It follows, therefore, that a letter should be written to the Defendant (or his Solicitors if he has any) stating that you have been instructed, what and why your client is claiming and that proceedings, together with costs and interest, will be instituted against the defendant if the claim is not settled within a reasonable time. This is now called a "letter of claim". The purpose of this is, as mentioned, to save unnecessary court proceedings. If the defendant knows that the plaintiff has reached this stage in his efforts, then the defendant may very well settle. It will also, if a settlement is not immediately forthcoming, open up negotiation, which could result in an agreed settlement. As they have not responded to the letter of claim we will not be penalized for going straight to issue at part 7 of the claim form, form number N1.
(c)
IN THE BLANKSHIRE COUNTY COURT Claim Number:
BETWEEN:
Mr. Jason Furlong Claimant
and
Mr and Mrs Fry Defendant
PARTICULARS OF CLAIM
1. On the 15th May 2006 the parties agreed by way of an accepted quotation for the Claimant to carry out catering in connection with the marriage occasion of the defendant’s daughter, for the sum of £6723.
2. It was a term of such agreement that the payment of £6,763 was to be paid on completion of the work within 30 days from the date of the Claimant’s invoice and that should such sum not be paid within such period then any sum then owing should bear interest at the rate of 8% per annum from the date of the said invoice until the date of payment.
3. On the 27th August 2006 the Claimant sent to the Defendants an Invoice for the sum of £6723 being the amount of the agreed.
4. The Defendants have not paid the said sum of £6,723 or any part of it.
AND THE CLAIMANT CLAIMS
(a) the said sum of £6763.00
(b) interest thereon from the 27th August 2006
to the date hereof 27th November 2006 days at the rate of 8%
per annum [£1.48 ] per day £136.37___
£6899.37
SONIA KHAN
I believe that the facts in this Particulars of Claim are true. I am duly authorized by the claimant to sign this statement.
Signed………………………………………………..
Position held: Solicitor of the claimant
Dated this day of the 27th November 2006. Dodds, Dorrington & Dowling of 23 Fore Street, Highfield, Oldingham, Surrey, OL6 7BY, Solicitors for the Cliamant who will accept service of all proceedings on his behalf at this address.
(d)
As Mr and Mrs Fry have filed a defence the next step will be allocation. The Court will send a copy of the defence to the Claimant (or his Solicitor). If a solicitor is acting for the defendant then it is usual, as a matter of courtesy, for the Defendant's Solicitor to also serve a copy of this defence on the Claimant's Solicitor direct (or on the Claimant direct if he does not have one). At the same time they send form N150 allocation questionnaires to both parties who must complete and return them within 14 days. The Allocation Questionnaire is completely new under the CPR. It asks the parties (or their Solicitors) whether the relevant pre-action protocol (if any) was complied with; whether a stay is sought for settlement; about possible transfer to another court; for the parties’ view of the appropriate Track for the case; for details about factual and expert witnesses and for details of any contemplated interim applications (i.e. applications to the court for specific pre-trial orders). Upon receiving the form the Court Staff refer the claim to either a District Judge (County Court) or Master ( High Court). The Claim is allocated to either the Small Claims Track; Fast Track or Multi Track. This case will probably be allocated to the fast track under Part 28,and the directions that would follow are standard directions concerning disclosure of documents, exchange of witness statements, and exchange of experts’ reports), and a date for filing the Listing Questionnaire. In turn the Court sends parties the Listing Questionnaire for return (with the appropriate fee) within 14 days. This asks whether the parties have complied with all directions given, whether any further directions are required; whether Experts Reports have been agreed; whether permission is being sought for the Experts to give oral evidence at the trial; the number of witnesses being called and their names and addresses; dates when witnesses will not be available; whether an interpreter is needed; whether the party is being represented on the trial in person, by a Solicitor or by Counsel (a Barrister); how long the trial is estimated to last.
