Anyone familiar with small claims?
Discussion
I had a contract role almost 2 years ago, the company that employed me have dismissed me on the grounds that I breached contract. They have also taken money from my pay to cover costs. I have started a small claims case to recover the money, citing that it is they who are in breach of contract. The case is due to be heard next week via telephone.
The papers sent by the court indicate that a defence should be submitted no later than 14 days before the court hearing. The defendant has submitted it 9 days before the hearing. How likely Is it that the judge will throw the case out or disregard any evidence presented after the allowed time?
The papers sent by the court indicate that a defence should be submitted no later than 14 days before the court hearing. The defendant has submitted it 9 days before the hearing. How likely Is it that the judge will throw the case out or disregard any evidence presented after the allowed time?
Currently going through the small claim court over another issue .
The fact that they filed their defence late will probably not make any difference , I had similar , it turns out that the 14 day deadline is just used to keep the case moving along , well that’s what I was told when I asked a similar question .
I’m my case I was a defendant and the claimant was told to consider if they wanted to proceed and if so let the court know after 21 days , they took 26 and it made no difference all that happened was that the court order was adjusted .
The fact that they filed their defence late will probably not make any difference , I had similar , it turns out that the 14 day deadline is just used to keep the case moving along , well that’s what I was told when I asked a similar question .
I’m my case I was a defendant and the claimant was told to consider if they wanted to proceed and if so let the court know after 21 days , they took 26 and it made no difference all that happened was that the court order was adjusted .
fiju said:
The papers sent by the court indicate that a defence should be submitted no later than 14 days before the court hearing. The defendant has submitted it 9 days before the hearing. How likely Is it that the judge will throw the case out or disregard any evidence presented after the allowed time?
Are you sure those were the directions provided by the Court? Usually, an Acknowledgement of Service has to be filed 14 days after service of the Claim Form and then the Defence 14 days after that. Then Allocation Questionnaires of whatever they’re called now followed by directions leading to trial. Normally with a small claim, the only directions are filing of all evidence at least 14 days prior to the hearing.Anyway, Judges usually give more leeway in Small Claims and it’s unlikely the Defence is going to be kicked out merely for being a few days late. If you wanted to, you should have made an application to strike out the Defence when it wasn’t filed in time.
In my thankfully limited experience, and as said above, parties in small claims seem to be given a lot of latitude when it comes to dates. I naively thought the various orders by the judge and dates/times things needed to be done by were set in stone, under punishment of death (or maybe just strikeout) if you missed them.
In reality, in the case I was involved with, the claimant ignored various orders and missed various dates and the only thing that mattered in the end was that he didn't even pay the court fee. Obviously when it comes to the court getting its dues the show stops if it is not paid.
That being said, the defendant is not a litigant in person so ought not to be given the same latitude as one. Filing the defence (Witness Statement?) 5 days late doesn't give you as much time to digest it as you ought to have been given.
In my case every time the claimant failed to do something - e.g. complying with an unless order (more than one of these came and went without sanction despite the portentous language) - I emailed the court to point this out. You could perhaps point out that you have received the defence (WS, whatever) late but in reality I'm not sure it would be fatal to the case, sadly.
In reality, in the case I was involved with, the claimant ignored various orders and missed various dates and the only thing that mattered in the end was that he didn't even pay the court fee. Obviously when it comes to the court getting its dues the show stops if it is not paid.
That being said, the defendant is not a litigant in person so ought not to be given the same latitude as one. Filing the defence (Witness Statement?) 5 days late doesn't give you as much time to digest it as you ought to have been given.
In my case every time the claimant failed to do something - e.g. complying with an unless order (more than one of these came and went without sanction despite the portentous language) - I emailed the court to point this out. You could perhaps point out that you have received the defence (WS, whatever) late but in reality I'm not sure it would be fatal to the case, sadly.
Failure to comply with a court direction should, strictly speaking, require the party in default to seek relief from sanctions, but the small claims system runs a bit loosely, as it is intended to be used mainly by people who have no lawyers. In many cases, lateness will not have fatal consequences unless the opposing party is prejudiced by the lateness.
OP: a freebie. If the company argues that you should have made your claim in the Employment Tribunal as a claim based on unlawful deduction from wages, and are now out of time for doing so, the knockout answer to that defence is a case called Rickard v PB Glass, which was my first solo win in the Court of Appeal, waaaaay back when I was young and groovy and not a tired old git. My opponent's wig was as white as mine was, and the three very wise and learned old Judges (all now dead) were super lovely to us, and sent us both a note afterwards saying pleasant things about our advocacy and wishing us happy careers. Nowadays, Court of Appeal Judges, some of whom might be younger than me, mostly tell me to GTFO, but such is War!
