So I'm going to court...

Loadsofchildren123

Jhpt wrote: »

"IT IS ORDERED THAT

1. .........

2. Unless the Claimant issues and a copy on the Defendant by 4pm on 15 December 2017, an application for an extension of time for its evidence including copies of the Claimant's evidence in accordance with Paragraph 2 of the order of 9 October 2017 (To include full responses to the Defendan'ts evidence), then the claim shall be dismissed and the Defendant shall have permission to apply (with a statement of reason and amount) for costs (attention being drawn to Civil Procedure Rule 27.14). If the Claimant does not comply then the Court will consider whether the application is heard before or at the Small Claims Hearing.

"

CAN I please ask...

1. As I understand this, I have to send copies of my communication with the Court to the Claimant by 8 December yes
2. The Claimant has to send me their evidence, ? no WITH an application for extension of time ? by 15 December they have got to apply for permission to rely on any WS as they haven't served it in time. Until they successfully apply there is no WS so you won't get a copy of it. Read the words I've put in bold which simplifies it a bit.
If they haven't issued an application by 15 December then their claim will be dismissed. This should happen automatically, but if I were you I'd phone the court to chase for the dismissal order to be made. 15 Dec is a Friday, I'd probably wait until Tuesday morning to make that call. The Claimant has to both lodge the application at court and send it to you.

Chances of success if they do issue an application: can't say without knowing more. Eg how late are they (if not very that goes in their favour), what their excuse will be (when they issue the application they have to file a statement with it explaining what the delay was - a weak excuse will be that there was an admin failure on their part - that in itself is not a reason to allow late service, frankly it's a matter of negligence for which their client can seek redress, it shouldn't be used to prejudice you), what prejudice this has caused you (they've seen your evidence when they shouldn't have, will this cause the trial date to be put back etc).


When you get their application/evidence, post it on here. You must respond to it quickly in order to persuade the court not to grant the application and to dismiss the claim.


*edit: sorry my quoting didn't work, don't know why, but you'll get what I'm trying to say

DoaM

Quoting failed because you've included [/ from the QUOTE] tag within the red font colour tag.

Loadsofchildren123

Tada! I have managed to correct it

logician

jhpt wrote: »

update

just received another letter from the court;

this is following on from emailing x1 and telephoning the court, asking if they'd received anything from the claimant as i was yet to, and then sending a cover letter via email asking for the case to be dismissed due to the claimant not abiding by the timeline set out by the court.

"it is ordered that

1. The defendant shall serve copies of the defendant's emails on the claimant by 4pm on 8 december 2017

2. Unless the claimant issues and a copy on the defendant by 4pm on 15 december 2017, an application for an extension of time for its evidence including copies of the claimant's evidence in accordance with paragraph 2 of the order of 9 october 2017 (to include full responses to the defendan'ts evidence), then the claim shall be dismissed and the defendant shall have permission to apply (with a statement of reason and amount) for costs (attention being drawn to civil procedure rule 27.14). If the claimant does not comply then the court will consider whether the application is heard before or at the small claims hearing.

"

can i please ask...

1. As i understand this, i have to send copies of my communication with the court to the claimant by 8 december yes
2. The claimant has to send me their evidence, ? Yes
with an application for extension of time ? By 15 december yes


i understand i've made an error here by not copying the claimant into my previous emails to the court requesting this be dismissed - annoyingly (albiet correctly) this has been picked up on by the judge, despite them not contacting me.

Thanks once more.

yes the claimant needs to make an application for an extension of time to submit the evidence. The copy of the order application must be served on you together with copies of their evidence, including responses to your evidence

Loadsofchildren123

Agree with the above, my "no" to the first part of your second point should have been a yes - but you aren't being formally served with their evidence, you're just being given a copy of it with their application, IF they issue it. If they don't issue it, their claim is to be struck out.

There's an interesting point here that's always being made out in defences, but at a final hearing never pays attention to it (not because it isn't a good point, but because it doesn't have time to consider everything and just wants to make a decision on the day). The point is that PPCs habitually issue claims with very brief, poor PoC that are woefully deficient in breach of Rules 7 and 16. Very rarely, the court picks up on it and orders them to file proper more detailed PoC.
The PPC then takes the opportunity to put all the info into its WS that should have been in the PoC. What it is effectively doing is amending how its case is pleaded, but in the evidence. What this means it that it is effectively amending the Particulars, but without leave and without having to pay the court fee that normally has to be paid.