(e)
There would indeed be a procedural difference if the claim was for the sum of £2763, since this may well fall within a ‘small claim’ being between the sum of £1,000-£5,000. In turn could be tried in a lower court (county court, by circuit judge). Thus, If a claim does not exceed £5,000 in matters of contract and tort, or £1,000 in personal injury cases, the action will be dealt with under the Small Claims Track (by the Small Claims Court). The Small Claims Court differs from the County Court in that:-it is presided over by the District Judge, disputes are resolved by way of arbitration and not by way of trial, there are no formal rules of evidence, whereas the hearings are now in public, the District Judge may decide to hold a particular hearing in private if the parties agree or if it is a matter concerning a child or a patient, the judge has no power (except in exceptional cases where it considers the case frivolous, or one which should not have been brought)to award costs to the winning party (i.e. both parties will be responsible for their own costs) there is an appeal from the finding of a District Judge to a Circuit Judge. It is the District Judge that hears Small Track claims (in the Small Claims Court).In most ordinary actions the District Judge will deal with all the interim matters (these are any matters that need a decision and which take place between the commencement of the proceedings and the trial). The District Judge is the one judge that Paralegals will come into contact with face to face. Often it is the Paralegal’s role to argue such pre-trial (interim) matters in front of the District Judge. In comparison the purpose of the Fast Track is to provide a streamlined procedure for the handling of cases with a value of more than £5,000 but less than £15,000. They can only, therefore, be dealt with in the County Court unless the matter is of great complexity or in the public interest to be heard in the High Court. Costs are kept to a minimum and are usually fixed by the Court. Thus there are a number of differences between the fast track and small claim, for example small claims can be dealt with without a hearing. As well as this there is no Part 36 and Part 18 and finally there are no costs except in exceptional circumstances
(f)
The client needs to be informed that if he is successful then a costs order will be sought in his favour against his opponent but that such an order is in the discretion of the court. These costs are known as 'inter partes costs' and even if an order is made the inter partes costs are never as high as the solicitor/client costs and the client will have to pay the difference. The reason for this is simple since a successful party might instruct the best known and highest paid Solicitor and Barrister in the country. It would be wrong to penalise a losing party for this. So, the court, in assessing inters partes costs, will assess what is reasonable (quite often the costs will be set down by the Civil Procedure Rules). If an order for costs is made, the Solicitor will draw up a bill on an inter partes basis which will be lodged with the court for "assessment", which in litigation terms, means the scrutiny and approval of the Court. In the County Court the District Judge does this.
The key point to emphasise to the client is that even if he is successful and the court makes a costs order in his favour against the opponent, he may have incurred costs which are not recoverable from his opponent. The primary liability for these costs remains with the client.
This does not mean that the winner will get back all his costs. So that they can be classed as 'reasonable' the winner’s bill of costs is scrutinised by the Court and the various sums approved or altered as the District Judge seems fit. This is called an Assessment of costs (formerly called “Taxation”). The drawing and preparing of a Bill of Costs is a specialised activity and many firms of Solicitors send them out to be prepared by specialist costs draughtsman. As the case is on the fast track, a statement of costs would have been lodged at the court 24 hours before the trial. Since the introduction of the CPR, Judges at all levels are required to assess costs summarily at the end of a trial on the fast track or at the conclusion of any other hearing which has lasted not more than one day. Thus a summary assessment would follow.
(g) On the basis that your Clients obtain a Judgment, how could they enforce it?
On the basis that the Client obtains a judgment, there are a number of ways in which they may enforce it that may include:
-
A warrant of execution in the High Court, where the judgment is money the claimant can issue a Warrant of Execution addressed to the County Court Bailiff, commanding him to seize sufficient property of the Judgment Debtor to satisfy the judgment plus any costs awarded and the Bailiff's costs. If the judgment creditor knows that the judgment debtor is owed money by a third party, an effective method of execution is to obtain an order from the court diverting the payment from the judgment debtor to the judgment creditor. The process is known as attachment and the order is known as a Third Party Debt Order. It will often be directed, for example, against a bank in which the judgment debtor has money in an account, but is equally effective where the judgment creditor knows.
-
A charging order, where or when warrants of execution or other proceedings are not effective or not applicable because of insufficient money or effects, the judgment creditor may proceed by way of a ‘charging order’ if the judgment debtor has an interest in land, stocks and shares or an interest in the property of a partnership. The property thus charged can be disposed of ultimately in order to settle the judgment debt.
