POFA '12 not valid?

Lockable

Johnersh said:

OK. What is the reason that they failed to serve? Under 3.9(2) evidence needs to be provided.
The fact that they were writing to you on the last day (or imminently before) means that they had the file open in front of them. They shouldn't have missed the deadline.
Have they filed amended particulars yet? The main point to run here is that the original order was made because there were doubts as to whether they had a case, time has been and gone... What's the point of reinstating the claim if it is still destined to fail with the ppc neither showing good reason for the delay or a basis on which the claim can prevail. 

I've had nothing from the court except the notice that a hearing ( app. for relief from sanctions ) will be held. Will I be invited to contribute? Presumably that would be the point to raise these questions?
What does '3.9(2)' refer to specifically?  I can look that up in order to reference it if asked.

Le_Kirk

Lockable said:

Johnersh said:

OK. What is the reason that they failed to serve? Under 3.9(2) evidence needs to be provided.
..............

I've had nothing from the court except the notice that a hearing ( app. for relief from sanctions ) will be held. Will I be invited to contribute? Presumably that would be the point to raise these questions?
What does '3.9(2)' refer to specifically?  I can look that up in order to reference it if asked.

Well, Auntie Google gave me the answer: -

Rule 3.9 - Relief from sanctions,
(1) On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances of the case, so as to enable it to deal justly with the application, including the need –
(a) for litigation to be conducted efficiently and at proportionate cost; and
(b) to enforce compliance with rules, practice directions and orders.
(2) An application for relief must be supported by evidence.

D_P_Dance

I wish that people would use a search engine before asking us.

Umkomaas

D_P_Dance said:

I wish that people would use a search engine before asking us.

It just clogs up so much forum time. There again, it does allow posters to relax and take it easy while they post up the next question that comes to mind. 

Room service of the highest order. (I'm sure you've been on the end of some of that in your time @D_P_Dance?). 😊

Lockable

D_P_Dance said:

I wish that people would use a search engine before asking us.

And search for what? 
3.9(2)?    It's given without a specific reference.
It's just numbers, do you know how many wildly differing results come back when you put those numbers in a search engine?
582,000,000 results.

Johnersh

Civil procedure rules - they do apply to all court users.

Yes there is normally a hearing at which you can object the relief sought.  There's little risk of being penalised for asking for a hearing, since this is all their error.

That application is not complete. The witness statement section is on the back. 

There is case law to the effect that attempting to get relief whilst still in breach is not a good position to be in - they don't have a time extension, every day they are still later with the defence. 

henrik777

Lockable said:

OK, so after emailing the court for further info I emailed CST for details of the relief application & they sent the below back to me. I get the feeling they wouldn't have sent this had I not asked so thanks for the advice. Not sure who it was from.
Seems they failed to abide by the court order of 23/1/21 are looking to not be punished for that AND are seeking a 2 week extension to get their 'amended' case in. 
I can only think they are drunk or incompetent.
Is the court likely to allow them to do this? 
Is this new territory?
Can I put the boot in at this stage?

10 is the important bit but you haven't posted it.
That's where they show, or reference, how they pass the Denton test.

The 3-stage test introduced in Denton requires the court to:

1) identify and assess the serioussness and significance of the non-compliance 
2) consider why the breach occurred 
3) evaluate all circumstances of the case so the application is dealt with fairly

Lockable

Johnersh said:

Civil procedure rules - they do apply to all court users.

Got that, thank you. 
Here's the witness statement. They say they couldn't get Conkai to give them instruction in time to meet the deadline for err.....reasons. 
They cite some cases in support of their argument.
If they evade sanctions, does it follow that they'll have the request for more time granted as well?

Castle

Lockable said:

Johnersh said:

Civil procedure rules - they do apply to all court users.

Got that, thank you. 
Here's the witness statement. They say they couldn't get Conkai to give them instruction in time to meet the deadline for err.....reasons. 
They cite some cases in support of their argument.
If they evade sanctions, does it follow that they'll have the request for more time granted as well?

Actually they are saying they couldn't contact the claimant's agents; that's probably due to the fact that Conkai Security don't actually have any employees and all the admin is done by VCS/Excel.

Johnersh

That statement is woeful. 
1. They couldn't obtain instructions on amended particulars?

First, it appears that none have yet been drafted, so there's little to take instructions on.

Second, are they really saying no-one could answer the phone?

Third, someone obtained instructions to advance settlement proposals on *the last day* (if the offer was without prejudice you may still refer to the making of the offer, but not the amount/precise nature of the offer). This could well be fatal for them. 

Note that if the sols were instructed not to file any documents at court, that would amount to an instruction not to comply with a court order:
Chambers v Bucks Healthcare NHS
https://www.civillitigationbrief.com/2014/02/12/chambers-v-buckinghamshire-healthcare-nhs-trust-a-detailed-examination-as-to-why-the-defendant-could-not-adduce-its-expert-evidence/ 

2. If they were unable to file amended particulars, the correct approach was to apply prospectively for a time extension on the basis that they had no instructions. There is no explanation as to why they allowed time to expire, before seeking an extension.

The application may have been made promptly, but it proceeds on the presumption that this is a simple time extension. The claim has been struck out and their actual period of default persists until amended particulars are filed, since they don't have permission to serve late. 

3. There is no evidence as to when, how or how often the instructions were sought. There is no proper reason from corporate entities that are better resourced than the defendant. The Ppc should also serve a statement explaining why instructions were not provided. 

4. It is not correct to say no prejudice. The poorly pleaded particulars resulted in the order, which have led to default and a further hearing and significant additional time and effort in what is a small claim. The overriding objectives (CPR Part 1) require the court to consider appropriate use of court resources. The fact is that the ppc does not have a good case, failed to act on a peremptory order and it is appropriate to strike out the claim in the circumstances. The claim is already struck out, which is the effect of the order. Accordingly the defendant is obviously prejudiced by reinstating the claim.

5. Really don't cite authorities without making the court of those that don't assist, else you risk misleading the court. So in counter to her submissions, I bring you Oak Cash & Carry v British Gas - defence filed 2 days late was struck out
https://www.bailii.org/ew/cases/EWCA/Civ/2016/153.html 

6. I note that the solicitor is the only one employed by the claimant (at all). She is almost certainly not the one handling this matter. She's witness to nothing. It's all general comment not evidence. 

7. Even if the ppc is successful, This is self evidently their error. The correct order is that they bear the costs of the application and the consequential costs of preparing a new defence.