my draft defence Gladstones - PCM Court action

Coupon-mad · 17 November 2017 at 1:12AM

IMHO, Johnersh's post doesn't just advise, in fact you could pretty much copy & paste and edit a bit, and you'd have a letter to send to the Judge which might help get the claim confirmed as struck out, denying their application.

I'd definitely lodge a witness statement and ask the Claimant for a copy of their hearing bundle (if they're preparing one) and to ensure the statement goes in it.

Sassii · 18 November 2017 at 6:22PM

I called the court as found one paper was missing from PCM set aside application and they sent all pages now. Please find below the links for the PCM set aside application.

The original Notice of Allocation letter from the court said '' if your claim has been struck out, it will no longer exist. The hearing will be vacated, unless a counter claim survive the claim being struck out''.

My understanding that the original PCM claim strucked out and no longer exist, so PCM can't ask for the claim to be listed again in the set aside application, but they did. PCM can only ask to set aside the costs hearing order, is my understanding is right?.

please advise

https://www.keepandshare.com/doc16/19783/epson001-pdf-38k?da=y

https://www.keepandshare.com/doc16/19784/epson002-pdf-57k?da=y

https://www.keepandshare.com/doc16/19785/epson003-pdf-30k?da=y

Coupon-mad · 18 November 2017 at 11:18PM

They are trying for anything they can get, because they HATE the £1500 costs award and probably also know this was reported on a forum, as a result of advice from MSE.

Why do they say you failed to supply any WS and failed to send them your costs schedule - true or not true? Prove that you did, to the court, and object to Gladstones' desperate version of events.

Show us your draft, using Johnersh's words as your steer. State there is no good reason to accept this application, in the context of a professionally represented claimant. In Denton errors made by Solicitors under pressure of work were amongst examples cited by the court that were NOT good reasons to make allowances.

Read these:

http://www.stjohnschambers.co.uk/dashboard/wp-content/uploads/Relief-from-Sanction.pdf

and

https://www.blackstonechambers.com/news/case-bpp_holdings_ltd/

The Court of Appeal 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, and Denton v TH White Ltd [2014] 1 W.L.R. 3926, applies equally to other cases, e.g. in the tax tribunals. 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.

Transcript here:
http://www.bailii.org/ew/cases/EWCA/Civ/2016/121.html

Denton is here:

http://www.bailii.org/ew/cases/EWCA/Civ/2014/906.html

Sassii · 19 November 2017 at 10:11AM

Coupon-mad wrote: »

Why do they say you failed to supply any WS and failed to send them your costs schedule - true or not true? Prove that you did, to the court, and object to Gladstones' desperate version of events.

My WS arrived to court on time & the original case strucked out 2 days before the WS dead line date so I thought there was no reason to send to Gladstones my WS & evidences exposing my personal details specially they didn't send their WS to me or to court. at the costs court hearing the judge said there were no WS or any other documents form the Claimant and the Claimant chose to be silent.

I used the same technic Gladstones used to wait up to the last minute or not send to the other party the documents not ordered by court. it's obvious in their set aside application they didn't ask the court to serve to me that N244 application.

Also the cost application sent with the my struck out application request to court before struck out order by 10 days expecting court will send it to Gladstones.

I'm preparing my letter to court now and will post it evening today.

Regards

Sassii · 19 November 2017 at 11:37PM

Hi again, please find below the letter I'm going to send to court so please advise

I am xxx and I am the Defendant in this matter. I received a court Notice of Hearing letter dated xxxx along with the Claimant set aside application N244.

I politely ask the court to struck out the Claimant set aside application & consider my attached costs application for below reasons:

1- In section 3 of the set aside application The Claimant basis for not attend the hearing listed on xxxx are ’’due to administrative error of Gladstones Solicitors Ltd’’. That is not a good reason for not attending the court hearing under CPR 27.11(3(as)):

a- That is not good reason, in the context of a professionally Solicitor represented claimant.

b- The Defendant, as Individual, complied with the order dated xxxx & attended the hearing on time so there were no reasons why the professional Claimant or his professional Solicitor can’t do that.

c- It’s the responsibility of the Claimant & his Solicitor to employ professional stuff knows what priority issue is & what is not.

d- In Denton v TH White Ltd [2014] EWCA errors made by Solicitors under pressure of work were amongst examples cited by the court that were NOT good reasons.

e- In Denton v TH White Ltd [2014] case 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’’.

f- 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, and Denton v TH White Ltd [2014] 1 W.L.R. 3926, applies equally to other cases, e.g. in the tax tribunals. 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.

2- It was clear from court order dated xxxx the claimant has to pay to court 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’s 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 and the Claimant can simply call the court office to be sure that happened but he chose not to do that. That is can’t be considered as an administrative error.

3- The Claimant Witness Statement didn’t arrived in full to the court on time as at the hearing on 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 support his case’’. I politely ask the court review the transcript of the hearing listed on xxxx.