OP: a freebie. If the company argues that you should have made your claim in the Employment Tribunal as a claim based on unlawful deduction from wages, and are now out of time for doing so, the knockout answer to that defence is a case called Rickard v PB Glass, which was my first solo win in the Court of Appeal, waaaaay back when I was young and groovy and not a tired old git. My opponent's wig was as white as mine was, and the three very wise and learned old Judges (all now dead) were super lovely to us, and sent us both a note afterwards saying pleasant things about our advocacy and wishing us happy careers. Nowadays, Court of Appeal Judges, some of whom might be younger than me, mostly tell me to GTFO, but such is War!
Durzel said:
...
In my case every time the claimant failed to do something - e.g. complying with an unless order (more than one of these came and went without sanction despite the portentous language) ...
IF an order is a real unless order, then the sanction that is stipulated in the order is applied automatically if the order is not complied with. Thus, for example, if the unless order says "Unless D does X by Y, the Defence shall be struck out", that wins the case for C if D does not do X by Y, and does not apply for and obtain relief from sanction. An order that says "Do X by Y, no further extensions" is not an unless order. I'm a bit of a geek on this subject as I was in the leading case on relief from sanctions (in 2014). In my case every time the claimant failed to do something - e.g. complying with an unless order (more than one of these came and went without sanction despite the portentous language) ...
Breadvan72 said:
Durzel said:
...
In my case every time the claimant failed to do something - e.g. complying with an unless order (more than one of these came and went without sanction despite the portentous language) ...
IF an order is a real unless order, then the sanction that is stipulated in the order is applied automatically if the order is not complied with. Thus, for example, if the unless order says "Unless D does X by Y, the Defence shall be struck out", that wins the case for C if D does not do X by Y, and does not apply for and obtain relief from sanction. An order that says "Do X by Y, no further extensions" is not an unless order. I'm a bit of a geek on this subject as I was in the leading case on relief from sanctions (in 2014). In my case every time the claimant failed to do something - e.g. complying with an unless order (more than one of these came and went without sanction despite the portentous language) ...
The case wasn't struck out until nearly a month later, a week before the hearing was due to take place. I prompted the court after each unless order date had passed without compliance. All in all it felt to me like these orders were like paper tigers, and that it needed me to prompt to the court to get any decisive measure actually applied to the non-compliance.
EDIT: Just digging through my court docs, I received this one after I'd prompted the court about the 2nd unless order being missed:
Court said:
Before District Judge X sitting at the County Court at Y.
Upon the court reading the email from the defendant dated 20 January 2020
IT IS ORDERED THAT
Unless the claimant complies with paragraph 2 of the order dated 24 December 2019 by 4:00pm on 17 February 2020, the claim will be struck out without further order.
Dated 22 January 2020
..so even though he hadn't complied the first time around, even though the order said it would be struck out without further order, he was given another opportunity and a new date to comply, and it was my email that prompted it. That's why I felt that the unless order was basically as useless as the other ones he'd been given and failed to do. I don't know how common that is in small claims.Upon the court reading the email from the defendant dated 20 January 2020
IT IS ORDERED THAT
Unless the claimant complies with paragraph 2 of the order dated 24 December 2019 by 4:00pm on 17 February 2020, the claim will be struck out without further order.
Dated 22 January 2020
Edited by Durzel on Monday 19th October 20:29
Breadvan72 said:
You may have misunderstood what was happening and worried needlessly. The case was struck out one nano-second after the deadline for compliance with the unless order passed. An order reciting that was merely a formality.
Just added to my post above.He had an unless order to file a response to my defence by X. X came and went without him doing it. I prompted the court after nothing happened after this date, and received a letter from the court (which I presume he also got) with a new date to comply by, asking him to do the exact same thing.
So in that particular instance the original unless order was not followed through on.
That sounds to me like an error made either by Court staff or by a DJ who had not read the file properly. A law firm receiving that letter would have written back and said "The case is already struck out - see Order dated X".
Strictly speaking, the case was dismissed on non-compliance with the first unless order. The Court was at that point, to use a forbidden language, functus officio. It had no jurisdiction to make a further order save for an order relieving the other party from sanctions if that party applied for and obtained such an order.
Strictly speaking, the case was dismissed on non-compliance with the first unless order. The Court was at that point, to use a forbidden language, functus officio. It had no jurisdiction to make a further order save for an order relieving the other party from sanctions if that party applied for and obtained such an order.
