An interesting case

[Andy1976 10]

Thought this might be of interest to some. Quite a topical issue that's currently happening.

 

So, this is a case that I have an involvement in. I, of course, won't go into names etc, and this isn't Sheffield, or anywhere near, so it's not local as such, but it's topical. I've permission to anonymise and discuss this.

 

Here's a brief summary of the situation. (This is an ongoing situation that will, I'm sure, be reported in due course).

 

Person A is a motorist. Person B, also a motorist, is driving on a main road, and collides with person A. The circumstances are less than clear cut, so nothing is resolved quickly. They both blame each other, but B isn't hurt at all, so isn't bringing any claim.

 

A instructs a very well known law firm to pursue a claim against B. B contacts their insurers, who say they will deal with the claim for them.

 

A's Solicitors, as is common with them, are somewhat trigger happy, and start proceedings at Court very quickly when nothing is agreed. They have B's address, so serve papers on them directly (you can ask the Court, but they don't do that).

 

B identifies as gender non-binary. B receives the Court papers from A's Solicitors in a plain white envelope. There's nothing marking it as from Solicitors, other than it's franked.

 

The envelope is marked for Mr <First Initial> <Surname>...... B, not accepting this terminology or greeting, doesn't open the envelope, but says they return it to sender.

 

You may or may not know that if you don't reply to Court papers in 14 days, your opponent can get a County Court Judgment against you by default. That's exactly what happened. A's Solicitors, again very quickly, on day 15 in fact, ask the Court for Judgment, and get it.

 

Insurers find out, and tell B, who says that A never sent the papers correctly. B now has a hearing with their now instructed Solicitors acting to try to get this Judgment dropped, on the basis that the papers weren't sent correctly. A's Solicitors are as typically stubborn as they always are, and won't agree to set the Judgment aside. I suspect they might if they get something out of it (eg money) but at the moment, they say no chance.

 

Questions are these:-

 

1. If you were a Judge, would you accept this as a reason not to answer Court papers, and let B fight the claim; (What would you do)

 

2. Leaving the law aside, because it's not clear, do you think a Judge will let B back in to fight the claim? (What would a Judge do). I say leaving law aside as there are arguments both ways as to whether or not they should. I suspect it will be simply down to the Judge. I also suspect there'll be an element of public interest in it, which might affect his decision.

 

Very interesting case, that I thought I'd share!

[DC89216 10]

Skim read it.

 

The Judge and system will bend over backwards for the person that feels a victim (B yes?).

 

Personally, I think B is mentally ill and A should wash his hands with the whole thing and brick his windows.

[Andy1976 10]

Skim read it.

 

The Judge and system will bend over backwards for the person that feels a victim (B yes?).

 

Personally, I think B is mentally ill and A should wash his hands with the whole thing and brick his windows.

 

Apologies for the length. There was quite a lot of info to get in there

 

Interesting answer - A also feels a victim of course, as B injured them, allegedly through B's fault. Does one level of 'victim' out value another?

[sgtkate 10]

The fact the person is non-binary seems to have no impact on the case. Unless the letter was sent via tracked and recorded mail there is no evidence any court papers were ever sent or received by the recipient.

 

What would the law be if someone sent me court papers with my name misspelt? I think the addition of the non-binary gender part will just cause a lot of people to get their knickers in a twist and start making utterly irrelevant comments.

 

---------- Post added 01-08-2017 at 16:03 ----------

 

Skim read it.

 

The Judge and system will bend over backwards for the person that feels a victim (B yes?).

 

Personally, I think B is mentally ill and A should wash his hands with the whole thing and brick his windows.

 

As if to prove my point about how people will jump on the non-binary gender part and lose the plot.

[Andy1976 10]

The fact the person is non-binary seems to have no impact on the case. Unless the letter was sent via tracked and recorded mail there is no evidence any court papers were ever sent or received by the recipient.

 

What would the law be if someone sent me court papers with my name misspelt? I think the addition of the non-binary gender part will just cause a lot of people to get their knickers in a twist and start making utterly irrelevant comments.

 

Ah but it actually does here. B says expressly 'there was a letter, but it was addressed to Mr B Johnson (changed name) and that's not me'.

 

Court Proceedings are rarely, if ever sent recorded. I've sent three lots this afternoon, all by standard first class post. Ironically, if B had said 'I never got them', this wouldn't be happening, as A's lawyers would be stupid to fight that.

 

As for misspelling your name - arguably, yep, you have a reason to have the Proceedings struck out. The Practice Direction says that the papers have to state the person's full name, including title. Equally arguably, it's a minor point, so would/should be overlooked, but if you wanted to be pedantic, you could certainly make the person who sent it apply to change it and cause problems.

 

Edit to add - yes, it's effectively the same as refusing the papers on the grounds the name was incorrect, but B's instructions are specifically on the title used on the letter.

[sgtkate 10]

Ok, so if someone sent me a letter saying Mrs rather than Miss or Ms and I refused it what would the law be? Also, if they are saying they received a letter but didn't open it then how can they know the letter they ignored was court papers?

