my draft defence Gladstones - PCM Court action

Hi All

Could please someone review the WS.

Regards

I am xxxx and I am the Defendant in this matter. I am representing myself due to the cost of a solicitor and due to this I request some leeway.
(1) This is the Defendant Witness Statement for the court hearing dated xxx allocated after Claimant set aside application.

(2) The Defendant politely asks the court to consider the attached Defendant costs application.

(3) The Defendant want to bring to the court attention that there were two court orders for that case as below :
a- 1st court order: Main claim struck out order dated xxxx, typed on xxx. (Exhibit ps/1)
b- 2nd court order: Defendant costs reward order dated xxxx, typed on xxxx. (Exhibit ps/2)

(4) The Claimant asked in his set aside application dated xxx to set aside only the 2nd court order dated xxxx.

(5) As the Claimant didn’t ask to set aside or to appeal the 1st court order, although he had the time to do so, he confessed that the Defendant didn’t owe any money to him so there was no case from beginning and he confessed that the court trial fees didn’t pay on time.

(6) The Claimant trying to mislead the Court & Defendant by support fake documents & not saying the truth as in section 10 of his set aside application the Claimant confirmed he filed & served Documents, including witness statement, to the court & to the Defendant on xxxx providing copy of cover letter page of his Witness Statement and copy of email cover page to Defendant which it asserts evidences service (Exhibit ps/3).

So the Defendant would like to explain the below:

a- The xxxx county court office in phone calls on xxxx & on xxxx told the Defendant they never received any Claimant’s Witness Statement (in respect of the main claim) and the one recorded in the court system was the Defendant witness statement but mistakenly lodged in the system as Claimant witness statement (Correspondences between the court & the Defendant attached, Exhibit ps/4). The Claimant has therefore failed to file any evidence in support of its application.

b- On the court hearing dated xxxx, which I attended & the Claimant chose not to attend, there were no documents from the Claimant in the front of the judge and the judge clearly state that ‘’the Claimant chose to be silent by not attending or send any documents supporting his case’’.

c- The Defendant never served with any of the Claimant Witness statement up to now and he never received the email alleged claimed was sent to him.

d- Although the Defendant never received that email, in any event CPR27 PD 6A, 4.1 & 4.2, requires a party effecting electronic service to obtain permission and to enquire about the server's ability to handle attachments. Presumably to avoid exactly this type of situation. The Claimant or its solicitor never contacted the Defendant to seek his consent to electronic service nor to enquire about his ability to receive attachments. I put the Claimant & its solicitor to full proof that they obtained my permission and that the email was delivered to and received by me.

e- That email address Claimant’s solicitor said it used to send the Witness Statement was different from the email used in his N180 application form (Exhibit ps/5).

(7) In section 3 of the set aside application The Claimant admits that the reason it did not attend the hearing listed on xxxx was ’’due to administrative error" of its Solicitors’’. That is surely a matter between the Claimant and its solicitor (which will have professional indemnity insurance in respect of negligent actions on its part, including "administrative errors" which lead it to miss court hearings leading to adverse orders) and this not a "good reason" under CPR 27.11(3(a)) as:

a- The Claimant's failure to attend is attributable solely to an administrative error not as a result of anything else, least of all in connection with anything I did or failed to do (in particular it is not connected with the documentary evidence).

b- The fact that an administrative error, particularly such errors in the context of a party that is professionally represented, is not a good reason to set aside an Order of the Court was specifically addressed in Denton v TH White Ltd [2014] (Exhibit ps/8), in which the Court of Appeal (Civil Division) said ‘’ But mere overlooking a deadline, whether on account of overwork or otherwise, is unlikely to be a good reason. We understand that solicitors may be under pressure and have too much work. It may be that this is what occurred in the present case. But that will rarely be a good reason. Solicitors cannot take on too much work and expect to be able to persuade a court that this is a good reason for their failure to meet deadlines. They should either delegate the work to others in their firm or, if they are unable to do this, they should not take on the work at all. This may seem harsh especially at a time when some solicitors are facing serious financial pressures. But the need to comply with rules, practice directions and court orders is essential if litigation is to be conducted in an efficient manner’’.

