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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience:  I have been practising for 30 years.
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The claimant has not supplied me with any documents of

Customer Question

The claimant has not supplied me with any documents of evidence in which they wish to rely on. I cannot find out if the court has received any (as of 20/09 none logged) as they do not answer the telephone and take 2 weeks to reply to e-mail. Small claims county court claim between 2 Ltd businesses. The hearing is on 11/10. Case involve a 3rd party mobile telecom company claiming, in their own written demand, "penalty charges" from a litigation clause in the contract about early termination (19 days). £2100 demand for 5 mobile lines that were charged at £10 per month for 2 years, payable to Vodafone, which were fully paid.
Submitted: 22 days ago.
Category: Law
Expert:  F E Smith replied 22 days ago.

Has there been any court order for directions that each party is supposed to provide the other with all the documents they intend to rely on by a particular date? Have you provided the other side with your documents?

What would you like to know about this?

Customer: replied 22 days ago.
to be delivered by 4pm 02/09. Mine were sent by Post Office tracked to the court and claimant. They had not paid the hearing fee at the specified time but then were served with a judgement order to pay by 09/09 and I have been informed they have done so.
Will the judge still allow the claim or is the likely outcome an adjournment. (I have to travel from N.Wales to Northampton.)
Expert:  F E Smith replied 22 days ago.

Judges in Small Claims Court tend to be not as pedantic with this as they are in other courts, fast-track and multitrack.

It is only 5 days to the hearing and I don’t know whether that’s enough time for you to consider and take any legal advice on the documentation. Of course they may have no documentation!

I will tell you that depending on the amount of documentation, the judge may give you 10 minutes to consider it. You need to chase them for the documentation to try to get it out of them and tell them that if they don’t let you have it by return, you will be asking the judge to strike out their claim.

If you get to court and they haven’t supplied the documentation or they supplied it really late, you can then show that correspondence to the judge and asked them to strike out the claim or adjourn it for but to award costs and expenses in your favour on the grounds of their unreasonable behaviour.

There is another issue here seems rather odd. You are the defendant in this action and yet you are travelling down to Northampton. Normally, any defended claim be transferred to the defendant’s home court particularly if the claimant is a huge company.

This is a claim which has been issued in the bulk centre at Northampton, there would not normally be hearing there. I use certain therefore that the hearing you are going to on 11 October is in actual fact the trial hearing?

Can I clarify any points arising from this for you?

Please rate the service positive. It’s an important part of the process by which experts get paid.

We can still exchange emails.

Best wishes.


F E Smith, Advocate
Category: Law
Satisfied Customers: 8445
Experience: I have been practising for 30 years.
F E Smith and other Law Specialists are ready to help you
Customer: replied 22 days ago.
34;Notice of Allocation to the Small Claims Track (Hearing)"...states "the hearing of the claim will take place at 2pm 11/10 at the county court......
In my initial response to the claim form, I asked for the hearing to be Local i.e. Rhyl as this was the area in which the contract was signed. They had an office in Rhyl which they "dissappeared" from.
Documents I expected......contract with my signature........proof that the 5 lines were terminated early.
I have asked the court by e-mail but they are very slow to answer.
Expert:  F E Smith replied 22 days ago.

If you have asked for the contract with your signature, and they haven’t provided, the chances are that the case will be thrown out.

This should automatically have been transferred to your home court. If it wasn’t, you should have asked for it to be. Probably too late now but make sure that if there are any in the future, as you are the defendant, it’s transferred to your local court.

If you do, be careful with Rhyl County Court because the paperwork is confusing. Rhyl and Llandudno actually come under the same court and I have had clients get caught out when the hearing was in Llandudno but from the paperwork it appeared that it was in Rhyl unless you read the very small print. Academic in this case.

Customer: replied 22 days ago.
Should I e-mail Pure (claimant) asking for the evidence they should of provided including the signed contact?
Problem is that I have used the 2 contracts I signed, as evidence, so they will have a photocopy they can just send back.
(2 contracts, one for 28 lines + phones 8th Oct and one for 8 lines only 11th Nov. Lines moved 24th Oct)
Customer: replied 22 days ago.
Should I phone Northampton Business centre to find out why they did not transfer it to Rhyl?
Customer: replied 22 days ago.
Oh and Pure are based in Northampton by the way.
Expert:  F E Smith replied 22 days ago.

There is no harm in doing all of that.

You could always ask for an adjournment to have it transferred to Rhyl although it’s unlikely to be granted at this late time

Customer: replied 22 days ago.
OK I'll give that a shot.
In the back of my mind, Pure could have asked for their hearing money back before tues of this week and said it was discontinued as they have always used the court as a pressure tactic to get money out of me.
Expert:  F E Smith replied 22 days ago.