[Andy1976 10]

Ok, so if someone sent me a letter saying Mrs rather than Miss or Ms and I refused it what would the law be? Also, if they are saying they received a letter but didn't open it then how can they know the letter they ignored was court papers?

 

And that's A's argument. Exactly that. Mrs/Ms/Miss wouldn't generally be an issue.

 

B's argument is that it is. B will say that the rules are very clear (which to be fair they are) and that the rules say that the parties must have their full, correct legal title on the papers. B says that A should have to now retrospectively apply to get the full name correct.

 

This is why I said that legally, I can see both points. I know what I suspect will happen, but I can see how it could be argued both ways.

 

As for the letter, they 'assume' it was the Court papers. It became very clear when Judgment was entered though and in any event, the insurers were sent a copy of the papers also and followed it up I understand. As I say, it's a whole load of issues!!

[sgtkate 10]

And that's A's argument. Exactly that. Mrs/Ms/Miss wouldn't generally be an issue.

 

B's argument is that it is. B will say that the rules are very clear (which to be fair they are) and that the rules say that the parties must have their full, correct legal title on the papers. B says that A should have to now retrospectively apply to get the full name correct.

 

This is why I said that legally, I can see both points. I know what I suspect will happen, but I can see how it could be argued both ways.

 

As for the letter, they 'assume' it was the Court papers. It became very clear when Judgment was entered though and in any event, the insurers were sent a copy of the papers also and followed it up I understand. As I say, it's a whole load of issues!!

 

Well if the law says that the name must be EXACT and the court papers sent did NOT have their official name EXACTLY correct then surely the court should allow them to dispute the case. I don't see any difference here than the example I posted above where if someone got my title wrong would I be able to legally dispute the court papers?

[tinfoilhat 11]

And that's A's argument. Exactly that. Mrs/Ms/Miss wouldn't generally be an issue.

 

B's argument is that it is. B will say that the rules are very clear (which to be fair they are) and that the rules say that the parties must have their full, correct legal title on the papers. B says that A should have to now retrospectively apply to get the full name correct.

 

This is why I said that legally, I can see both points. I know what I suspect will happen, but I can see how it could be argued both ways.

 

As for the letter, they 'assume' it was the Court papers. It became very clear when Judgment was entered though and in any event, the insurers were sent a copy of the papers also and followed it up I understand. As I say, it's a whole load of issues!!

 

I think B is hoping for a minor miracle. That said my mate still gets her BT bills saying Mrs rather than Miss, despite several phone calls in the past. Can she get those bills refunded? In many respects I hope not because that means the worlds gone bat **** mad.

[Andy1976 10]

Well if the law says that the name must be EXACT and the court papers sent did NOT have their official name EXACTLY correct then surely the court should allow them to dispute the case. I don't see any difference here than the example I posted above where if someone got my title wrong would I be able to legally dispute the court papers?

 

And that's B's argument.

 

It'll be an interesting hearing when it happens!

 

You have A saying 'well if I put Ms instead of Mrs you wouldn't have ignored it' and B saying 'the law says you have to get it 100% right, and the person you quoted doesn't exist'.

 

In honesty, I've seen countless minor errors on names before (Smith instead of Smythe for example, or companies being spelt incorrectly) and no one has taken the issue at all. I've seen people issue against SwiftCover when they mean AXA and so on. No problems at all.

 

In theory they could take the issue, but people don't.

 

Will be interesting to see how a Judge reads this one!!

 

---------- Post added 01-08-2017 at 16:42 ----------

 

I think B is hoping for a minor miracle. That said my mate still gets her BT bills saying Mrs rather than Miss, despite several phone calls in the past. Can she get those bills refunded? In many respects I hope not because that means the worlds gone bat **** mad.

 

Not bills, but if she failed to pay and they sued her for the debt in the wrong title, could she argue it I wonder. Let's see what the Judge decides in a couple of months and I'll tell you!

[natjack 10]

Just out of idle interest, what would be the correct way to address a letter to a non-binary being?

 

Just in case it ever arises in my world.

[tinfoilhat 11]

And that's B's argument.

 

It'll be an interesting hearing when it happens!

 

You have A saying 'well if I put Ms instead of Mrs you wouldn't have ignored it' and B saying 'the law says you have to get it 100% right, and the person you quoted doesn't exist'.

 

In honesty, I've seen countless minor errors on names before (Smith instead of Smythe for example, or companies being spelt incorrectly) and no one has taken the issue at all. I've seen people issue against SwiftCover when they mean AXA and so on. No problems at all.

 

In theory they could take the issue, but people don't.

 

Will be interesting to see how a Judge reads this one!!

 

---------- Post added 01-08-2017 at 16:42 ----------

 

 

Not bills, but if she failed to pay and they sued her for the debt in the wrong title, could she argue it I wonder. Let's see what the Judge decides in a couple of months and I'll tell you!

 

B would have opened it if it had Lotto franked in it. That said it serves As legal team right and they should stump up. It annoys me when people don't do their job properly!