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Joshua
Joshua, Lawyer
Category: Family Law
Satisfied Customers: 26004
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Hi, my solicitor received by fax a Notice of Hearing for me

Resolved Question:

Hi, my solicitor received by fax a Notice of Hearing for me to attend court on Wednesday 19th March 2014 and an Acknowledgement of Service (part 8 claim form) for me to complete. The fax was received on Monday 10th March 2014, my solicitor immediately e-mailed me a copy and contacted me that same day.

As I did not have £5000 to pay up front for my solicitor to help me with this case - we agreed that I would represent myself at the hearing. My solicitor passed me all the original paperwork on Friday 7th March and went through the acknowledgement of service form with me, I am in the process of completing this form but there is a section of this form that I need clarification on :-

Section E - I intend to rely on written evidence : although the claimants claim form is dated the 16/12/13 - this was not issued to my solicitor until the 10th March 2014, which means that I only literally have about 9 days to submit my response. I can confirm that I did not receive any communication whatsoever from the claimants solicitors. Because of this my solicitor indicated that i should request an extension of 14 days to prepare my case.

The form is confusing me because I have noticed that if I tick the section that I intend to rely on written evidence "my evidence: will be filed within 14 days as agreed with the other party(s). A copy of the written agreement is attached to this form" - does this mean that I have to now contact the claimants solicitor to give me this written agreement or should I send the acknowledgement of service form to the court and copy to the claimants solicitor and ask for the extension when I attend court on Wednesday morning ? Please help me if you can !!
Submitted: 3 years ago.
Category: Family Law
Expert:  Joshua replied 3 years ago.

Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

May I ask if the claimant has served any written evidence on which he intends to rely upon you with the part 8 claim form please?

Joshua :

Is there any dispute of fact between you and the claimant?

Joshua :

Presumably the hearing on Wednesday is a directions hearing?

Customer:

Hi Joshua, yes the claimant initially indicated on his claim form dated 16/12/13 that details of his claim will follow separately. I only received his evidence from my solicitor on Tuesday 11th March 2014.

Joshua :

Thanks. When was the claim form issued? Was it actually issued on 16 December or was it just completed and then sat on only just being issued last week?

Customer:

Yes, I am intending in contesting his claim and I also intend to make a counter claim against him.

Customer:

Yes, I believe the hearing on Wednesday is a directions hearing.

Joshua :

Is there a dispute of fact as set out by the claimant between you and the claimant?

Customer:

My solicitor indicated to me that it looks like the claim form was completed on 16th December and sat on and only being issued to my solicitor, (and not me) during week commencing 10th March. which does not give me the 14 days required to submit my evidence, it does not help now that I will have to represent myself at this hearing. I can confirm that I did not receive any correspondence from the claimants solicitors prior to receiving the claim form on 11th March 2014.

Customer:

Yes there is a dispute of fact in regards XXXXX XXXXX he alledges that I owe him and the deposit which was given to me at the time I purchase my house in 2007 - which at the time I was led to believe that it was a gift. The claimant is my ex-partner whom I asked to leave the property in December 2009. In 2012 his solicitor sent me a Declaration of Trust which did not exisit at the time i purchased my property. Because I was put under pressure to sign it - my solicitor at the time advised me not to.

Joshua :

Thanks. So to be clear the decision for the court will be whether or not the deposit was a gift or not but you otherwise essentially accept the facts as the claimant states them in terms of money being paid to you. Is there any significant fact in the claimants statement other than as to whether or not the deposit was a gift you dispute?

Customer:

He provided money to me of £39k towards the purchase of the property which he initially owned and he continued to live with me. in addition he is also claiming adhoc amounts (ie. holidays, home improvements, payment towards bills) amounting to £38k. There was no written agreement that I owe this money to him. All he is saying is that he loaned me the money and now wants to register his interest against my property. This was why his solicitor and himself were trying to get me to sign a declaration of trust in 2012. My question is if he intended to claim back the £39k why was there not a document at the time in 2007 to state this?

Customer:

There is no written agreement that I owe the £39k and the £38k and in addition he is claim interest on both amounts.

Joshua :

Sorry for the delay in reverting to you... I had to take a phone call. Is the claiman claiming there is?

