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Jo C.
Jo C., Barrister
Category: Law
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Experience:  Over 5 years in practice
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We are defendant in a case between our company and a subcontractor

Customer Question

Hi
We are defendant in a case between our company and a subcontractor whom we employed to undertake some aspects of a project, but who did not complete the job, we were subsequently dismissed from the project and were not paid.
The process of the paperwork of the claim has been a saga. We did not ever receive a claim form, because the claimant sent it to the wrong address. We therefore received a default judgement, because we knew nothing about it, and we subsequently got this set aside. At the hearing, the Judge instructed the Claimant to resend the form to us, then for us to submit a defence. However, the direction regarding the re-sending of the claim was omitted from the Order, although this should have been obvious, as the whole point of the hearing, which was ruled in our favour, was that we had never received the claim.
The Claimant did not resend his claim, so we were unable to send our defence. We called the Court and explained, but they said to submit a defense based upon emails etc that had been exchanged at the time, in order to satisfy the dates of the order, which we did.
As the trial date approached last November, it was allocated to Fast Track, we did not receive a paginated bundle. We called and wrote to the Court to inform them. However, the trial was cancelled the day before due to lack of time by the Court. The trial was rescheduled to April this year, but despite both ourselves and the claimant turning up, we were again told that there was lack of judicial resources. Both parties were taken into a room by a judge, and it was explained that it was unlikely that our case could get heard. I told the judge that we had never received a paginated bundle, nor in fact a claim form. The claimant vehemently denied that this was the case, and that he could prove it with a receipt of recorded delivery. This, strangely, was not available, nor has been provided since. The judge proceeded to adjourn the case for another day, but warned the claimant that if he had not served a bundle, it was likely that his case would be dismissed. He asked if he could submit another, but was told that it was not as straightforward as that, he would have to ask the court for permission.
We subsequently received a date of 13th November for the revised trial date, and we also received a bundle by registered post directly from the claimant a few days ago.
My question is, can we insist that he produces his evidence of the sending of the 'ficticious' bundle, and if he cannot prove as such, that the case be dismissed? We have already wasted far too much time on this, and to have it drag on for another 6 months seems ridiculous. We are 100% certain that he did not send it, as his attention to detail and overall careless attitude was what led to our project becoming a disaster in the first place. The judge stated to the claimant that Fast Track rules are very strict and must be adhered to.
Thank you
Submitted: 7 months ago.
Category: Law
Expert:  Ben Jones replied 7 months ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.
Customer: replied 7 months ago.

What further information do you require please?

Expert:  Ben Jones replied 7 months ago.
Apologies, I picked up this question in error, so will opt out and allow others to deal with it - someone will hopefully be in touch soon, please do not reply in the meantime. Thank you
Expert:  Ash replied 7 months ago.
Hello my name is ***** ***** I will help you with this.What is it you would like to know about this today please?Alex
Customer: replied 7 months ago.

My question above, is can we ask the Court to insist that the Claimant produces evidence that he sent us the bundle, as he stated to the Judge that he had sent it , and has proof that he sent it recorded delivery. We know that this is false. The Judge stated that if the Fast Track rules had not been adhered to, and the bundle had not been sent, then his case would be struck off. Can this be clarified prior to us having to attend the next trial date in November?

Expert:  Ash replied 7 months ago.
Have you now had a bundle please?
Customer: replied 7 months ago.

Yes, we have received a bundle just last week, which was a couple of weeks after the second adjourned Trial date. However, I do not know if the Claimant adhered to the correct procedure before sending it. The Judge explained that if a bundle had not previously been sent, then the Claimant had to apply to the Court for permission to do so.

Expert:  Ash replied 7 months ago.
If you have the bundle now and know what the case is, what prejudice have you suffered?

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