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JimLawyer
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We are defendants in a small claims case. 1) the plaintiffs

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We are defendants in a small claims case. 1) the plaintiffs have issued proceedings in the incorrect name. Can I have the case struck or dismissed?
JA: Where are you? It matters because laws vary by location.
Customer: It is in the Cambridge County Court.
JA: What steps have you taken so far?
Customer: Despite it being in the wrong name, and also the plaintiffs missed a deadline , we have responded with a Defence. We also maintained we weren't served the Allocation Questionnaire on time by the plaintiffs. We have been give a mediation date, but the Judge also sent an order for exchange of documents. Stupidly, I massed the document exchange deadline, because I presumed we would mediate first. Now totally confused.
JA: Anything else you want the Lawyer to know before I connect you?
Customer: Don't think so?

Hello, my name is Jim and I am a qualified lawyer happy to help you today.

Yes, the court documents are therefore defective with having the incorrect name. Not only that but if they failed to serve the DQ on time then they are in breach of the court directions and they need to apply for relief from sanction.

I would recommend you write to them to invite them to discontinue their claim against you in the next 7 days failing which you will apply to strike their claim out.

I will upload an application for you to use....

 

You would also be in breach of the directions but if you and the claimant can agree an extension then you would not need to apply for relief from the court.

Assuming you have given the claimant 7 days to confirm they will discontinue, and they do not do so, you need the N244 form and a witness statement with a draft order. I attach copies of those which you can tailor to your specific case. With the witness statement, if you want to refer to any evidence such as email correspondence, letters and so on, you can do that and attach them to the statement.

You will need 3 copies of the bundle (N244, statement, draft order) and a covering letter to the court with a fee of £255 payable to HMCTS. This fee is recoverable if your application succeeds.

You can specify a telephone hearing and you ask the judge for an order that the claim is stuck out as the claimant's statement of case is defective, thus invalid, and they have also breached the court directions.

If you want to do the application and send me a copy to check, I would be happy to do that. If you want an advocate to do the hearing for you, you can use http://www.lpc-law.co.uk who would charge around £250-£350 and the fee is recoverable from the claimant if your application succeeds. The advocate's fee would also be recoverable from the other side if your application succeeds.

I hope this helps - if you can please accept the answer and give me a 5 star rating (the top right of your screen & then click “submit”), I can answer follow up Q&A's at no extra charge and I will be credited for helping you today.

Many thanks,

Jim

Customer: replied 14 days ago.
Many thanks Jim. Unlikely they will discontinue their claim, but and I missed the Judge's order to exchange witness statements. As the proceedings are in the name of an entity that doesn't exist, and they missed the DQ deadline, we wrote them, and copied the court, that we didn't accept service. However, I agreed to mediate with the Small Claims mediation service. Does this prejudice my case also? I really would like the case dismissed.

Mediation would not prejudice the case, the courts like the parties to engage in mediation as if the case can settle that way, the court takes the view that is much better than using the court's resources.

As you missed the deadline then not to worry as you can agree a new date with the claimant - the parties can agree an extension between themselves of up to 28 days without having to ask the court. So you can approach the claimant and seek to agree. Same for them with their directions questionnaire (also known as an allocation questionnaire).

If you want the case dismissed then you will have to apply to the court assuming the claimant doesn't voluntarily discontinue the claim. The risk of applying to do that is the claimant may just say the incorrect name is able to be rectified - they would have to ask the court for permission to change their claim form. They should have done this a long time ago though so they will be asked to explain why they didn't ask the court sooner.

If their claim has no merit either then the court is likely to strike it out.

JimLawyer and 10 other Law Specialists are ready to help you

This article shows you the problem the claimant faces :

https://www.ashfords.co.uk/news-and-media/general/mistakes-in-litigation

Customer: replied 14 days ago.
Thanks Jim. Do you know what it costs to have apply to have a claim stuck out?

The application fee is £255 - if you succeed then you can ask the judge to order the claimant repays this to you within 14 days. If you want an advocate to do the hearing then there is their fee too but like I said earlier, it is also recoverable.

I hope this helps - let me know if you have any more follow up questions as I am happy to answer those.

Have a good day

Customer: replied 14 days ago.
Final question. My sense is to apply for the striking out first, and then possibly mediate. Can I avoid having to produce a witness statement in response to the Judge's Order?
Customer: replied 14 days ago.
We don't need the phone call at this stage, thanks.

The thing to bear in mind is the court directions stand firm and parties are expected to comply (regardless of whether they are taking part in mediation or not).

I would write to the claimant to give them 7 days to discontinue, tell them if they do not then you will make an application to strike out their claim and seek your costs if you succeed. You can also propose mediation to them in the same letter/email.

If you have now passed the date to exchange witness evidence, propose a further date to do this with the claimant (again, in the same letter/email to them).

Customer: replied 14 days ago.
I appreciate the help.
Customer: replied 14 days ago.
No need to phone. I didn't realise there was a fee for the call either.

I think you may have clicked the call request. if you want to cancel the call then please send an email to [email protected]. They will refund you if you have been charged already.