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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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i have recently issued a substantial claim against my former

Resolved Question:

i have recently issued a substantial claim against my former solicitors for professional negligence in their handling of a conveyancing transaction. i have been dealing with it as an lip.
i issued protective proceedings for limitation purposes followed by a detailed letter of claim and then poc. the other side have now responded as per the pre action protocol. in their reply they are basically outlining all the potential serious obstacles i will face i.e. limitation, exaggerating losses and ex turpi. they offered me drop hands but i declined. they have now made an application to transfer it to the mercantile court and to for summary judgment. i have now heard back from the court ordering 1. do i have any objection to the claim being transferred to the mercantile court. 2. if not the claim will go back in front of the judge to give directions for determination of the summary judgment application.
my questions are 1. are then any pitfalls against the claim being transferred to the mercantile court? 2. what can the judge do when he receives the papers? 3. what sort of directions can i expect? 4. do i need to do anything before i receive directions i.e. do i need to instruct a barrister now, if yes what should i instruct him to do?
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Alex Watts :

Hello my name is ***** ***** I will help you with this.

Alex Watts :

For now please let me know the value of the claim?

Customer:

over 400k

Alex Watts :

Then it would need to be transferred to a specialist Court.

Alex Watts :

Given the value.

Alex Watts :

1. I don't think given the value you can object to the transfer. There are no real pitfalls.

Alex Watts :

2. He will hold a CMC and give directions

Alex Watts :

3. If there is to be an application for summary judgment then the Judge will say any application should be made by x date.

Alex Watts :

The Judge will then give directions for disclosure, evidence exchange, costs management etc

Alex Watts :

4. There is nothing you need to do beforehand.

Customer:

hi alex

Alex Watts :

I would instruct a Barrister at an early stage so they can make sure your case is good, given the value.

Alex Watts :

There are several portals and websites you can do this on:

Alex Watts :

http://www.mybarrister.co.uk/

Alex Watts :

http://www.clerksroomdirect.com/

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

so when a defendant applies for summary judgment is it any different from the claim running as normal?

Alex Watts :

No. That application will be heard which will either win or lose.

Customer:

sorry you said above the judge would give directions etc

Alex Watts :

Yes.

Alex Watts :

The Judge would give directions as to what is to happen to the claim

Customer:

so what do you mean when you say the application will either win or loose?

Alex Watts :

If they make an application for SJ - that will either succeed in which case your claim ends, or it fails in which case the claim continues

Customer:

sorry i'm a little confused. they have now made an application for summary judgment. i at this stage have not submitted any documentation apart from letter before claim, poc etc. do i still get a chance to defend their application or doe the judge just consider their application?

Alex Watts :

Ok, if they have now made an application for SJ then THAT application will be heard first.

Alex Watts :

You will need to respond to that application by filing a statement and supporting documents as to WHY you have a claim

Alex Watts :

The Judge will set that matter down for hearing

Alex Watts :

So the Judge will transfer it and set a hearing date for the application

Customer:

hi, so the judge will not simply decide the claim on their application alone?

Alex Watts :

For the application only yes

Alex Watts :

Summary Judgment is to see whether your claim has any merit whatsoever

Alex Watts :

If it does, no matter how weak the case will proceed and be listed for a full trial

Customer:

i understand that. the defendant has made allegations that i can prove are incorrect. will the judge still give directions before the application hearing i.e. filing of statements etc? if the claim for summary judgment is dismissed who pays the costs?

Alex Watts :

Yes.

Alex Watts :

If dismissed THEY pay the costs

Customer:

hi does that include all my costs i.e. barrister? if i do have a claim and my barrister agrees is the other side wtill likely to go ahead with the application?

Alex Watts :

For that hearing yes.

Alex Watts :

I cant' say whether they will still proceed, its up to them

Customer:

with an application like this is it all done by paperwork or does everyone attend, is it a mini trial, would i be cross examined?

Alex Watts :

Everyone attends and it is done on submissions. No cross examination

Customer:

finally with regards ***** ***** if i go ahead and instruct a barrister to defend the application and following my response the defendant withdraws their application can i still claim my costs back from the other side?

Alex Watts :

Yes

Customer:

alex thanks for your help. any idea of the timescales involved in an application like this in the mercantile court and how long would an application take. are the statements limited like witness statements?

Alex Watts :

Probably 1 month or so to be heard. Yes just witness statements

Customer:

many thanks

Ash and other Law Specialists are ready to help you

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