- Appointment of a receiver where the debtor will be in receipt of income which cannot be attached conveniently by the usual methods of execution (e.g. where the debtor receives rent from tenants) so that it is necessary that the income is collected by an independent person. This is an expensive method of execution and it is therefore discretionary. The creditor makes an Application for the appointment of a suitable person as receiver - in urgent claims this is done ex parte. An affidavit (sworn statement) is required setting out the judgment debtor's interest in the property and the fitness of the proposed receiver. The receiver will receive the money when it becomes payable and prevent it getting into the hands of the judgment debtor
-
Bankruptcy and liquidation where the judgment creditor could, as a final recourse, consider making the judgment debtor bankrupt, or where the judgment creditor is a partnership or registered company, put them into liquidation. This is only available where the creditor is owed at least £750, although joint petitions are possible. This is only, usually, done as a last resort because once an Order in Bankruptcy is made all the assets of the Bankrupt automatically become vested in the Official Receiver in Bankruptcy (or later in a Trustee in Bankruptcy) whose responsibility it is to assess the total liabilities of the Bankrupt, to sell all the assets and to divide up the proceeds, pro rata, amongst the creditors. Some creditors are called "preferential" creditors who have first call on any money and it is likely, therefore, that the Judgment Creditor may only end up with a small amount.
-
Attachment of earnings, under this order the judgment debtor's employer will be ordered to pay into Court such part of the earnings of the debtor as the Court thinks fit. The claim will thus be paid off in installments. The order can be discharged if the debtor loses or changes his or her employment. Application must be to the debtor's local county court - Attachment of Earnings Act 1971.
-
Warrant of specific delivery where the judgment of the court is for the delivery of goods or chattels without the option of paying damages, this can be enforced by the issue of a warrant of specific delivery. The county court bailiff is commanded to seize the goods and deliver them to the successful litigant.
-
Writ or warrant of possession where the judgment is for possession of land this can be enforced by a warrant of possession which commands the county court bailiffs to enter upon the land, evict those in unlawful possession and give possession to the claimant.
-
Committal for contempt of court where the judgment is an injunction ordering the defendant to do or refrain from doing something other than paying money, the court may commit him or her to prison for contempt if he/she refuses to obey the order.
(h) In connection with civil litigation generally, what is meant by “case management”?
Case management is the form of training that is given to judges on how to handle cases. Thus, refers to systems in which court or tribunal officials assume closer administrative control over the litigation process than is traditionally associated with . The Court itself is under a duty to further the overriding objectives of the CPR (speed, ease and the cutting down of costs), by actively managing cases. This drastically alters the role of the Court away from merely adjudicating on whatever cases the parties choose to present. Instead, it propels the judge into the arena, so to speak, - it makes him more active in the pre-trial matters to ensure not merely that the litigation progresses smoothly, but also that every aspect of the dispute is considered in terms of time and expense before allowing it to continue. Also, and this is also important, to assist the parties, if possible, in settling the dispute or seeking other means of resolving it. Rule 1.4(2) sets out some (but not all) of the ways in which the court may actively manage cases which include for example: identifying the issues at an early stage; deciding the order in which issues are to be resolved; helping the parties to settle the whole or part of the case; dealing with the case without the parties needing to attend at court etc…This expansion of the role of the court in the litigation process has considerable implications not only for the parties but also for their legal advisers. No longer will lawyers be able to drag cases out, or sit on files. If they do, the court will intervene. Judges have been given special training in case management and it may not be out of the question for a firm of solicitors to receive a phone call direct from a District Judge wanting to know exactly what the current position is. The claim will be transferred, by the District Judge to one of three Tracks - the Small Claims Track, the Fast Track or the Multi-Track. Each of these tracks offer a different degree of case management. Directions by the District Judge (i.e. instructions about what the parties must do to prepare the case for trial or hearing), will be proportionate to the value of the claim, its importance, its complexity and so on. Each track requires a different degree of case monitoring, that is, the more complex or important the case is, the more “milestone” events there are likely to be. Failure to comply with directions within the time limits specified can lead to sanctions being applied by the court. These sanctions will, in the main, be monetary sanctions affecting costs, but the ultimate sanction is having the claim or defence struck out. Thus, the 3 tracks have been designed to implement the overriding objectives (speed, ease and the cutting down of costs) of the CPR.