Customer:

there is no evidence of a written agreement in the information pack i have received and he supplied to the court and it is just his word against mine, nothing was ever documented that i signed

Joshua :

thank you. Based upon what you say, you may wish to challenge the use of the part eight procedure. The part eight claim procedure is used for matters which do not involve a substantive dispute as to fact but rather where both parties agree on the facts but disagree on a conclusion. from what you say here, you dispute one or more of the facts claimed by the claimant and accordingly you may wish to give consideration to completing section D of the knowledge meant form disputing the use of the part eight procedure

Customer:

all he has supplied are photo copies of phone bills without itemised calls. also copy of contractor works requested in my name which i did have no quotation for and private medical care insurance taken out by him corporately that had still included me even though i advised him to cancel when we split up

Joshua :

in respect of written evidence, you are required to submit written evidence within 14 days from date of service of the claim form. The date the solicitor received it would count. however, it is possible to ask the court for permission for an extension. It is not sufficient simply to ask for an extension because you don't have time to prepare the written evidence. You will need to demonstrate a reason why you cannot submit the evidence within the timeframe such as other unavoidable commitments or a procedural error on the part of the claimant. The claimant should submit all written evidence he intends to rely on with the part eight claim form and if he has not done so, this can be a reason potentially to ask for an extension

Joshua :

you can consider asking for an extension at the directions hearing. You can also raise the issue of your dispute as to the use of the part eight claim. at the hearing. You do not need to return the acknowledgement form before 14 days from the date of service. It is also possible to reach an agreement with the claimant as to an extension of up to 14 days which would need to be in written form as the agreement would need to be submitted to the court

Customer:

ok, I currently have the

Customer:

ok, but I still have to submit the acknowledgement form before the hearing date ! I currently have the acknowledgement of service form which I was going to post today, but what i needed to know is whether or not i can make a note on this form that i did not receive correspondemce on time due to procedural error on claimants part and request an extension to provide my evidence (as only had 7/8 days).

Joshua :

you can make such a request by way of a covering letter to the court and simply attach this with a staple to the acknowledgement form.

Joshua :

the civil procedure rules provide that acknowledgement does not have to be made using form N210 but can made by letter and / or the practice form.

Joshua :

is no difficulty with you asking the court for an extension citing reasons for your request by way of an accompanying letter

Customer:

The 8 part claim form and the notice of hearing from the claimants solicitor was received by my solicitor on the 10th march 2014, but his written evidence followed separately which i received from my solicitor on Wednesday 12th march 2014. So at what point am I given the time to prepare and present my written evidence before the hearing date on Wednesday 19th March ? how is this fair Can you advise on what my best course of action would be?

Joshua :

the civil procedure rules require the claimant to submit written evidence he intends to rely on with the claim form. Accordingly, the failure to submit evidence with the claim form as required by CPR rule 14 gives you two causes for complaint:

Joshua :

1) the failure by the claimant to serve the claim form with written evidence he intended to rely on is a breach of rule 8.5 and you can ask the court for a declaration that the claim form has been incorrectly served;

Joshua :

2) if the court is not willing to declare that the claim form is invalid because of breach of rule 8.5 then you can ask the court for an extension of time to wish to respond to the claimant's claim as a consequence of their failure to serve written evidence in accordance with CPR rule 8.5

Joshua :

3) You can cite any other supporting reasons in respect of your request for an extension as above;

Joshua :

4) you can dispute the use of part eight on the basis that there is a substantive dispute of fact

Customer:

Thank you so much - this is a great help. because it is a legal document - I wanted to get it right as I need to defend my case fairly and did not want the court to dismiss my acknowledgement form if I had completed incorrectly.

Joshua :

A pleasure. if I can assist with anything further please do not hesitate to revert to me

Customer:

The claimants solicitor in correspondence has mentioned mediation as a resolution - I am not sure if this will work, as i have had numerous conversations with my ex-partner to try to resolve this, with him there is no room for compromise, it is all his way or nothing at all - so in effect I don't get a say, he has harrassed me, my health has suffered due to all of this. Are there any other options that you can suggest so that I can put closure on this ? if it goes to mediation what is the likely cost of this ?

Joshua :

mediation can work where parties are prepared to compromise. If parties are not prepared to compromise then mediation is unlikely to succeed. Mediators will typically charge upwards of £80 per hour and therefore costs depend largely on how long mediation is likely to take. They can be cheaper than for litigation involving solicitors and court fees and accordingly if you feel there is any attention benefit, it is worth considering

Customer:

in regards XXXXX XXXXX Service of Acknowledgement form, is there another option that it can be handed in on the date of the court hearing ?

Joshua :

if there is a substantive dispute as to fact as discussed above, then you may wish to ask the court to strike out the part eight claim on the basis that the claimant must issue a part seven claim which is the appropriate claim to use where there is a dispute as to fact between the parties. he issues such a claim using form N1 but this is for him to do rather than you

Customer:

This is great, thank you so much for your help. Kind regards, Diane

Joshua :

A pleasure. I hope all goes well with your directions hearing

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though.

Customer:

Thank you - fingers crossed it goes well.

Joshua :

Best wishes

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