Today we made one of those
routine calls to the litigation capital in East Lancashire to find out why we
still have not received notice of issue of proceedings in a case where we sent
paperwork up North eleven days ago.
We were met with a familiar
response. To date “nothing has been
logged on the system” although they are “currently 8 days behind”. The suggestion is that we telephone again at
the end of the week if we have not heard and they will look in to it further.
I should add that we haven’t
telephoned before now because the most common response is that they are just 6 days behind. They have been “behind” by that sort of
period of time since the office opened, as far as I can recall.
Closer to home, we had instructions
to issue a bankruptcy petition shortly before Christmas. We sent the papers off to the debtor’s local
court here in the West Country.
For various reasons, it was not
the sort of thing to chase in the week before the festive period but we were on
to it at the start of January. We
discovered that the petition had been issued on 18 December but the sealed
copies had not been sent to us. We got
things moving, but were now hampered by the delay where the hearing date was at
the end of January and personal service is required at least 14 days
beforehand.
Our debtor does not want to play
and has evaded service. Despite our
agent’s valiant efforts, time ran out and the petition was returned. We asked for it to be relisted and at the
same time submitted an application for an order for service by another means as
it is now called, substituted service being
a much too sophisticated term of art for the modern court user.
The application was returned to
us without action and had to be resubmitted.
Meanwhile, having then been sent a notice of adjourned hearing date
(that we could not yet serve) we remarked on the fact that the court was now
spelling the debtor’s surname incorrectly.
After further chasing, last week,
we received an order from the court. It
arrived a week after it left the district judge’s desk and too late for us to
serve it, and the petition, ahead of the second hearing date. Even if we’d had time
to serve it, we could not have done for these reasons.
First, it recites that the
district judge read a letter that does not exist. Secondly, it has two “it is ordered that”
sections, the first containing only two recitals.
Finally and most conspicuously,
the (in)operative part of the order tells us that “the insertion of a sealed
copy of the above mentioned petition together with a sealed copy of this order
through the letterbox of [debtor’s address]....” – and it stops there. So it is ineffective.
Oh, and the debtor's name is incorrect. Again.
The same court fairly recently
sent us an order in another case which recited nothing but the fact that it had
been in front of a district judge who then allegedly ordered that:-
"(1) The claimant should send a copy to the defendant’s (sic); and
(2) As both defendant’s (sic) reside within jurisdiction of xxxxxx County Court, so the matter be transferred there.”
When we enquired as to what it
was that the claimant should send a copy of to the defendants then after
another typical delay, we were told that it is a copy of the last letter that
we sent to the court – which presumably was writing to defendants anyway
to send a copy of this cryptic order.
When the Salford operation and
the local courts start to interact (in the most ironic sense) we get what have
become almost routine letters from the local courts, asking for a copy of the
defence “as this was not on the court file when transferred”. Bear in mind that the only reason
the file was transferred from Salford is that a defence was filed.
The pain doesn’t end when you
have judgment. In one recent case the CCMCC sent us the form from Registry
Trust (which keeps the register of county court judgments) asking whether the
defendant was “two individual’s (sic) or a one firm name” to which the smart
answer was to look at the claim form we filed at the outset with “(A firm)” after
the defendant’s name.
Just a few short highlights of everyday
life dealing with the Court Service – the delay, the additional expense, the
frustration – ours that we feel and our clients’ that we field.
Meanwhile...
For those who haven’t heard,
there was this bloke called Mitchell who used to be the government chief
whip. He lost his job because of a lying policeman – presumably no longer laughing since he went to prison. Mitchell issued libel proceedings against the
publishers of The Sun. See Cracking the whip for more
The rest is recent history where
ultimately the Court of Appeal said that it was right to impose a penalty on Mr
Mitchell and his lawyers which would effectively deprive him or them of perhaps
more than £500,000 in costs if successful in the defamation proceedings.
All that because a very complex,
detailed document was filed late – six
days late.
The Master of the Rolls, Lord
Dyson, explained to a packed Court of Appeal that “there now has to be a shift
away from exclusively focusing on doing justice in the individual case”.
That judgment has encouraged a subsequent
spate of seemingly ridiculous applications.
In Lakatamia Shipping Co v Nobo Su
there was a delay by one party of just 46 minutes in complying with an order for
disclosure of documents. The other side
took the point and argued that the defence should be struck out.
In Meehan v Manley & Churchill Insurance Company the parties had
agreed in the summer of 2013 an extension of time for service of witness
statements. There was seemingly no prejudice
to anybody.
After the Mitchell judgment, the
defendant took the line that the claimant could not rely on those witness
statements because they had not been served in compliance with the court’s
previous timetable and the agreement between the parties was ineffective to
vary that.
Happily, in both of the cases
referred to, a sensible outcome was achieved.
Forty six minutes was deemed – quite rightly – to be “trivial” and the
stance taken with regard to the historic breach of the timetable for witness
statements was condemned as “opportunistic”. It was said that if relief were
not granted, “procedure would, in fact, become the mistress rather than the handmaiden of justice”
Further encouragement comes this
week with the announcement from the Royal Courts of a new Practice Direction
that allows parties to agree extensions of time of 28 days without application
to the court, as long as hearing dates are not compromised. That is expected to become a procedural rule
but in the meantime we can only hope that it “appears on the system” of various
county courts.
There seems a mixture of excitement
and trepidation - that many are creeping around with the feeling that this is
nothing short of (welcome) mutiny on the part of one or two brave judges who
can see what a ridiculous state of affairs we have reached.
The punishing Mitchell edition of
The Hunger Games is bad enough on its
own but stack this alongside the increasingly inept, illiterate and inefficient
service that has become standard within our court service and it becomes all
the more bizarre.
There is a risk, to pinch out of
similar context the phrase of a high court judge in another case early this
year, that we are going to “bring the rules of procedure and the law generally
into disrepute”.
It is already there and it needs
pulling back – fast.
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