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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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My court case was adjourned 3 weeks ago and the judge served

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My court case was adjourned 3 weeks ago and the judge served an order that the claimant must notify both my self & the court that he wishes to proceed with the application by 13/10 at 4.00pm. I hadn't heard anything by 4.00pm today but when I got home from work there was a letter from the court and at 6.12pm the claimant e-mailed me with his intention of continuing. Is there any case to get the application thrown out, before we get to court, on the basis that the claimant notified me after the deadline set my the judge and court order?
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Hello my name is ***** ***** I will help you with this.
Was the court order an 'unless order' - that is unless the C notify the Court the claim would be struck out?
Customer: replied 2 years ago.
The order form states the following. It is ordered that:1. The claimant with notify the court and the deft by 4pm on 13th October whether or not he is )proceeding the case:a) The case of A90BM307 against him.
b) The application dated 13/4/15 against him.2. If the claimant notifies and court and the deft in accordance with paragraph 1 above then the app will be listed first open date after 6 weeks.
Customer: replied 2 years ago.
A copy of the judgement order is attached for your reference.
Expert:  Ash replied 2 years ago.
No it wont be struck out.
This is because there is no provision for this. Sadly its therefore not enough to get it thrown out as it is simply telling the court whether the case will continue,
I am sorry if this is not the answer you want and certainly not the one I want to give you, but I have a duty to be honest.
Can I clarify anything for you about this today please?
Alex
Customer: replied 2 years ago.
That's fine, I appreciate your honesty.May I ask, why would the judge put a deadline if there is no reprocussions for not sticking to it? Is there no case law available where a case has been struck out due to the conditions of a previous order not being met?
Expert:  Ash replied 2 years ago.
If it was an unless order - ie Unless the Claimant notify the court by x date the case be struck out - that would be different.
There is no sanction in the Order, therefore it can't be struck out.
Does that clarify?
Alex
Customer: replied 2 years ago.
It does clarify slightly, however, would there be a reason why the judge would not make a 'unless order'. Also, is there no consequence at all for missing the deadline that was set by the court?One of the other cases that was being heard alongside mine was thrown out on a technicality as the C served the papers on a fellow defendant my e-mail rather than by post.Finally, the C has e-mailed me stating that the damages he is claiming is based on police action that was held against him. However, although this is on other cases there is no mention of damages caused by police on either the claim form or the particulars. As it is not included in either of these am I right to assume that the judge cannot take these into consideration as part of my case?
Expert:  Ash replied 2 years ago.
Because informing the Court if the case is continuing is normal.
If there had been no evidence filed in breach of a court order the court then MAY make an unless order.
Only the pleaded case can be taken into consideration, nothing else.
Alex
Customer: replied 2 years ago.
The order was made based on the outcome of the previous 2 cases which had been heard. The C had lost and was ordered to pay £54,000 in costs. Although the cases are separate there is a very similar theme throughout and hence the judge made the order for the C to consider whether he wish to continue with the application.In a subsequent e-mail to myself, after the initial hearing, the C has stated that 'just because the court has ordered him to pay costs doesn't mean that he will or in fact can', hence indicating that he is planning to file for bankrupcy if he is unsuccessful and the D will be forced to foot the costs or claim on their insurance to cover this. Is this legal and is this something that the court should be made aware of?
Expert:  Ash replied 2 years ago.
Yes but there was not an unless order - and you didnt appeal the original order.
So there is no chance to do it now. If C does bust then you are not liable or C's costs.
But you should notify the Court of C's intentions.
Alex
Customer: replied 2 years ago.
If C does bust I am still liable for my own costs though and I am loathed to incur anymore of these.What is the best way to notify the court of C's intentions?Up until now, based on the strength of C's case and advise from friends who are solicitors I have been a litigant in person, however, as the case is being heard in the High Court I am unsure as to whether to get professional representation.A real mess really, I was hoping that the tardy nature of the C's would see an end to the matter but obviously that is not the case so looks like I will have another day wasted going to court :/
Expert:  Ash replied 2 years ago.
You are liable for your own costs UNLESS they can be recovered from C. Your retainer will mean you are liable. But if you are in person you wont have you legal costs.
If its heard in the High Court I would get representation.
Does that help?
Alex
Customer: replied 2 years ago.
He hasn't got representation either as he cannot find a lawyer who will take his case on as it is so absurd!I realise that I am liable for the costs which is incredibly irritating as the case really as no merit at all, which has been proved with the 2 previous judgements. However, I guess that the C has a right to a free & fair trial!
Expert:  Ash replied 2 years ago.
You can apply for summary Judgment, that is an option to end it quick.
Does that clarify?
Alex
Customer: replied 2 years ago.
He has applied for summary judgement already and the judge was not very happy about this.
Expert:  Ash replied 2 years ago.
Ok - but you can do that if there is no claim against you.
Alex
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