Over the last week ive been preparing for hearings only to be trumped at the eleventh hour by discontinuance. Both cases were bitten by Mitchell one way or another.
The first case was due to be heard at trial, and three days before trial the Claimant asked for an adjournment by consent as they didnt have a witness for trial. I pointed out that taking into account Mitchell i couldn’t agree, but if a good reason was provided for the witnesses non-attendance then i may agree to “not stand in the way of an app to adjourn”
The Claimant wasnt happy with this, so it sought an indicated from the Court. Apparently behind our back there was a hearing, and the Claimant asked the Judge to adjourn, he refused citing Mitchell!!!!!. So the Claimant abandoned its claim and paid the costs.
Then there was the second case, this one the Claimant had hung itself without realising. The Claimant issued proceedings, it hadn’t got its house in order and on request for documents it failed to adhere to the CPR ( Rule 31.14) and therefore the Defendant made an application to the Court for an unless order that the Claimant do allow inspection of the documents mentioned in its claim form.
An unless order was made, and the Claimant didn’t comply with it, instead acknowledging its difficulties, it applied to extend the time. The Court however struck out the Claimant. So an app for relief was made, however the Claimant again did not comply with its own order and was at serious risk in my view. The Court had listed the hearing to take place shortly, however the Defendant instructed me, so i set about a full and thorough review of the case. It came to light that the Claimant had sued under the wrong agreement for starters, the agreement produced under the unless order had been discharged long ago.
Also the Claimant had not allowed inspection of the assignment. In short it was in extreme difficulties.
Bizarrely the Court went and made an order of its own motion, reinstating the claim with a clear unless order requiring disclosure and inspection and thereafter the Defendant must lodge a Defence.
Since i had enough to plead with, i lodged a Defence, sensing the Claimant was so twisted in knots that discontinuance was on the cards and thus protecting my client from discontinuance and restarting a new claim.
I had Counsel briefed and ready to roll to oppose the reinstatement of the Claim and to seek an order confirming the Claimant is struck out, if not under the unless order for non compliance with inspection then on the basis that the Claimant plainly had got the wrong agreement, been assigned the wrong agreement and thus no debt was due.
The Claimant obviously having been placed on notice of the train wreck approaching it, abandoned its claim.
The quote ” the Claimant has no appetite to continue” is a pretty good assessment of the case. They thought they had a Sirloin steak but instead they got served up something from the bush tucker trial off Im a Celebrity get me outta here