A huge gamble

gambling

Here we have a poster with a claim for £18,000: Howard-Cohen-Robinson-Way-HPH2-Ltd-v-Spiderxx. A claim of that value wouldn’t be allocated to the small claims track, it is likely to go to the fast track where the unsuccessful party has to pay the costs of the successful party in addition to their own. If the unsuccessful party is the defendant who is the poster on this thread, in addition to a judgment for £18k they would be saddled with a costs order for a few more thousand to cover their opponent’s costs. This has already been discussed here: Costs anyone?

Post #1

The OP starts by saying they have already filed a defence. The image above is from post #1, you can see the OP clearly says they filed a defence.

If that wasn’t enough, on post #6 the OP states that their defence was received by the court on May 27.

Post #6

As the thread progresses, it turns out the debt is not statute barred after all and the defence must be amended, otherwise they could apply for summary judgment. Their Nemesis chooses to ignore that insignificant little point that could make all the difference and, instead, goes on to say that the OP must inform the court of the general extension of time agreed. The extension in question would have been to file a defence, as noted above, the defence had already been filed, so not applicable.Post #27

A poster steps in to remind their Nemesis that the defence had already been filed and the extension did not apply. He quotes the post in question, yet, unbelievably, he STILL gives the wrong answer. He says: “Point 1. Yes, I know that, thank you”. Yet he still says that it would be wise to inform the court of the extension of time because the claimants will take advantage of any late or missed filing. WHAT late or missed filing? The defence was filed on the 27th of May! Post #30

The posts that follow all refer to details relating to the process of informing the court of something that was totally irrelevant at this stage as THE DEFENCE HAD ALREADY BEEN FILED. 10 posts later, Nemesis still insists that the court should be informed about the extension because the claimants are always playing games. How many times has this subject been discussed on this thread?

Post #41

Meanwhile, the OP is offered no real help with the issues that matter, such as amending their defence. Another 15 posts go by discussing SARs and other points, then the OP posts that the court has sent through acknowledgment of their defence. As the poster below stated, this should have meant no further concerns about the extension and the need to concentrate on amending the defence instead.

Post #57

There are no updates for over 10 days, then the OP posts again saying they have received a letter in response to their CCA request. Unbelievably, Nemesis, once more, says it’s time they started their defence! He instructs the OP to click “the green box above” to look at the specimen LB defence and helpfully offers to go to the draft with them! HOW MANY TIMES has it been posted that the defence WAS ALREADY FILED?

Post #60

This time, it falls to one of the regular posters to point out, for the millionth time, that the defence has been filed, so Nemesis posts “sorry, I meant amended defence”. Well, the OP is not going to find a suitable AMENDED defence by clicking the green box, are they? Nor has there been any mention of the need to seek permission to amend the defence, as it has been filed with the court and served on the claimant, you can’t just re-send it.

Furthermore, the “amended” defence is just a sightly adapted version of the generic “no documents” defence. It even left in a paragraph regarding the agreement to an extension and the fact that, despite that, no documents were supplied, however, in this case the defendant had already filed the defence before the extension was agreed.

Nemesis initially says there would be no fee involved, then, when an N244 application is mentioned, he goes on to refer to a £255 fee. Not quite the same as no cost, is it? As ever, he goes on to make excuses such as “I thought you’d already filed the application…”

This is an £18,000 claim, does anyone remember that? The OP is not raising any points to dispute the account. They had already filed a statute barred defence, now they are saying they’ve not received the documents. The claimants could provide the documents at any time before the trial, which, in a fast track case, is not likely to take place till next year. That means they will have plenty of time to obtain the documents. If they do, what defence will this OP have? The claimants will also be able to get the court to order them to pay their costs.

As mentioned on one of the numerous (and, for the most part, totally pointless) posts on that thread, the defendant should have sought legal advice and possibly looked into entering into a CFA (Conditional Fee Agreement), whereby the defendant’s legal costs would be paid by the other side. This could only happen if they win, so the case should have to be assessed on its merits, but then if they have no prospect of winning, they shouldn’t be submitting a defence but putting forward a settlement offer instead. Given the sums involved (remember, it’s not just £18k, its £18k PLUS COSTS), it would certainly be wise to get some proper legal advice. This was already mentioned in the beginning of the thread but the whole thing got lost in the shower of posts where Nemesis tried to assert himself as the Official Advisor, even when he not only hasn’t got a clue but can’t even read the posts as has been pointed out dozens of times.

Anyone wanting to give even the most basic procedural advice should, at the very least, familiarise themselves with the CPR. In this case, we should be looking at Part 17 where the procedure to amend a defence is explained in minute detail.

The OP’s last post indicates that the issues have been confused somewhat. They told the court they had not received any particulars of claim, this is simply not true. Post #1 clearly shows particulars of claim. There are, however, cases where the particulars of claim are served separately from the claim form, for example, when the available space on the MCOL online form is not enough to detail them. The court help desk may well have assumed this was the case. What the defendant did not receive were the documents requested. They also said something about “as long as it does not alter my original filed defence”. But it WILL, won’t it?