4- The county court office in phone call on xxxx told the Defendant the Claimant Witness Statement lodged to court on xxxx but it was just cover letter and they can’t find any other documents. That what the defendant received with the Claimant side aside application just a cover letter.

5- In section 10 of the Claimant set aside application, he alleged that his Witness Statement served to the Defendant representing an email to prove that. The Defendant like to explain the below points:

a- The Defendant never served with the Claimant Witness statement up to now and never received that alleged Claimant Witness Statement email.

b- Technically the CPR PD part 6A, 4.1 & 4.2, requirements when effecting electronic service mandate a written or telephone enquiry to obtain permission and specifically enquiries regarding the server's ability to handle attachments. Presumably to avoid exactly this type of situation. The Defendant confirm that the Claimant or his solicitor never contacted him to get that permission and The Defendant strictly ask the Claimant & his solicitor to provide a proof they get a permission from the Defendant for that.

c- That email address Claimant’s solicitor saying the Witness Statement was sent from is different from the solicitor email used in his N180 application form (attached).

d- As per that alleged Claimant’s Solicitor email, Claimant will depend on his Witness Statement only, as there were no mentioned to any evidences attached to the Claimant email.(attached)

6- How likely is it that the professional Claimant & his professional solicitor failed to receive or send everything in full, on time or by the right way and do all of that errors by not pay court fees on time, not file a Witness Statement to thr court or the Defendant in full & on time, and not attend court hearing?. That is not reasonable and not implausibility. That is misuse, abuse & disrespect of court system and Court should not allow that behave to go on.

7- Also the Defendant, as Individual, followed all the directions by the court without failing in single one, so how professional companies as the Claimant & his Solicitor can’t follow any of the directions by court and saying ‘’it’s due to administrative error’’.

8- The Defendant politely asks the court to post to him the Claimant Witness Statement in full if they have evidences and any other documents the Claimant sent to court and will depend on it.

9- As the Defendant received the courts struck out order dated xxx before the dead line of file and serve the Witness Statement i.e xxxx, not xxxx as the claimant said, and just before sending the Witness Statement to the Claimant so the requirement to serve a Witness Statement was dissolved.

Yours faithfully,

KeithP · 19 November 2017 at 11:47PM

"professional stuff "?

" the Claimant side aside"?

"to thr court?"

Sorry to be nit picking but that's just three I spotted.
More proof reading required.

Coupon-mad · 20 November 2017 at 1:14AM

There is no transcript of your hearing, so don't direct the court to review it.

Here, add the case it relates to:

1 f- 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, 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 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.

Here you need to check your English, and need a second pair of eyes to look through it with you as there are typos and grammatical errors elsewhere too:

6- How likely is it that the professional Claimant & his professional solicitor failed to receive or send everything in full, on time or by the right way and [STRIKE]do all of that[/STRIKE] compounded those errors by not paying the court fees on time, not filing a Witness Statement to [STRIKE]thr[/STRIKE] the court or the Defendant [STRIKE]in full & on time[/STRIKE], and not attending the court hearing? That is not reasonable and not plausible; 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. [STRIKE]implausibility[/STRIKE]. That is misuse, abuse & shows disrespect of the [STRIKE]court system and[/STRIKE] Court, which should not allow such conduct and should apply the strict principles in Denton. [STRIKE]that behave to go on[/STRIKE].

I would then delete 7, 8 and 9 (less is more!):

[STRIKE]7- Also the Defendant, as Individual, followed all the directions by the court without failing in single one, so how professional companies as the Claimant & his Solicitor can’t follow any of the directions by court and saying ‘’it’s due to administrative error’’.

8- The Defendant politely asks the court to post to him the Claimant Witness Statement in full if they have evidences and any other documents the Claimant sent to court and will depend on it.

9- As the Defendant received the courts struck out order dated xxx before the dead line of file and serve the Witness Statement i.e xxxx, not xxxx as the claimant said, and just before sending the Witness Statement to the Claimant so the requirement to serve a Witness Statement was dissolved.[/STRIKE]

[Deleted User] · 20 November 2017 at 1:31AM

@Sassii

Errr that's an incoherent letter. Which bit of STATEMENT AND LETTER was ambiguous? I agree with KeithP entirely.

You need to respond to the fact that this is an application to both set aside the strike out and the costs.

You have deleted so much from the original it is impossible to tell if the applications were lodged within 14 days of each order.

I anticipate that the Claimant may be within 14 days of the costs, but not the strike out. If so, make that point - it's a good one - see below

Claimant's Non Payment
Again i've no dates. Given that there was a presumably lengthy period to lodge papers, how hard would it have been to contact the court and say take the money from our account in the usual way? All they had to do (on their own evidence) was send one email. That the fee wasn't paid on time is inexcusable, likely because matters were left until the last minute or omitted entirely. Why wait until all the papers were filed. Why not pay first? Even if the payment took longer than anticipated to clear, had that not been left to the last day, the Court would have received payment on time. The non-payment is a situation of the Claimant's own making. The Claimant was on notice, the Order not unusual (indeed it is standard) and the Claimant was aware of the penalty for non compliance. Indeed, the accounts team at Gladstones should be able to see prior to each court deadline online whether the payment has been taken.

