Small Claims Court - missed an evidence deadline
Discussion
I have an ongoing claim against a "supplier" and started a claim last autumn using the online process.
He denied liability sending in doctored e-mails as evidence (!!!) so I had sent all my evidence including screen grabs of the original undoctored e-mails - he was bang to rights and was actually lying to the court.
A judge called a hearing "to review and potentially strike out the defendents evidence" - I could not attend the date and wrote to the court to re-arrange. I didn't hear back for several weeks but 2 weeks after the scheduled hearing I received a note from the Court to say the claim had been "Struck out" due to non-attendence.
How can I get the process resumed?
TIA.
David
He denied liability sending in doctored e-mails as evidence (!!!) so I had sent all my evidence including screen grabs of the original undoctored e-mails - he was bang to rights and was actually lying to the court.
A judge called a hearing "to review and potentially strike out the defendents evidence" - I could not attend the date and wrote to the court to re-arrange. I didn't hear back for several weeks but 2 weeks after the scheduled hearing I received a note from the Court to say the claim had been "Struck out" due to non-attendence.
How can I get the process resumed?
TIA.
David
You probably can't. You failed to attend the hearing. You can't assume that a hearing will be adjourned just because you have asked for an adjournment. Civil Courts are generally rather down on adjournments these days.
You might be able to issue a fresh claim, but might be hit with an abuse of process application, especially as your last claim was struck out for procedural default.
Why did you bother to start a claim if you were going to be so dilatory about pursuing it? You shouldn't start a claim unless you are prepared to attend to it and see it through to the end.
You might be able to issue a fresh claim, but might be hit with an abuse of process application, especially as your last claim was struck out for procedural default.
Why did you bother to start a claim if you were going to be so dilatory about pursuing it? You shouldn't start a claim unless you are prepared to attend to it and see it through to the end.
Breadvan72 said:
You probably can't. You failed to attend the hearing. You can't assume that a hearing will be adjourned just because you have asked for an adjournment. Civil Courts are generally rather down on adjournments these days.
You might be able to issue a fresh claim, but might be hit with an abuse of process application, especially as your last claim was struck out for procedural default.
Why did you bother to start a claim if you were going to be so dilatory about pursuing it? You shouldn't start a claim unless you are prepared to attend to it and see it through to the end.
Because the hearing was scheduled for a day that was considerably inconvenient - I had my Mum in hospital and it was also in my busiest 2 weeks of the year!You might be able to issue a fresh claim, but might be hit with an abuse of process application, especially as your last claim was struck out for procedural default.
Why did you bother to start a claim if you were going to be so dilatory about pursuing it? You shouldn't start a claim unless you are prepared to attend to it and see it through to the end.
BTW thanks for the bullocking - very much appreciated.
David
Breadvan72 said:
What did you expect? A prize?
No - constructive comment and info, not a trip to the headmasters office.I should add that I had called the court and was told that an adjournment could be made but they needed a written application to do so.
Perhaps relying on this without rechecking on the day was an oversight, but your "tone" of response is unnecessary.
Do you sympathise with the fraudulent supplier and his contempt of court?
David
sumo69 said:
Do you sympathise with the fraudulent supplier and his contempt of court?
If it was contempt (perjury, more like), then surely his allegedly false evidence would have been contested and other evidence placed before the court? But, no - that evidence went uncontested and unchallenged to the court...You could try applying to the court to have the judgement set aside for some good reason -- lay out your facts and throw yourself on the mercy of the judge. Pointing out the court advised that course of action and you are a litigant in person might help -- seem to get away with all sorts of stuff in my experience.
Sorry not to be quite as dismal as BV in my advice.
Sorry not to be quite as dismal as BV in my advice.
7db said:
You could try applying to the court to have the judgement set aside for some good reason -- lay out your facts and throw yourself on the mercy of the judge. Pointing out the court advised that course of action and you are a litigant in person might help -- seem to get away with all sorts of stuff in my experience.
Sorry not to be quite as dismal as BV in my advice.
Thanks - I will look into this to see how to get the ball rolling.Sorry not to be quite as dismal as BV in my advice.
David
sumo69 said:
7db said:
You could try applying to the court to have the judgement set aside for some good reason -- lay out your facts and throw yourself on the mercy of the judge. Pointing out the court advised that course of action and you are a litigant in person might help -- seem to get away with all sorts of stuff in my experience.
Sorry not to be quite as dismal as BV in my advice.
Thanks - I will look into this to see how to get the ball rolling.Sorry not to be quite as dismal as BV in my advice.
David
The only thing you can do is to apply to request relief from the strike out. For that to have any chance you will need a heavy application showing that you are not only disenfranchised, including your letter to show you could not attend, and that you have serious evidence to support your case.
That said, BV is somewhat of an expert in this field, and from what you've said, chances of success are not great.
Edited by JustinP1 on Thursday 3rd July 00:22
sumo69 said:
How can I get the process resumed?
How long ago did you receive notification?You need to read up on CPR 3.9. The court should consider "all the circumstances" and may even consider the merits of the case - at this point you want to be referring to the doctoring of evidence by the other side.
You need to provide evidence to support your application, i.e. you want a witness statement setting out the issues you had with your ill mother and so on.