Fingers crossed

Customer: replied 21 days ago.
Hi, I just thought I would update you. I actually got through to the court today. They said the claimant has not filed any documents BUT the court has somehow missed this fact and has not sent out a judgement order. They said they will look into it and put this before the judge and let me know by this afternoon or Monday at the latest.
They were quite adamant about the allocation being correctly listed at Northampton (claimant base).
I am right in thinking....worst case scenario - case - struck out?
I did e-mail Pure requesting the documents by the end of today, marking it high priority and a read receipt. No read receipt from them.
Best regards,
Customer: replied 21 days ago.
Just received this from the court............
Good Afternoon
I referred the file to the Judge for directions, below is the wording of a court order which has been sent out to parties first class post today.
Before District Judge Watson sitting at the County Court at Northampton, 85/87 Lady's Lane, Northampton, NN13HQ.Upon reading a letter from the Defendant and upon neither party having complied in full with the order of DeputyDistrict Judge Elsey of 29 July 2016 because the claimant has filed no documents or witness statements and thedefendant has filed no witness statement.And upon it appearing that there is insufficient time before the hearing for the court to make unless orders andthat there should be sufficient time at the hearing for the court to hear oral evidence.IT IS ORDERED THATThe claimant shall immediately sent to the court and to the defendant copies of any documents on which he relies.Dated 7 October 2016
Jo Morris
Operational Delivery Professional
The County Court at Northampton
Tel: 01604 470400I am not authorised to bring the ministry of justice contractually, nor to make representations or other statements which may bind the ministry of justice in any way via electronic means
Expert:  F E Smith replied 21 days ago.

The only time that it would remain in the claimant’s home court is of it was undefended or if the claimant was also a business or limited company and even then, depending on the nature of the business, it can still be possible to get it transferred to the defendant’s home court.

Worst case scenario is that it goes ahead. Middle-of-the-road, adjournment. Best, ***** *****

I typed the above before reading the second post.

That is good news because if the claimant doesn’t comply with the order they could well get struck out. However what does concern me is that the order says “and the defendant has filed no witness statement”. Get that done now. It’s basically just the background, make sure that you put the headings and the court reference at the top and entitle the document Witness Statement of Defendant and then put a statement of truth at the end, “the Defendant believes that the contents of this Witness statement are true” and then sign and date it. Send it to both the court immediately and the claimant.

The reference to “for the court to make unless orders” means, that the court cannot make an “unless order” which is an order which is literally what it says, that unless the claimant does something by a particular date, their claim is struck out.

Customer: replied 21 days ago.
I e-mailed the court back before you answered, to clarify what "immediately" meant in timescale and if the claimant didn't comply, the case would be stuck out. This is the reply.Good Afternoon,
The matter is still listed and the case is more likely to go in your favour if you attend and put your side of things to the judge. The judge has stated that in the absence of documents there is enough time to hear oral evidence.
Civil SectionCounty Court at Northampton
85-87 Ladys Lane,NorthamptonNN1 3HQTel:01604 470400
Expert:  F E Smith replied 20 days ago.

Thank you. That basically means that he is going to allow them to present any documentation on the day or present their case verbally. That doesn’t help you but what they will have done is alienating the judge by ignoring his orders. The last thing you want to do is alienate a judge.

Customer: replied 18 days ago.
Hi, I drafted a witness statement (attached) and sent it next day recorded delivery to the court and to Pure as you advised.However, Pure replied on Fri 5.07pm to the e-mail from me requesting evidence, saying they had sent it on 25/08. They have sent me, by e-mail scans of all of the evidence I sent to them and the court (on 22/09), plus 21 pages of e-mails repeating over and over the same 4 messages.
1 They have not provided the original signed contract (are they allowed to use copies of my evidence for their own benefit?)
2 Not provided any evidence of early termination
3 No evidence of any losses incurredAs their claim is regarding a contract I signed, surely they have to at least produce it in the first instance?My concern is that either they are very clever and have done this before OR they are just messing me about and are not going to turn up, knowing that it's cost me a days' work and travelling costs.
Best regards,
Expert:  F E Smith replied 17 days ago.

Thank you. The witness statement does add a lot of information but what it doesn’t say is what the claimant is actually claiming in respect of. Presumably, there claim will say something in that respect. It’s not certain whether it’s in respect of the earlier original 28 phones all the later 8 phones.

Whether they can rely on your contract, that you supplied, or not, would depend on whether there is a dispute over the contents of the contract. There is an argument that the statute Consumer Credit Act says that they cannot pursue the debt until they have supplied a copy of the agreement. They can do that because they can simply produce your copy. They don’t have to produce the original.

On a slightly different note, it is good practice to always number the paragraphs in a witness statement because it makes it easier to refer to in court and correspondence.

What you also haven’t said in your witness statement is why the cancellation fee (which you have cleverly pointed out is called a Penalty) is not payable in your opinion. You haven’t mentioned anything about giving notice.

Customer: replied 16 days ago.
Hi. I posted a reply this morning from home using an I-pad but it doesn't seem to have sent. Apologies if I am doubling up.
Apparently, Pure tried to postpone the hearing early yesterday morning, without success. They then contacted the court to withdraw the claim at 11.52 am and phoned my office to tell us. I learnt of this as I was about an hour away from Northampton but luckily I continued as the judge had refused to withdraw it at such a late time. The hearing went ahead as scheduled and the judge awarded me expenses....petrol, car parking, your fee and a capped £95 days pay. So my journey wasn't a complete waste of time!
Thanks for you advise.
Best regards,Robin
Expert:  F E Smith replied 16 days ago.

That’s good news. Make sure that you pursue them for your costs and expenses.

Customer: replied 16 days ago.
Already e-mailed them to tell them the hearing went ahead and they will be getting notification of the outcome from the court. Also said that I will getting in touch later in the week.:)
Expert:  F E Smith replied 16 days ago.

Good luck.

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