How do I resist a Notice of Transfer of Proceedings?

a_q

Hi,

I am defending an MCOL claim and have filed N180. The claim is for £350 and has been allocated to the small claims track.

Initially the case was to be heard at my local county court (as requested on my N180)

Then a few weeks later I received a Notice of Transfer of Proceedings to another court in the same county but 60 miles away.

At that point I wrote a letter to the clerk of the court (copied to both the original and new court) requesting that the case be moved back to the original court. The reasons being expense, inconvenience, etc. Also the claimant being a national agency it matters not to them where the case is heard.

Now I have received another Notice of Transfer of Proceedings transferring the case to Yorkshire, 220 miles away. It will be infeasible to defend this hearing in person, I would incur loss of earnings for a day, maybe a hotel stay, excessive travel costs etc.

My original letter has not been taken on board, obviously, so what do I have to do?

Do I file an N244 to have the Order set aside as per the notice? In which case does this have to be accompanied by a fee, or not for this simple request?

Or if not an N244, what form would be most appropriate?

Thanks,

- Ads

WhenIam64

Are you a consumer or are you a Trader? Consumers, as you have stated, have the hearing in the local court (Business to Consumer/B2C)

If it is B2B then it is the Claimant's court.

The N244 (at £255) is the way to get a hearing as you are paying for time in front of a judge. But as this is just a scheduling issue, then contacting the Court Manager in Yorkshire to explain this is a B2C (if correct) should get it moved. Ask the Court Manager what reason the Claimant gave,

The Court Manager can be referred to CPR 26.2A (3) which says

(3) Subject to paragraphs (5) and (5A), if the defendant is an individual and the claim is for a specified sum of money, at the relevant time the claim must be sent to the defendant’s home court (save that where there are two or more defendants, one or more of whom are individuals, the claim must be sent to the home court of the defendant who first files their defence).

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part26

But it depends on whether you it is plain vanilla consumer case without the frills.

a_q

Thanks for the quick reply and the link. It is B2B although at my end it's a small limited company (one director who is sole member of staff). On the other hand it isn't the claimant's home court that the case had been transferred to, rather the court nearest their solicitor's office. They could quite easily engage solicitors near me, rather than 200 miles away.

It isn't worth paying that much to file an N244. Is it worth writing to the court manager to attempt to get the hearing moved back to my home court? And should this request be addressed via MCOL or direct to the Yorkshire court?

While researching last night I read about a telephone hearing. As it would be onerous and impractical for me to attend in Yorkshire how would I arrange this if the case remains assigned there, and would I then send original evidence to the court for the hearing for the judge to see in person?

Thanks again.

WhenIam64

If it is B2B, the solicitor's court is acceptable.

While researching last night I read about a telephone hearing.

The court's view about hearings, is they don't like them or want them. They expect people to sort it out without coming to them. So options are :

Prior to hearing
(a) Mediation: Always on option on every case. Run by a private company on behalf of HMCTS with the sole aim of stopping cases coming to court. They will continue to ask "how may will you settle for" as this is their sole aim.

Types of hearing:

(b) Phone hearing: Yes that can be scheduled and the court will contact the parties on the day. The slight disadvantage with that you have to organise it beforehand but you can change your mind no more than 7 days prior to a hearing

(c) Paper Hearing: If 7 days before you decide having seen the paperwork you don't want to attend, you can ask the court to hear the case on "papers only". You get a letter about a week later telling you what the court has decided based on the evidence presented.

(d) Personal Hearing: When the parties turn up in person. If the hearing is going to be at the solicitors home court, then the implication is that you will be up against a solicitor so the two other options may be better.

The skill here is to do as much of the groundwork between the defence going in and the Witness Statement (a.k.a. evidence) stage so you have the better set of papers than the other guy. Witness Statements get exchanged 14 days before a hearing.

Even with a solicitor, if the other party has holes in the paperwork the judge will find them - yours too. So it's the paperwork that wins and not the hired suit. So if you think you have better paperwork, then wait till you see it in 20 weeks time and make your decision to whether to go (personal) or phone or papers only.

a_q

Well the hearing date has been set which is the 30th, I suppose the courts are a little less busy than usual.

I submitted my defence and witness statement to arrive on the 15th, but the claimant's only arrived on the 18th. This is beyond the 14-day limit, can I use this to my advantage and if so what should I be asking the court to do?

(As background I successfully claimed a few years ago through small claims,. representing myself. As I recall I had to follow the procedure to demand the money with a 28-day deadline, with threat of court proceedings, which I repeated to make sure.)

In terms of overall procedure the claimant has failed to follow the usual pre-action protocol. I was last in contact with the claimant about a year ago when negotiations about the sum broke down. The claimant had not since demanded any money, in fact when I had dealings with them on another matter 6 months ago I paid a small bill and the larger amount was not on my account.

The MCOL action came out of the blue and only when I filed a defence online did I hear from the claimant's solicitors. I thnk they were trying to slip it by me unnoticed hoping for a default judgement.

The timeline has been included in the defence (as it forms part of the original liability too) pointing out the lack of pre-action protocol. The claimant also did not tick the mediation box, which I did, so mediation didn't happen.

I have asked the court manager for a "papers only" hearing as it's too far to go. If there is anything else I should be doing please let me know.

WhenIam64

can I use this to my advantage and if so what should I be asking the court to do?

Not really. Have you been disadvantaged in any way by the couple of days?

In terms of overall procedure the claimant has failed to follow the usual pre-action protocol.

Not really. PAP is all about understanding the issue prior to putting in a defence. Sounds as if you clearly understood the issue from the earlier exchange.

as it's too far to go.

Why is it not your local court? The rule was explained at #2

a_q

Well after all that there was an adjournment and when I phoned the court they said that there was no reason recorded.

Nevertheless a new date has been set for July.

A few weeks before the hearing date and I have received another witness statement from the claimant, and the new development is that they have upped the claim by a factor of two, and added quite high costs on top of that.

In the witness statement the reason for the adjournment was revealed too, the claimant had asked for it, to reply further to my defence points.

To me, this seems like an unusual manoeuvre for the small claims track. I can see no grounds for increasing the claim. The maximum liability at the outset was quite clear, and was claimed for at that time.

I will of course reply, but any robust wording suggestions to rebut the increase, and/or the extra costs claim, would be most welcome.

WhenIam64

They asked for the adjournment but did they pay to have the claim amended? Check with the court manager if they did.

To me, this seems like an unusual manoeuvre for the small claims track. I can see no grounds for increasing the claim. The maximum liability at the outset was quite clear, and was claimed for at that time.

So that's is what you will argue but you appear to indicate that you do have a liability. What about settling?