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Claim on the Crown incorrectly served

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Claim on the Crown incorrectly served

Postby south1 » Fri Oct 06, 2017 5:35 pm

I made a complaint against a county court which was uphold by the Ministry of Justice. As a consequence I issued a claim for compensation. I sent my claim to the County Court Money Claims Centre requesting that the claim form was sent back to me so that I serve it myself on the defendant along with my particulars of claim within four months what I did.

However I have received a letter from the solicitor of the defendant telling me that my service of the claim form is defective because according to CPR 6.10 I should have sent my claim form to the solicitor acting for the Government Department and not to the Ministry of Justice because it is a claim against the Crown.

This letter invites me to serve again my claim but this time on the defendant’s solicitor. However I am reluctant to do this because it is now more than four months that I issued this claim and it could be struck out at a hearing because of the limitation issue and I could be ordered to pay the cost of the hearing. I cannot also issue another claim because it will be outside the six years limitation period.

I would like to know what to do to save my claim? I would like to know if I can make an application to the court asking that it considers that my claim was served when the Ministry of Justice received it even though I did not sent it to its representative contrary to CPR 6.10?

Maybe I can put forward the following explanations

a) I am a litigant in person and I did not know the CPR contrary to a professional lawyer

b) I was not aware that the Ministry of Justice was the Crown

c) The address that I used when I made my complaint was always this of the Ministry of Justice so it was difficult for me to imagine that the claim form should be sent to another address

d) I think that it is only a technicality and that the defendant want to take advantage of it because anyway the representative of the defendant has received my claim form because it should have been sent to him by the Ministry of Justice and it is why the defendant’s representative sent me this letter
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Re: Claim on the Crown incorrectly served

Postby south1 » Sat Oct 07, 2017 1:23 pm

If I have to make an application to the Court I do not know if I have to do it with notice or without notice?

I do not know also if I write a simple letter to the court it will be enough and I do not need to make any formal application with notice or without notice?

In this simply letter I could ask the court to consider that my claim was properly served when I sent it to the Ministry of Justice even though I did not send it to its representative contrary to CPR 6.10

Maybe I can say in this simple letter that CPR 6.10 is confusing and when it says that we have to serve the claim form on the defendant’s representative this could be interpreted also as being served on the defendant who will pass it to its representative as usually it happens.

I can maybe say also in this simple letter that anyway the defendant has received my claim and it should have sent it to its representative because its representative replied to me and as a consequence finally my claim has been served on its representative because he has finally received it. I can maybe say that if I have not served myself my claim form on the defendant's representative the defendant has served it itself on its representative. And that the defendant want to take advantage of a technicality not to respond to my claim

In this letter I will ask the court to order the defendant to accept that the claim form was properly served on it and to order the defendant to respond to it.
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Re: Claim on the Crown incorrectly served

Postby atticus » Sat Oct 07, 2017 2:24 pm

Any application to the court needs to be on the correct form and accompanied by payment of the correct fee. You do not just write a letter.

Any application that is remotely contentious should be one that is made on notice to the other parties.

I strongly commend you to read Gordon Exall's 'Civil Litigation Brief' blog. That will give you lots of pointers as to how the courts approach these applications.
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Re: Claim on the Crown incorrectly served

Postby blig » Sat Oct 07, 2017 5:01 pm

Or south1 could ask for mediation
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Re: Claim on the Crown incorrectly served

Postby atticus » Sat Oct 07, 2017 5:45 pm

Indeed, and the other party may take him up on that if they don't think his case is fatally flawed, on legal and/or procedural grounds.
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Re: Claim on the Crown incorrectly served

Postby south1 » Sat Oct 07, 2017 5:59 pm

I think that we make a formal application when we need to ask permission to the court to do something. However here I do not know which permission I can ask because I cannot ask for permission to serve my claim form to the defendant instead that to its representative because my claim form has already been sent to the defendant.

The question also is whether I have enough grounds to make an application or to write a letter or it is better that I simply abandon this claim.

Another issue is that the defendant has waiting more than one month after receiving my claim form before its representative informs me that the service of my claim form was defective. I would like to know if I can take advantage of this because if my claim was really defective the defendant should have told me before or respond to my claim within 14 days of receiving it as required by the CPRs?

We can use mediation only after the Direction Questionnaire has been filed
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Re: Claim on the Crown incorrectly served

Postby south1 » Sat Oct 07, 2017 9:07 pm

I am worried that if I make a formal application instead of sending a simple letter this could be an admission that I have done something wrong

I would like to know also if the fact that I have not complied with CPR 6.10 because I have sent my claim form to the defendant instead of having sent it to its representative is a reason for the defendant not to respond to it because after all its representative has finally been given my claim form by the defendant itself? Or this gives the right to the defendant only to make an application to have my claim struck out for this reason or to ask for more costs?
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Re: Claim on the Crown incorrectly served

Postby atticus » Sat Oct 07, 2017 10:36 pm

You can mediate at any time. You say to the other side "let's mediate this".
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Re: Claim on the Crown incorrectly served

Postby south1 » Sat Oct 07, 2017 11:09 pm

In order to mediate you need to have something to give in exchange but I have nothing to give in exchange because it is me who have not complied with CPR 6.10. Otherwise the other party will not mediate if it has nothing to gain in mediating
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Re: Claim on the Crown incorrectly served

Postby south1 » Sun Oct 08, 2017 3:11 pm

The Government Legal Department invites me to serve my claim form on it. However according to CPR 7.5 my claim form should be served upon within four months of having been issued and if I serve my claim again I will not comply with this deadline.

I can ask the GLD if I serve my claim late on it if it will not make an application to have it strike out but this is very unlikely because it is well known that defendants use any possibilities that they have to strike out a claim.

Another possibility is that I made an application under CPR 7.6 for an order extending the period for compliance with rule 7.5. but the issue is that such application should be made within the four months deadline or we have to have a good reason for not having done so. I do not know if I can say that I was a litigant in person and I do not know that the Ministry of Justice belongs to the Crown and that the defendant has sustained any prejudice. Or I can put forward any other grounds to which I make reference in my first post

I do not know if there could be others grounds that I can use to obtain permission from the court to issue after the four months deadline or it is better I abandon this claim but this will be regrettable because it was difficult for me to imagine that I had to send my claim form to the defendant's representative and not to the defendant because usually it is like that.
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