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Chris_H
Chris_H, Solicitor
Category: UK Law
Satisfied Customers: 1082
Experience:  Solicitor with 10 years experience in Commercial, Property and Consumer Legal Isssues
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I made a claim – in the small claims county court – for an

Customer Question

I made a claim – in the small claims county court – for an order for (1) £4,800 unpaid commissions and (2) that the company I had been working for should resume providing me with commission statements, under the terms of the agreement, which they had been failing to do (without the commission statements, I can never know how much I am owed). The first hearing was adjourned because the defendant had not properly filed what he wanted to make use of at the hearing.

I live in Spain and so travelling to the hearing in Birmingham is a tortuous and expensive process but the overall monies owed to me, I suspect, once I received commission statements that have been with-held, approach £15,000 to £20,000 so I am feeling it worthwhile, overall. The defendant office is around the corner in the centre of Birmingham and so he does not give a jot about adjournments.

At the hearing of 4 June 2013 , which was set for two hours, only for the district judge to find that the defendant had not filed a witness statement and was wholly and time consuming argumentative about his rights to present his case, without any explanation of a number of documents he had produced, which had not even been referred to in his defence. As part of the defendant’s rhetoric was to introduce new issues, which had never been heard of in these matters before, we prepared a fresh written statement and papers in respect of those new matters and made sure that we had filed them ahead of the 18 June 2013.

The matter therefore was inevitably adjourned to the 3 September 2013 and the increasingly testy district judge who advised both parties that the court was running behind in its paperwork, so he would warn now of his order that we should both produce whatever papers we required to be rely on, including the witness statement, by 4.00 o’clock on the 18 June 2013.

We filed ours on 9th and they are recorded on the Court system as having arrived. We have since seen or heard nothing from the defendant however.

The court order itself – as predicted by the Deputy District Judge – was significantly delayed and did not reach us until the 1 July 2013, almost two weeks after the date that the judge had ordered paper documents to be served and filed.

What we are concerned about is that when we arrive on the 3 September 2013, (having again travelled from Spain and stay in a hotel) that the defendant will once again not be ready.

We anticipate him for example, pretending that as he did not receive the court order until 1 July 2013, he was unable to deal with the serving and filing by the 18 June 2013.

Three questions please ;

1. What does file and serve actually mean? Should we have received a copy of each other documents (we sent our papers both to the court and the defendant).

2. Is there anything we can do – such as applying for his defence to set aside! – if he has failed to obey the Deputy District Judge’s instruction and serve papers (either and or on the court and ourselves, whichever it is he is required to do).

3. What can we ask the judge to do, if we again arrive at court, on the 3 September 2013 to find that he is unprepared or that he has his witness statement and other documents with him, which we will not have had the opportunity to see, so will not be properly able to answer.
Submitted: 1 year ago.
Category: UK Law
Expert:  Chris_H replied 1 year ago.

Chris_H :

Hello and welcome to just answer. I will deal with all of your questions in turn.

Chris_H :

1. What does file and serve actually mean? Should we have received a copy of each other documents (we sent our papers both to the court and the defendant).

Chris_H :

File and serve means filed at court and served (i.e. sent) to the other party.

Chris_H :

2. Is there anything we can do – such as applying for his defence to set aside! – if he has failed to obey the Deputy District Judge’s instruction and serve papers (either and or on the court and ourselves, whichever it is he is required to do).

Chris_H :

You can apply to court for an 'unless order' which is an order stating that unless he complies with the order his defence will be struck out.

Chris_H :

3. What can we ask the judge to do, if we again arrive at court, on the 3 September 2013 to find that he is unprepared or that he has his witness statement

Chris_H :

The judge could order that such documents are not admissible (although it will really depend on the judge); or

Chris_H :

if it was necessary for an a further adjournment you could have a good argument that the defendant should pay your costs (are you acting in person? ) in any event.

Chris_H :

'In any event' means irrespective of the outcome of the case the defendant pays your costs for the adjourned hearing.

Chris_H :

Hope that assists. Let me know if you have any queries.

Customer:

That is very helpful thank you.

Customer:

I have used the small claims court in order to avoid solicitor costs, so have not legal costs other than those of the court.

Customer:

The costs that do concern me in what I see as a deliberate strategy to obtain adjournment after adjournment (the next hearing has been set at 4 hours because the defendent talked out the last 2 hour hearing) are my costs of travelling from Spain to England and then train and hotel costs - wasted becuase the defendant is not doing what the court orders, and we are.

Chris_H, Solicitor
Category: UK Law
Satisfied Customers: 1082
Experience: Solicitor with 10 years experience in Commercial, Property and Consumer Legal Isssues
Chris_H and 5 other UK Law Specialists are ready to help you
Customer: replied 1 year ago.

That is very helpful thank you. (Something went wrong with my attempted first reply to your final comment).


 


I have used the small claims court in order to avoid solicitor costs, so have not got 'legal costs', to claim other than those of the court.


 


The costs that do concern me, in what I see as a deliberate strategy to obtain adjournment after adjournment (the next hearing has been set at 4 hours because the defendent talked out the last 2 hour hearing), are my costs of travelling from Spain to England and then train and hotel costs - that would again be wasted - because the defendant is not doing what the court orders, and we are.


 


Can I hold him responsible for these costs? Either asking for them at the hearing, or invoicing him in relatin to the work i did for him under an agreement he has breached. (He was my customer employing my services)

Expert:  Chris_H replied 1 year ago.

Hello and thanks for your reply.

 

I'm slightly confused by your last point, "invoicing him in relating to the work i did for him under an agreement he has breached. (He was my customer employing my services)"

 

Is this the matter that is the subject of your claim or a separate matter?

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