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HELP! CEL County Court Business Centre Claim (x2)
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I haven't received the 'detailed particulars' within 14 days as they stated I would, obviously this will strengthen the defence but not quite sure how to word that.
Take the date on the claim form. Add 5 days. That is the service date. Add 14 days. That is the last date for service of the Particulars.
If there has been a failure to serve Particulars of Claim within the 14 days (and the wording on the claim form in this case expressly states that the particulars are to follow) then CPR Part 7.4 applies. They are out of time to serve Particulars. The CPR rule is there for a reason. You are entitled to certainty and to know the case against you. You are entitled to expect the claim to be progressed expeditiously and put before a judge. It is not correct to say there is no prejudice if particulars are sent late. The longer the delay, the greater the prejudice. If it's only a day overdue, that's unlikely to be sufficient, but the onus is on them.
In order to remedy their defect, the Claimant must apply for relief from sanctions in CPR 3.9 and in accordance with the test as set out in Denton v TH White That will be costly for them. Even if relief is granted the costs of the application are usually ordered against the defaulting party.
As I see it, the Defendant cannot apply for default judgment as they are unlikely to be able to serve a certificate of service showing you were served on time (and the partial wording on the claim form is insufficient to found a basis for the claim precisely because it says full particulars will follow). The greater the period of default the less likely it is that the Claimant will get relief.
I would sit tight and wait for the Particulars. If it gets to a week or two overdue, I would then write to them stating that they are overdue and indicating that if it is their intention to proceed they must apply for relief.0 -
Take the date on the claim form. Add 5 days. That is the service date. Add 14 days. That is the last date for service of the Particulars.
If there has been a failure to serve Particulars of Claim within the 14 days (and the wording on the claim form in this case expressly states that the particulars are to follow) then CPR Part 7.4 applies. They are out of time to serve Particulars. The CPR rule is there for a reason. You are entitled to certainty and to know the case against you. You are entitled to expect the claim to be progressed expeditiously and put before a judge. It is not correct to say there is no prejudice if particulars are sent late. The longer the delay, the greater the prejudice. If it's only a day overdue, that's unlikely to be sufficient, but the onus is on them.
In order to remedy their defect, the Claimant must apply for relief from sanctions in CPR 3.9 and in accordance with the test as set out in Denton v TH White That will be costly for them. Even if relief is granted the costs of the application are usually ordered against the defaulting party.
As I see it, the Defendant cannot apply for default judgment as they are unlikely to be able to serve a certificate of service showing you were served on time (and the partial wording on the claim form is insufficient to found a basis for the claim precisely because it says full particulars will follow). The greater the period of default the less likely it is that the Claimant will get relief.
I would sit tight and wait for the Particulars. If it gets to a week or two overdue, I would then write to them stating that they are overdue and indicating that if it is their intention to proceed they must apply for relief.
Thankyou for this information. I feel a little uncomfortable though not submitting some kind of defence within my AOS timeframe, just in case for some reason this particular defence point fails.....I have 6 days before my defense deadline. Could this point not be referenced as another point in the defence, just to state that the claim in its entirety is NOT valid (assuming I have not received any further particulars before the deadline to submit) If so, could you (OR ANYONE) help with how I would word that (am guessing referring to CPR 7.4?)0 -
Johnersh is a lawyer.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Johnersh is a lawyer.
I realise that, and wasn't questioning his advice...was simply asking if its not possible to put the same point into the existing defence and submit within the 28 day timeframe....or does submitting ANY sort of defence then make this particular defence point invalid somehow?
I am NO legal expert which is why I am asking the question for clarity
My concern I guess is that I let the 28 days expire without ANY defence submitted, focusing the entire defence on this one point and then CEL move the obtain an uncontested default judgement, is there no possible scenario this would be successful?0 -
plymouth_damo wrote: »My concern I guess is that I let the 28 days expire without ANY defence submitted, focusing the entire defence on this one point and then CEL move the obtain an uncontested default judgement, is there no possible scenario this would be successful?