This needs to be treated as a relief from sanctions application under CPR 3.7(8) or 3.9 not as an application under CPR 27.11. Again you have deleted the dates, but you need to point out that not to apply on the day of the strike out (or the day that they found out) is a failure to act promptly. Indeed, if I read 3.7(8) correctly, the application needs to be made within 2 days of the strike out. That is critical to a relief from sanctions application. Denton is the test.

The point you have here is that the Claimant doesn't get to set aside the strike out because he was already struck before the order he objects to, namely the costs. If he gets "back in play" on the costs point, he should still be precluded from pursuing the claim. The application signed with a statement of truth is ambiguous and, potentially misleading with regard to the requirements of the CPR.

Set aside Costs Order
It is impossible to comment as you have deleted the dates: the application within 14 days of the original strike out?

Your statement needs to point out that the Claimant applies under CPR 27.11 to set aside (non attendance without permission). However, the Court is required to have regard to the factors in CPR 27.11(3)(b) namely that the Claimant had good reason for non attendance at the hearing and, further, that there is a reasonable prospect of success.

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. The Defendant filed his papers at Court and was entitled to assume that the Claimant would be served with the same by the Court. 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).

That the Claimant did not attend Court is attributable to administrative error not as a result of any prejudice in connection with the documentary evidence. Administrative error, particularly such errors in the context of a party that is professionally represented are not good reasons to set aside an Order of the Court. That was specifically addressed in Denton (now quote paragraph).

General Points
The Claimant restates matters set out in the Particulars of Claim as the basis for asserting that the claim has prospects of success. The Defence already filed challenges that presumption.

Personally, I think the tax case unhelpful here. There are loads of relief from sanctions matters here, but Denton is king. Keep it simple.

You need to ensure that if this does come to a hearing that the solicitor who signed the statement on the application is in personal attendance. Put Gladstones on notice of this, because I suspect they'll just instruct an advocate. If s/he is not, the evidence cannot be tested regarding their workplace systems etc.

https://media.giphy.com/media/9fjgBPVsT4qNG/giphy.gif

Sassii · 20 November 2017 at 11:20PM

Sorry guys English is not my 1st language I will try again as per your comments. I think Gladstones watch that thread & that is why I deleted the dateds

@Coupon-mad

Thanks v much your comments are very useful & simple. I'm writing a draft depend on it.

@Johnersh

Thanks v much. you are v good in finding their mistakes. please find below

Johnersh wrote: »

Claimant's Non Payment
Again i've no dates. Given that there was a presumably lengthy period to lodge papers,

as per Gladstones story they emailed the court for fees payment 36 days before the Payment dead line.

Johnersh wrote: »

This needs to be treated as a relief from sanctions application under CPR 3.7(8) or 3.9 not as an application under CPR 27.11. Again you have deleted the dates,

The struck out order was 17 days before the the original case hearing and received 4 days before the costs hearing

Johnersh wrote: »

Set aside Costs Order
It is impossible to comment as you have deleted the dates: the application within 14 days of the original strike out?

the hearing costs was 6 days from struck out order received 4 days before the hearing date.

Johnersh wrote: »

You need to ensure that if this does come to a hearing that the solicitor who signed the statement on the application is in personal attendance.

I was thinking if Gladstones instruct an advocate he will attend without knowledge of the case and give me more chance to beat them.

Regards

[Deleted User] · 21 November 2017 at 12:03AM

Questions for Gladstones

1. Does the email set out the Fee Account number from which the Gladstones payment should be taken?
2. Is there any evidence that the account was in credit?
3. Did they ever check that the payment was taken?
4. Do we even know if they have paid a fee?

If the answer to the above is no, then I'd suggest Gladstones simply failed to ensure the fee was paid. They had very limited time to apply once the strike out was made and they didn't apply promptly.

The application to set aside the costs order has been made promptly but as noted above, the Claimant was always going to be subject to a costs order as the claim had been struck out due to their failure to both have adequate payment systems in place and to set aside the strike out promptly.

The claimant seeks to blame you for failing to send in your statement in relation to the main claim (is this correct?). Whilst that may be an error on your part, it is irrelevant where the Claimant has failed to pay a court fee and has been struck out.

Whilst you may not have sent a costs schedule to the Claimant prior to the costs hearing (is this correct?) you may like to argue that there is no reason to assume that it would have been dealt with, where the Claimant's systems were so inadequate on their own evidence that they failed to deal with court orders appropriately. The point is that the lack of a costs schedule made no difference to the outcome of that hearing.

my draft defence Gladstones - PCM Court action

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