c- The Court of Appeal also has held that the stricter approach to compliance with rules and directions made under the CPR, set out in Mitchell v News Group Newspapers Ltd [2014] 1 W.L.R. 795 (Exhibit ps/8), and Denton v TH White Ltd [2014] 1 W.L.R. 3926, applies equally to other cases, e.g. in the tax tribunals. In BPP Holdings v The Commissioners for Her Majesty's Revenue and Customs (Exhibit ps/8) the Court of Appeal allowed BPP’s appeal from the Upper Tribunal, and thus debarred HMRC from further participation in the underlying VAT appeal in the First-tier tribunal, by reason of HMRC’s unjustified non-compliance with an order directing them to provide proper particulars of their case.

d- It’s the responsibility of the Claimant & its Solicitor to be aware of court deadlines and hearings, and to comply with/attend them. I should not be prejudiced by an (apparently) negligent failure to attend a hearing of which the Claimant's solicitor admits it was aware but did not attend due to an error on its part.

e- If the Claimant solicitors made an administrative error then the correct course of action from the Claimant is to seek recompense from its solicitors due to their negligence rather than to prejudice an innocent Defendant.

f- The Defendant, as Individual, complied with the order dated xxxx & attended the hearing on time and there is no reason why the professional Claimant or his professional Solicitor did not, other than the solicitors' "administrative error" which would appear to have been negligence on its part.

(8) Even had the Claimant been represented, there was no prospect of defending a costs order wholly. The claim had been struck out. No evidence is before the Court that the Claimant would have been able to defend the costs. It is incorrect and misleading to refer to the merits of any argument in the substantive claim, where this was not the issue before the Court at the costs hearing (the former having already concluded following the strike out).

(9) It was clear from Court Notice of Allocation to Small Claims Track (Hearing) dated xxxx (Exhibit ps/6) , in respect of the main claim, the claimant has to pay the court fee, not to email to court asking them to get the trial fees by other ways. This is a non-compliance of the court order as it is breach of ‘’unless otherwise ordered’’. It’s the responsibility of the Claimant, not court responsibility, to be sure the payment lodged to court on time. This cannot be considered an "administrative error".

(10) It is an unfeasible coincidence that the professional Claimant & its professional solicitor failed to both send and receive everything in full, on time or by the right way and compounded those errors by not pay court fees on time, not filing a Witness Statement to the court or the Defendant, and not attending the court hearing?. That is simply implausible; it is more likely is that the Claimant is unhappy at the order against them for additional costs due to their unreasonable conduct, and now seeks a second bite at the cherry. That is misuse and abuse of the court system and its rules & shows disrespect of the court, which should not allow such conduct and should apply the strict principles set out in Denton case?.

(11) The Claimant’s solicitors are known to be a serial issuer of generic claims similar to this one, with no due diligence, no scrutiny of details or even checking for a true cause of action. HMCS have identified over 1000 similar poorly produced claims and the solicitor's conduct in many of these cases is believed to be currently the subject of an active investigation by the SRA.

(12) I have reason to believe that this set aside application that will proceed without any facts or evidence supplied until the last possible minute, to my significant detriment as an unrepresented Defendant.

(13) I suggest that parking companies using the small claims track as a form of aggressive, automated debt collection and that is not something the courts should be seen to support.

(14) If the court is minded to accept that the Claimant set aside application, the defendant will ask for full costs of costs application for the court hearing dated xxxx & hearing dated xxxx & for future costs

I believe the facts stated in this Witness Statement are true.

Do I have to send the WS & costs application to Gladstones?. The set aside court hearing allocation letter doesn't mention any thing about obligation on me to do that & also I didn't receive any WS from Gladstones.

nosferatu1001 wrote: »

If you dont have anything from GS, I thought that was already raised above, when you said no WS was attached?

I think they will send a WS for the set aside application hearing & I think they will not serve me with a copy as they did before to surprise me at the hearing to hide information from me.

nosferatu1001 wrote: »

Have you spoken to the court about the current status of the C set aside app? That would be prudent. THEY will know whereas we can guess.

I spoken to court several times last month and today and they said no decision from the judge appear in their system yet so as hearing this week do I need to send my WS to Gladstones although I got nothing from them yet?

Hi, I'm after the PD saying the WS / Documents to be filed 24 hrs before court hearing. Any one can guide me please?.

Regards