"Defense [sic] Brief" - what's that? Civil practitioners act for whichever side retains them.
The advice above about setting aside a judgment is misplaced. OP, what you would need to do is apply for relief from sanction. Because you did not show up at the hearing, the sanction of striking out the claim was applied. You need to show a good reason for the sanction to be set aside, but "I wrote in asking for an adjournment and assumed that the an adjournment would be granted" isn't a good reason. The Court is not likely to be impressed by your apparent assumption that the system operates at your convenience.
Since the Mitchell case last year the Courts have been very tough on procedural defaults. The old lax approach has been abandoned, and the same principles apply to litigants in person as to those who are represented. You can't just take it for granted that you will get what you want, and the system can only deliver you a result if you operate the system correctly and take responsibility for your own stuff.
The Court of Appeal is revisiting Mitchell in a judgment to be given tomorrow afternoon.
The advice above about setting aside a judgment is misplaced. OP, what you would need to do is apply for relief from sanction. Because you did not show up at the hearing, the sanction of striking out the claim was applied. You need to show a good reason for the sanction to be set aside, but "I wrote in asking for an adjournment and assumed that the an adjournment would be granted" isn't a good reason. The Court is not likely to be impressed by your apparent assumption that the system operates at your convenience.
Since the Mitchell case last year the Courts have been very tough on procedural defaults. The old lax approach has been abandoned, and the same principles apply to litigants in person as to those who are represented. You can't just take it for granted that you will get what you want, and the system can only deliver you a result if you operate the system correctly and take responsibility for your own stuff.
The Court of Appeal is revisiting Mitchell in a judgment to be given tomorrow afternoon.
Sorry, but BV is correct.
However, my experience of these matters (and i'm a solicitor who deals with these types of claim as my job) is that Court's are "sometimes" very forgiving to Litigants in Person, which is what you are.
I'd try making an application to the Court (Form N244) and set out why you missed the hearing with evidence of your mothers hospital appointment. It'll cost you to do it (check the Court website for the fee) but may be worth it depending on the value of your claim.
However, my experience of these matters (and i'm a solicitor who deals with these types of claim as my job) is that Court's are "sometimes" very forgiving to Litigants in Person, which is what you are.
I'd try making an application to the Court (Form N244) and set out why you missed the hearing with evidence of your mothers hospital appointment. It'll cost you to do it (check the Court website for the fee) but may be worth it depending on the value of your claim.
The problem that the OP faces is that he has to show a good reason for not turning up despite not having received a response to his application for an adjournment. He should have assumed that the hearing was on unless and until he heard to the contrary, but seems to have treated an application as being the same as a decision.
The OP might get lucky if the Court misplaced the application to adjourn. Cuts to the Court service have been far reaching, and the efficiency of the service has been pushed to or past breaking point. A High Court Master (that's a form of first tier Judge dealing mainly with procedural stuff) told me yesterday that he reckons the RCJ in London currently has about one sixth of the staff that it needs to operate properly. That's the flagship court, so the position in county courts is likely to be worse.
The OP might get lucky if the Court misplaced the application to adjourn. Cuts to the Court service have been far reaching, and the efficiency of the service has been pushed to or past breaking point. A High Court Master (that's a form of first tier Judge dealing mainly with procedural stuff) told me yesterday that he reckons the RCJ in London currently has about one sixth of the staff that it needs to operate properly. That's the flagship court, so the position in county courts is likely to be worse.
Breadvan72 said:
The problem that the OP faces is that he has to show a good reason for not turning up despite not having received a response to his application for an adjournment.
In the relief from sanction situation I am appealing against at the moment it would suggest that the OP has a chance.Facts were that the Defendant's solicitors filed the defence late, and not only late, to the wrong court. Judgment in default was given in the meantime.
The application offered no reason for the lateness, or their filing at the wrong court. They put forward a procedural argument that since the defence ended up at the right court the day before judgment in default was given, then judgment was a mistake.
The Judge didn't accept this, and rules judgment was regular.
Then, despite the grounds of the application procedural ones, and there being no argument for the good reason for default, nor argument for relief, he then started considering granting relief from sanction on his own volition.
In short, despite the defence being wrong in law, by his own admittance, his order was that because the sum involved was 'sunstantial' (£10,200) that the 'overriding objective' should be that leave should be given to defend the claim.
I will email you something after 2PM tomorrow that may interest you, Justin. I cannot tell you what it is until then.
The fact that a claim is substantial is not in itself a valid reason for granting relief from a sanction, but may be one factor going to the Court's discretion. Having said that, it does sound as though the default in your case was a relatively minor one, and the system is supposed to be about civil justice, not trip wires and minefields. I still don't have that much sympathy for the OP, because unless the Court screwed up in some way the cock up (which wasn't of the silly trip wire kind) seems to be all of his own making.
The fact that a claim is substantial is not in itself a valid reason for granting relief from a sanction, but may be one factor going to the Court's discretion. Having said that, it does sound as though the default in your case was a relatively minor one, and the system is supposed to be about civil justice, not trip wires and minefields. I still don't have that much sympathy for the OP, because unless the Court screwed up in some way the cock up (which wasn't of the silly trip wire kind) seems to be all of his own making.
Edited by anonymous-user on Thursday 3rd July 10:07
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