Because in your case the issue is whether or not they should be allowed to put in a WS, I think this is a good point for you to include in your letter to the court asking them to deny the extension of time. You'll have sight of the WS before they've been given permission to serve it, and you can make the point that all the information in paragraphs x, y and z has not been pleaded and the Claimant shouldn't be permitted to re-plead its case in the WS rather than formally amending the claim (because to do so prevents you from defending it properly, which is your absolute right). It will be interesting to see what approach the court takes to this, because the PPCs shouldn't be getting away with it.

logician

Loadsofchildren123 wrote: »

Agree with the above, my "no" to the first part of your second point should have been a yes - but you aren't being formally served with their evidence, you're just being given a copy of it with their application, IF they issue it. If they don't issue it, their claim is to be struck out.

There's an interesting point here that's always being made out in defences, but at a final hearing never pays attention to it (not because it isn't a good point, but because it doesn't have time to consider everything and just wants to make a decision on the day). The point is that PPCs habitually issue claims with very brief, poor PoC that are woefully deficient in breach of Rules 7 and 16. Very rarely, the court picks up on it and orders them to file proper more detailed PoC.
The PPC then takes the opportunity to put all the info into its WS that should have been in the PoC. What it is effectively doing is amending how its case is pleaded, but in the evidence. What this means it that it is effectively amending the Particulars, but without leave and without having to pay the court fee that normally has to be paid.

Because in your case the issue is whether or not they should be allowed to put in a WS, I think this is a good point for you to include in your letter to the court asking them to deny the extension of time. You'll have sight of the WS before they've been given permission to serve it, and you can make the point that all the information in paragraphs x, y and z has not been pleaded and the Claimant shouldn't be permitted to re-plead its case in the WS rather than formally amending the claim (because to do so prevents you from defending it properly, which is your absolute right). It will be interesting to see what approach the court takes to this, because the PPCs shouldn't be getting away with it.

If the OP complies with part one of the order and
IF the Claimant complies with the second part, then IMO the court will be looking at the documents and the application for extension and will then make any further directions needed or take any decision under CPR 3.4.

No need to rush in immediately with any letter, the OP should wait to see if the Claimant meets the deadline first.


Incidentally the courts do sometimes make decisions based on non compliance for CPR at hearings, in cases where I have assisted there already have been a batch of strike outs and dismissals for non compliance under rule 16 including costs for unreasonable conduct.



ETA btw LOC123 like your new signature

Loadsofchildren123

If D doesn't write in and object to the application being granted, it's more likely to be granted. I think (s)he should write in to object to it making all those points. Nothing to lose and everything to gain. No point writing in until the application is actually issued, because the PPC may miss the deadline and you have nothing to object to until they do apply.

Jhpt

Thank you all for such great input and for explaining this to me - bit of a better result than I first thought!

LOC - completely understand, and as you say nothing to lose by writing in once I have (if it happens) reccieved the application. To update I have already served the PPC/Court with the additional information as point 1.

Can I ask finally - if the Claimant fails to respond by 15 Dec, is it possible that I can still claim costs?

nosferatu1001

You can give it a go, as was already pointed out to you! Part 2 of the order said you should look to costs under CPR27.14, and this specifically means 27.14(2)(g) - this says you dont get costs in small claims UNLESS one party was unreasonable.

Breach of multiple orders would be unreasonable

Loadsofchildren123

That order is flagging up unreasonable costs - they're saying that you can apply for these. What the order says is that if they don't issue the application, then the claim is dismissed and:


the Defendant shall have permission to apply (with a statement of reason and amount) for costs (attention being drawn to Civil Procedure Rule 27.14). If the Claimant does not comply then the Court will consider whether the application is heard before or at the Small Claims Hearing.


So if no application, you write in with a statement of costs, a letter explaining all the ways they've behaved badly, breaching rules etc, and ask for a costs order. The court may set a date, or may tell you to come along to the original trial date to argue it out. You may want to ask the court to deal with the application on paper rather than requiring a hearing (although it's fairly likely CEL won't want to come to the hearing just to talk about costs and so it may be better just to chance it and turn up and argue the point). Confirm that you have sent a copy of the statement of costs and your letter to the PPC so the court knows you've put them on notice.