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Ask F E Smith Your Own Question
F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9580
Experience:  I have been practising for 30 years.
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Our company had a claim made against it. By the 9th May, the

Customer Question

Our company had a claim made against it. By the 9th May, the claimant was meant to have paid the court fee and to have submitted witness statement. I submitted witness statement by the 8th May...the claimant did nothing and subsequently I received notification that the case was struck out because the claimant had not paid. The claimant then came back with an application to reinstate with the reason that they had been away on business for 1 month (without providing evidence of that), which is now being heard on the 27th July. Under what circumstances can the judge reinstate the case - it seems wrong to me to reinstate it - what is my best defence to make sure it is not allowed to proceed.
Submitted: 2 months ago.
Category: Law
Expert:  F E Smith replied 2 months ago.

Hello - who is the claimant? what was the claim for?

Customer: replied 2 months ago.
claimant is a ltd company as is the defendant (us)...it is a claim for non payment of invoices and for damages - both of which we vigorously deny
Customer: replied 2 months ago.
It was originally due to be heard in Northampton, but was moved in January to Yeovil because of my ill health.
There had been exchanges of witness statements unde Northants...and the claimant failed to respond by the dates set by the court with payment of fee for the hearing and with witness stateents - so the court struck it off...then the claimant made an application for resintatement. I want to know under what terms it can be reinstated and how to best make sure it is not
Customer: replied 2 months ago.
Do you need any more info - when will you be answering please
Expert:  F E Smith replied 2 months ago.

I apologise for the delay. It’s an email exchange service, not a chat service. We have clients so there may sometimes be a delay getting back to you.

From experience, it is rarely worth opposing a reinstatement application in circumstances like this because provided the applicant has a reasonable reason, it will be reinstated. To be honest, I would tell the court that I didn’t object and that it could go ahead without a hearing.

The decision is yours.

If you want to oppose the reinstatement application you need to come up with a good reason why it should not be reinstated and that is nothing to do with the validity of the claim it has to be with why your position will be prejudiced by having the case back on.

The judge will consider all the circumstances and whether he actually believes what the claimant is saying.

A Case will normally be automatically transferred to the defendant’s home court regardless of the reason.

It really frustrates and annoys me that claimants and defendants (and solicitors are the worst culprits!) Routinely miss dates to submit evidence and exchange witness statements et cetera et cetera without any reasonable justification and the court does not simply strike the case out. To my mind, a miss is as good as a mile and of the witness statements are supposed to be exchanged by a particular date and the date passes, then that evidence is no longer admissible unless there is a really good excuse (death is quite good!) For missing the deadline.

Can I clarify anything else for you?

Please take a moment to look at the top right hand corner of the page and rate my service by clicking one of the stars at the top of the screen. It’s important you use the rating service because that gives me credit. It doesn’t just give me a pat on the head! All you need to do is press Submit. Thank you. If you still need any point clarifying, I will still reply because the thread does not close.

Best wishes.

FES.

Customer: replied 2 months ago.
But he failed to make the payment for the court fee. Why should it be reinstated? Are there no rules regarding process which, if failed, rule that the case is closed?
Customer: replied 2 months ago.
also, should not I as the defendant have the right to see what his case is through witness statement and then respond to that - rather than he sees what I say and then responds to that?
Expert:  F E Smith replied 2 months ago.

I appreciate he didn’t pay the court fee and if it were my decision, would not be reinstated but it isn’t my decision, it’s the decision of the judge and the judge is likely to reinstate it if the claimant comes up with a good reason as to why the fee was not paid or was paid late.

It all hinges on whether it is “in the interest of justice” to reinstate the case.

The point you make about witness statements is absolutely correct. I could not agree more. You can always make an application to have his witness statement excluded on the basis that the was no mutual exchange. You should have done is told him in writing when you had your witness statement prepared you were ready to exchange but hung onto it and then if there was any issue brought up about the late exchange of witness statements, you can produce your correspondence that you were ready and it was the claimant who wasn’t.

We cannot really debate how the court deals with this, I can just tell you the reality of what happens.