How can the 28 days expire?
It's 28 days from receiving the Particulars of Claim.
You are yet to receive the Particulars of Claim.0 -
the problem with filing a defence is the claimant might then argue that you obviously understood the claim well enough to file a defence so there has clearly been no prejudice by their failure to serve full poc in time.
It may be worth waiting until the last day (33 days after issue) then ringing the court to ask if they have received to 'full' particulars as you haven't and you still have no idea what the claim is about and, as such, cannot write a defence. Say it would appear the claimant has decided not to proceed with the claimant so you would like it to be struck out.
Have your defence ready to email in straight away just in case they say something unexpected0 -
How can the 28 days expire?
It's 28 days from receiving the Particulars of Claim.
You are yet to receive the Particulars of Claim.
OK, so maybe it's the process I am not understanding properly here. My understanding was that the you had 14 days from DOS, extended to 28 days on AOS and asking for the extension (which I did)
If no defence is received within this time the claimant can get a default judgement against me due to my failure to respond to the claim (or in this case claims due to the duplication)
so the particulars they have submitted at this top of this thread would DEFINITELY not be enough in their current state for this case to proceed? or could a judgement be obtained on just the details they have given me (as sparse as they may be!)
What if the claimant claims they did send me the details? (and I just never received them...I live in an apartment block for example on on occasion post doesn't always make it to the correct address)
I just don't want to be caught out by missing a deadline or failure to act.0 -
the problem with filing a defence is the claimant might then argue that you obviously understood the claim well enough to file a defence so there has clearly been no prejudice by their failure to serve full poc in time.
It may be worth waiting until the last day (33 days after issue) then ringing the court to ask if they have received to 'full' particulars as you haven't and you still have no idea what the claim is about and, as such, cannot write a defence. Say it would appear the claimant has decided not to proceed with the claimant so you would like it to be struck out.
Have your defence ready to email in straight away just in case they say something unexpected
In this case what is the process for having it struck out (lets say no further particulars have been received by me OR the court) and the deadline to submit my defence has passed, is it just the phone call and ask they to have both claims struck out or do i have to send something in writing?0 -
In HMCTS leaflet EX303 it says:
The second paragraph there explains when the 14 days starts. I do however understand your concerns.What should I do if I receive notice of a claim?
You should act quickly. You only have a short time within which you have to respond. The date you receive the court papers is known as the ‘date of service’, which is two days after the postmark on the envelope it came in. You must respond to the claim within 14 days from this date.
However, first of all, check if the section headed ‘Particulars of claim’ on the claim form contains the words ‘Particulars of claim to follow’. If it does, you should not reply to the claim until you have received these ‘particulars’ (or details), which should be sent to you within 14 days. Once you receive the particulars of the claim, make sure you respond within 14 days of receiving them.0 -
plymouth_damo wrote: »Thankyou for this information. I feel a little uncomfortable though not submitting some kind of defence within my AOS timeframe, just in case for some reason this particular defence point fails....
I have 6 days before my defense deadline.
how can this be a correct statement ?
if the 14 days are up today for receiving the POC from the claimant , even under the old system you would still have another 14 days to submit a defence (not 6 days) , PROVIDING you had done the online AOS or returned one of the papers
doing the AOS under the old system doubled the time from 14 days to 28 days
if the claimant has not sent you the POC within the first 14 days , then you would still have another 14 days to submit the defence (under the old system)
from what I can see the new protocols change this because you have a different deadline due to waiting for the POC
if in doubt , PHONE THE CCBC and check when that actual deadline is (how hard can it be to find out ?)
I read your statements and cannot fathom out how its now 14 days that have elapsed so they missed their deadline , yet you say you only have 6 days left ? (14 + 14 = 28 , not 14 + 6 = 20)
your maths is incorrect here somewhere
the fact is that there will be a deadline date for your defence to be submitted, so find out when that is if you are unsure (bear in mind that this is new to all of us due to new protocols coming in 3 weeks ago)0
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