Edited by anonymous-user on Tuesday 20th October 05:10
In February I received a 'notice of allocation to the small claims track'. It states in there that 'Each party must deliver to the other party and to the court office copies of all documents on which that party intends to rely at the hearing no later than fourteen days before the hearing.'
I called the county court office and asked about submitting evidence. They told me it takes 10 days for it to be put on the system. Seeing as the defendant sent his info in late, it may not end up on the system. I don't know what happens in that case. I asked them about the 14 day deadline and they told me to email them about that and they'll pass it on to the judge. I requested that the defendants evidence and witness statement be disqualified due to missing the deadline. No idea what i'm doing but every little helps...
Thoughts?
I called the county court office and asked about submitting evidence. They told me it takes 10 days for it to be put on the system. Seeing as the defendant sent his info in late, it may not end up on the system. I don't know what happens in that case. I asked them about the 14 day deadline and they told me to email them about that and they'll pass it on to the judge. I requested that the defendants evidence and witness statement be disqualified due to missing the deadline. No idea what i'm doing but every little helps...
Thoughts?
It will make sod all difference how long it takes to get processed, and arguably nor should it. If you’ve posted something to the court by the date and time you’ve been asked to do it, and you’ve got proof of delivery (or an expectation that it would be delivered by that time based on the service used) then you’ve complied with the order. How long it takes the court office to process documents is outside your control.
In my case I phoned the court and asked them what would happen if the claimant phoned up to pay the hearing fee after the deadline had passed, and they simply told me that they wouldn’t ignore the call and that they would process the payment, so in all likelihood the case would proceed as normal.
In small claims at least there is latitude given particularly to litigants in person as it’s assumed this is all new to them, and most people are useless with deadlines etc. The system wants matters to be resolved definitively, it is somewhat antithetical to justice for matters to be resolved by way of strikeouts due to process abuse. it also leaves the door open for matters to be appealed and continue dragging on.
So in short, no, if they’ve complied with the deadline then the internal processing delay - whatever that might be - is not relevant.
In my case I phoned the court and asked them what would happen if the claimant phoned up to pay the hearing fee after the deadline had passed, and they simply told me that they wouldn’t ignore the call and that they would process the payment, so in all likelihood the case would proceed as normal.
In small claims at least there is latitude given particularly to litigants in person as it’s assumed this is all new to them, and most people are useless with deadlines etc. The system wants matters to be resolved definitively, it is somewhat antithetical to justice for matters to be resolved by way of strikeouts due to process abuse. it also leaves the door open for matters to be appealed and continue dragging on.
So in short, no, if they’ve complied with the deadline then the internal processing delay - whatever that might be - is not relevant.
It is unlikely to be fatal to the case. It shows poor conduct but that’s about it. As said the aim of the court is for the matter to be resolved definitively, so striking out because of a process fault doesn’t achieve that.
Depending on the size of the evidence pack one could perhaps argue (on the day) that you’ve been disadvantaged by the late service (assuming you got it late too), but I don’t know how much weight that would have.
I don’t know if judges presiding on small claims cases actually sit and read witness statements / evidence packs before the morning of the hearing.
Depending on the size of the evidence pack one could perhaps argue (on the day) that you’ve been disadvantaged by the late service (assuming you got it late too), but I don’t know how much weight that would have.
I don’t know if judges presiding on small claims cases actually sit and read witness statements / evidence packs before the morning of the hearing.
Edited by Durzel on Tuesday 20th October 18:56
Ah that's a shame. I was hoping I could win on a technicality and save the drama...
I don't suppose anyone here is willing to take a look at my case/contract and advise? I have been told that I have a strong chance of winning by a pro-bono solicitor, however it's always good to have a second opinion.
I don't suppose anyone here is willing to take a look at my case/contract and advise? I have been told that I have a strong chance of winning by a pro-bono solicitor, however it's always good to have a second opinion.
Nobody wins on technicalities. The law is not as silly as some assume. Getting struck out for not complying with an order is not a technicality.
As for advice, that depends. What is the poshest car you drive worth? Do you earn small or high five figures, or six figuresl? To receive charity, you have to deserve it. If you can afford to pay for advice, no freebies.
As for advice, that depends. What is the poshest car you drive worth? Do you earn small or high five figures, or six figuresl? To receive charity, you have to deserve it. If you can afford to pay for advice, no freebies.
Edited by anonymous-user on Tuesday 20th October 19:25
Durzel said:
In small claims at least there is latitude given particularly to litigants in person as it’s assumed this is all new to them
Court of Appeal said:
An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person. It seems to me that, on any view, the fact that a litigant in person "did not really understand" or "did not appreciate" the procedural courses open to him for months does not entitle him to extra indulgence
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