The CPR 31.14 requests are routinely ignored by claimants issuing low value claims because they are fully aware that Part 31 of the CPR does not apply to the small claims track, therefore, once the case is allocated, the request cannot be enforced, however, Part 31 DOES apply to the fast track, where this claim will be allocated, in which case it is possible to enforce the CPR 31.14 request with an unless order even after a defence has been submitted. If successful, an unless order could well have the effect of forcing them to drop the claim if they cannot comply with the order, it would limit the time they have to produce the documents and, for a claim of this value, it would be well worth the £255 application fee. Has anyone mentioned that on the thread? NOPE! Not at all! There is also the potential for fee remission if the defendant is on a low income or relies on benefits. This would apply to any fee, yet it’s not mentioned where the £255 fee came up.

They are taking a big gamble here, the OP is totally in the dark and there isn’t a single lightbulb there, just a few fading candles that don’t even begin to shed light on what is a rather complex (and very high value), claim. There were some rather informative and well qualified posts in the first part of the thread but they all got diluted in a deluge of Nemesisms as he ended up being left to run the show as usual, the sensible posters scared away. There are, of course, alternatives to this approach, but anyone wishing to bring up the subject would risk joining The Ban Club.

5 Comments

  1. Jon says:

    I fear that the poster has been taken in by the beagles as he or she is ignoring advice to get legal advice and taking the work of a court admin clerk that it is an addition and not a whole new defence. I can not believe anyone in their right mind would be so blasé about a debt of 18000 unless they have a back up plan.

    • Agent 99 says:

      On that thread they’ve been focusing on the wrong things from beginning to end, somehow selectively ignoring every suggestion of proper legal advice that has been offered at various stages. The procedural advice is flawed as you can’t just amend a defence and send it back to the court, you need either written consent from the claimant or permission from the court. You could try to obtain consent from the claimant before making your application to the court, in any case, an application has to be made, before you can submit the amended defence. The claimant may well require something towards the costs associated with going through the amended defence. PD17 clearly states:

      A party applying for an amendment will usually be responsible for the costs of and arising from the amendment.

      You then have to properly format your amended defence in a similar fashion to the track changes feature in MS Word, where you clearly indicate what you are adding or deleting. Any new text must be highlighted and deleted text has to be left in but with a line through it and the whole thing has to be properly headed. No one has told them this is what they need to do, but that’s not even the key point. The defence has to have substance to start with. There’s hardly any point in making an application to amend their defence if all they are going to say is that they have not received any documents. In that case, use the £255 to make an application to enforce the CPR 31.14 request instead.

      This can end up being a lot more than an £18,000 debt, it can turn into a £18,000 CCJ plus a costs order for a few thousand more if it goes all the way to a hearing. Doesn’t look like anyone has asked the OP about their circumstances. Are they employed? If so, what sector do they work in? Are they homeowners? Someone who is long term on ESA and living in rented could get away with nominal payments towards their court orders, a homeowner would end up with charging orders for both the CCJ and costs orders which, in view of the sums involved, could even be enforced with an order for sale.

  2. Interested Party says:

    What saddens me here is that the ‘owners’ for years have protested that they will always fight in the corner of the little man so to speak, and here we are this complete proof that they are just not taking notice of what is going on within their site and that the lunatics are indeed running the asylum.

    Shame on them

    • Agent 99 says:

      Their decision to protect Nemesis all costs, to the detriment of the posters beggars belief!

      As it stands on the thread, this OP is about to submit an “amended defence” that’s not much better than the original, without permission from the claimant or the court and not in the proper format, all after having a chat with a court clerk and very “sound” advice from Nemesis. The claim is for £18k FFS! All they’re saying is that they’ve not received documents. What if the claimant send them the documents requested? They have all the time in the world to do that, well, almost. Then what? Summary judgment plus costs?

      The only little man they seem to fight for is Nemesis, and that will, literally, be their Nemesis!

  3. Agent 99 says:

    Well, well, well, this thread has now vanished from public view, possibly moved to the VIP area. The OP never mentioned any concerns about privacy when they posted their “amended defence” up in full, which was just a copy of the generic defence. Why the sudden move? Could it be that the Beagles have something to hide? Maybe they are trying to do some damage limitation away from prying eyes. Maybe they’ve finally decided to tell the OP that they should seek professional legal advice given the size of the claim. That was suggested several times on the thread, but Nemesis always stepped in to “help” and, as usual, it was all left in his [in]capable hands.

    One thing is for sure: what’s written here does have an effect in Beaglelad. The Beagles will never admit it, of course, such is the nature of the Beagle. They won’t want to admit they’ve made a number of errors of judgment. It would be a source of embarrassment if, for example, we were to see them taking on board some of the comments that have been posted on here, or even some of the statements that were privately communicated to them by email or PM. As would be if they were to be seen making U-turns with regards to certain decisions made.

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