Struck out case back again - I am at the end of my tether

Johnersh

Back on topic...

Read the rules (if you don't no-one will, because C appears to be a stranger to them)

My reading of Cpr 3.7(7) is that the magic word is "relief" - this required a relief from sanction (strike out) application. So why were you not copied in? Yes it's clearly prejudicial - effectively starting the claim anew after primary limitation had expired and after previous cpr non compliance by C.

Had the application been made on notice - with D being represented (ie present at a hearing and aware of their intentions) I suspect the same order would not have been made.

That's no doubt why you weren't copied in by C. That's unacceptable. In fact is yet further evidence of non compliance with rules of procedure and an additional reason why relief should not have been given inmho. 

Le_Kirk

There you are OP, chapter and verse from @Johnersh, go after them!

roberts589

Brilliant stuff. Thanks Johnersh.

Is stringing all those points into a single piece of correspondence one to send to the court, or to claimant solicitor inviting them to !!!!!! off ?

Coupon-mad

Johnersh said:

They likely will have applied to have the claim reinstated. If so, that should have been on notice.

So, you write to the court and to the C and seek copies of all and any correspondence with the court since the strike out. There has no doubt been a breach of cpr 39.8, which is critical to openness and fairness in proceedings. No professionally represented party should fail to comply with that obligation. 

Further, if an application was made formally, then cpr 23. 4(1) is in play too. 

Johnersh already said "write to the court and the C" (meaning the C's solicitors).

One email to both.  Not separate emails.

Not the CCBC at Northampton of course.

roberts589

Got it - thanks all

roberts589

I have heard back from the court finally, and they allude to the fact that the order striking out the claim and vacating the hearing from 15 months ago, also gave the claimant 14 days to pay the fee (the deadline for which they missed resulting in the strike out.)

Does that sound in any way equitable and correct?!

I have asked the court to confirm the wording of the order as I cannot find it after 14 months, and also if there has been a formal application to re-instate. The court however uses the wording "the claim was re-instated and is live." 

The court also just signed off with "talk to the judge at the hearing." The one next week...... which I only found out about last week over a year after the strike out, and 2 years since the successful set aside.

Coupon-mad

Please show us.

roberts589

"Dear Sirs,

Further to your email below,

The matter in question was struck out in January 2022 due to non-payment of the hearing fee.

 This matter was then re-instated as the Hearing Fee was paid given that the Claimant adhered to the 14 day deadline as stated on the order provided on the xxx January 2022 which explains the new hearing date.

 Claimants are entitled to re-instate claims unless stated otherwise by the Judge, in this case there was no error and claim XXXXXX is a live case.

 If there are any further concerns, I would advise to relay this to the Judge on the hearing taking place on the XX April 2023.

 

We would like to apologise for any confusion this may have caused.

 

Kind regards,"

After nearly two hours on hold just now to the CCBC, they read out the posted orders again, and it read that Point 1 - The hearing fee not being paid 2. The claim was struck out and hearing vacated. Parties subject to this order can apply to have the claim reinstated within 14 days. without a hearing necessary.

So to re-iterate, the last I heard was the Jan 22 order than claim was struck out, the next i hear is last week, April 23, of a hearing next week, and a huge costs schedule form the claimant.

roberts589

I have also caught the C's solicitors out in two lies now - on the phone last week they stated that they did in fact pay the fee in time, and someone even turned up at court only to hear that the hearing was vacated.

So, as per the court, no, they didnt pay prior to the original strike out.... and no, nobody "turned up" as it was a telephone hearing!!!!!!

Something hugely underhand going on

Coupon-mad

None of this changes what @Johnersh said.  We all knew already that they'd applied to reinstate.

AIUI he was telling you that this application should have seen you copied in:

Parties subject to this order can apply to have the claim reinstated within 14 days. without a hearing necessary.

Instead it was an application done behind your back.