again a £255 fee). But they didn't do this, which leaves you in between a rock and a hard place. And the fault starts with them.


This is what judicial discretion and general case management powers exist for. The court has the discretion to allow you to raise further points without formally amending your defence, particularly when you've already warned the other side you are going to do so - but you must raise these additional points in a timely manner and not on the day because the principle is that the other side must know your case and be able to respond to it.

So you protect your position by putting that wording in your defence, and adding points later by way of a Skeleton or in your WS (in my case they served their WS early so I was able to raise points in my WS) - if your right to pursue these arguments is challenged, refer to that para in your defence, emphasising that the only reason you are having to add points later is because the Claimant did so itself by particularising its claim in its WS, via the back door, rather than formally amending the PoC. Argue that if a point is to be taken on your additional arguments, then it is only right that the further particulars of the claim contained in the Claimant's WS should also be disregarded. You can also raise at this point their failure to comply with the Practice Direction - Pre-Action Conduct which was a major contributing factor in you not being able to understand and meet the claim being made. If the PPC ignores the pre-action PD and court procedures, then it can't have it both ways.


It wouldn't be ideal for the court to disregard both, and it would be very unlikely to do so IMO. Justice clearly wouldn't be served. You'd argue that the court has general case management powers which allows it to accept further arguments that were not in the original defence. The court's general case management powers are in CPR Rule 1 and PD 26.

In my case, I actually did an Amended Defence, which I served and I sent it to the court with a letter asking it to make an order giving leave to file the Amended Defence of its own volition (general case management powers give the court the power to issue orders of its own volition - CPR Rule 1.4(2)(c) and Practice Direction 26, paragraph 5.1), or alternatively to treat the letter as an application for leave to amend the defence (it has the power to dispense with a formal application by virtue of CPR Rule 23.3(2)(b)).


However, this was necessary because my defence was a one-liner (defendant was not the driver) because at that stage I was a dumbo who hadn't read the forum.


The court ignored the letter and the amended defence, and so did the Claimant. I ummed and ahhed about issuing a formal application in the lead up to the hearing, but decided to do nothing. If the other side made a fuss on the day I would have run the above arguments - if the court had insisted on a formal application I could have undertaken to issue one later that day. I would have argued that the Claimant would suffer no prejudice because it had been in receipt of the amended defence for weeks and made no objection to it. My original defence didn't contain any mention of reserving my position.


To answer your last q, just do exactly what the notes say - file the AoS, don't serve it on BW. The court notifies them.

Loadsofchildren123

I also think that when you get your DQ, you should draw attention to the other claim and ask that both claims are joined together, which would save court time and the parties costs. If that's what you want, of course. You may alternatively harbour a secret desire to emulate Lamilad and meet your nemesis on a regular basis!

claretmad62

Many thanks for that loc123, I only asked on the adding points later on defence because the quote seem to come up on quite a few Defences I had read. Just recieved letter today "notice of County court claim issued" from BW....3 days after the Court letter from Northampton. So I would assume it is still worth mentioning. On the other PCN, still not heard anything from the Court,..on a date or what their intentions are, even after I called them and sent an email complaining about BW late response to the Courts instruction.

Thanks for your comments.

claretmad62

Afternoon all, just had a go at my 1st "proper defence". Have to admit that I've cut and pasted different bits from other defences and tried to add my own take where I could. Your comments, additions / removals are most welcome

https://www.dropbox.com/s/o8nfon94d9oiln0/Statement%20of%20Defence%20190417.pdf?dl=0