MCOL - Help Please.
Discussion
I have submitted a MCOL against a company. This is the first time I have ever had to do anything like this.
It would appear the 'particulars of claim - 14 days' which we sent to the defendant has got lost in the post.!!
The defendant claims he has not had them and is defending purely on this basis.
What do I need to do now? Have I a way of preventing him from wriggling out of this claim because of this.
It would appear the 'particulars of claim - 14 days' which we sent to the defendant has got lost in the post.!!
The defendant claims he has not had them and is defending purely on this basis.
What do I need to do now? Have I a way of preventing him from wriggling out of this claim because of this.
You don't provide enough detail on what's happened so far to say exactly what will happen, but non-receipt of the claim form is not a defence to a claim.
How do you know the defendant is claiming not to have received the claim form? Have you obtained a default judgment that the defendant is trying to set aside?
What typically happens is the claimant gets a default judgment, the defendant then applies to set it aside claiming they've not received the claim. A short hearing is held and a Judge will decide whether the judgment should be set aside or whether it should stand.
If it is set aside (and in certain circumstances it must be set aside, for example sending the claim to an incorrect address) then the defendant will be ordered to file a defence (normally in 14 days) and the claim just proceeds as normal.
As I say without knowing exactly what's happened to date it's difficult to say exactly what will happen, so do provide more detail!
How do you know the defendant is claiming not to have received the claim form? Have you obtained a default judgment that the defendant is trying to set aside?
What typically happens is the claimant gets a default judgment, the defendant then applies to set it aside claiming they've not received the claim. A short hearing is held and a Judge will decide whether the judgment should be set aside or whether it should stand.
If it is set aside (and in certain circumstances it must be set aside, for example sending the claim to an incorrect address) then the defendant will be ordered to file a defence (normally in 14 days) and the claim just proceeds as normal.
As I say without knowing exactly what's happened to date it's difficult to say exactly what will happen, so do provide more detail!
Sorry Andy - more detail;
I issued a MCOL and the particulars of claim on the claim form defaulted to...
I will provide the defendant with separate
detailed particulars within 14 days after
service of the claim form.
I sent this information to him a few days later.
The defendant is saying they have never received the details of the claim, and therefore will defend it.
What are my options?
I issued a MCOL and the particulars of claim on the claim form defaulted to...
I will provide the defendant with separate
detailed particulars within 14 days after
service of the claim form.
I sent this information to him a few days later.
The defendant is saying they have never received the details of the claim, and therefore will defend it.
What are my options?
I presume you can request judgement in default if the required time has elapsed and you've filed the certificate of service for the additional particulars of claim? If you do that then it's up to them to apply properly to set aside a judgment and raise their issues with the court - if you're certain that MCOL had the correct address for the defendant and you're certain they've received the particulars of claim you sent then the court can deem the documents to have been received and look to see if there's a 'proper' defence to the claim.
The defendant will find it difficult to mount a defence with no PoC!
The lack of them will be a gift to him for an application to have it struck out though.
http://www.legalbeagles.info/forums/showthread.php...
http://www.justice.gov.uk/courts/procedure-rules/c...
You need to get cracking on providing them again.
I recommend using SD which is tracked throughout
This will prevent him using the same non-receipt argument.
The lack of them will be a gift to him for an application to have it struck out though.
http://www.legalbeagles.info/forums/showthread.php...
http://www.justice.gov.uk/courts/procedure-rules/c...
You need to get cracking on providing them again.
I recommend using SD which is tracked throughout
This will prevent him using the same non-receipt argument.
Andy_GSA said:
I presume you can request judgement in default if the required time has elapsed and you've filed the certificate of service for the additional particulars of claim? If you do that then it's up to them to apply properly to set aside a judgment and raise their issues with the court - if you're certain that MCOL had the correct address for the defendant and you're certain they've received the particulars of claim you sent then the court can deem the documents to have been received and look to see if there's a 'proper' defence to the claim.
OP, that advice is no doubt well meant but it's not reliable. If the Defendant disputes service on credible grounds then the reality is that you must serve the document before going further. You don't prove service by being "certain" about it. Proof is objective, not subjective.Forums | Speed, Plod & the Law | Top of Page | What's New | My Stuff