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Alice H
Alice H, Solicitor/Partner
Category: Law
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Experience:  Partner in national law firm
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I went to small claims court over a dispute about a bill that

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I went to small claims court over a dispute about a bill that was larger than original verbal quote, in the courts order detailing what both the claimant and defendant should do it stated that all paperwork to be sent to each other and the court by a certain date and that if these things weren't done by that date it clearly stated that it SHALL be struck out and the court slot SHALL be vacated and the judgement SHALL be entered for the party not in default. The claimant didn't adhere to the order yet the judge still allowed the hearing and extra evidence was used by the claimant, it was awarded to the claimant to which I appealed under the grounds it should have been struck out as detailed above. I have a hearing in a couple of weeks is there anything I should do or get for this appeal hearing, any advice will be gratefully received
Submitted: 3 years ago.
Category: Law
Expert:  Alice H replied 3 years ago.

Alex Hughes :

My name is***** and I'm happy to help with your question today. I need to ask you some preliminary questions to be able to help you.

Alex Hughes :

Are you able to attach a copy of the order? You csn attach documents using the paperclip in the toolbar above. You can redact names if you wish.

Alex Hughes :

Got it. Looking now.

Customer:

hi alex please see attached there are 2 pages

Alex Hughes :

Yes. Got them.

Alex Hughes :

Did you comply with the order? And what reason did the other party give for non-compliance?

Alex Hughes :

Also how late was the other party?

Customer:

i complied and sent all my info to him and the court on the final day that was stated on the order, he was 5 days late and gave no reasons only that he was late because he only got my statements and defence through on the last possible date.

Alex Hughes :

OK. There is a recent court of appeal judgment which deals with late service of witness statements etc which I will locate for you.

Customer:

thanks

Alex Hughes :

I assume in your appeal you will rely on CPR 3.8 which states that where a party has failed to comply with a rule, practice direction or court order, any sanction for failure to comply imposed by the rule, practice direction or court order has effect unless the party in default applies for and obtains relief from the sanction. Added to this is CPR 3.9 which states that adefaulting party can apply for relief from sanction. I also assume you will argue that the default position under 3.8 must apply because no application was made under 3.9. Further to this you will no doubt argue that the Judge erred in law by not striking out/entering judgment in the absence of an application under 3.9.

Alex Hughes :

These issues were considered in a case called Chartwell Estate agents which I am now attaching. The Court of Appeal basically softened the rules this allowing a defaulting party to proceed with his claim even though they had failed to comply with an order. You need to have this case to hand for your appeal and consider the issues raised because this is recent relevant case law which will come up at the hearing. In order to succeed you have to persuade the appeal court that CPR3.8 and 3.9 must be applied strictly and draw a distimction to the case law.

Alex Hughes :

Here is the case: http://www.bailii.org/ew/cases/EWCA/Civ/2014/506.html --- the judge who deal with your case may well have had this in mind.

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