Set Aside Hearing

[man123]

Hi.

I may have to attend a hearing for an application of a judgment to be set aside. I am the claimant and I am a bit unsure of the process of the hearing - Will I be able to question/cross examine the defendant in this hearing, use evidence already submitted as particulars of claim (emails, call recordings, images etc) and evidence that was not submitted in the original particulars? I can categorically prove that the defendant has lied and made multiple mistakes on the application.

I would appreciate any advice on what I can expect in the hearing and how best to prepare for it.

Thank you

[Amethyst]

What is their application for set-aside based on ? ( had you obtained a judgment in default / served it at the right address etc? ) What are your reasons for denying the set-aside request ?

Have you submitted a witness statement or anything in advance of the hearing ? or has a hearing not actually been ordered as yet?

[man123]

Thanks for your very quick response.

Their application for set-aside is based on several points:

1. Lack of particularity in my initial claim form.

2. In breach of mandatory requirement set out in CPR 7.4 (1) b.

3. That I brought proceedings prematurely and contrary to the express term of the lease agreement with regard to dispute resolution.


I obtained judgement in default at the start of the year. They do not deny receiving it but claim it may have been mislaid until after the date where they could submit a defence.

My reasons for it not to be set aside:

1. Nearly all of their witness statement is built on lies, of which I can evidentially prove through emails, recordings (they were unaware of these recordings) and other communication.

2. There are multiple basic mistakes within the statement in regard to the background of the claim, e.g. they have exhibited a different contract to the one that they are referring to; stated that the house had more bedrooms than it does; and various other mistakes

3. As far as I am aware they have very little to evidence their claims within the statement and application.

4. The excuse that the court documents were mislaid in the office.

5. The excuse that the claim was addressed to their company and not a specific member of the team.

6. Claiming they did not receive the particulars - again I can prove through email tracking that they did receive them.


As far as I am aware, I have done everything to the letter of the law with regards to issuing the claim properly.
I obtained a high court writ and bailiffs were instructed to reclaim the debt, however, they were then shown the notice of transfer.
I served very detailed particulars, within 14 days of serving the claim, containing my evidence - photos, videos, communication logs etc, however, I did not include a witness statement at that point as I thought that could be addressed verbally in court if it reached that stage.

I have just found out that a hearing has now been ordered to decide whether it will be set-aside, which will take place over 200 miles from where I live unfortunately.

Any help would be gratefully received.

Thank you.

[Amethyst]

The claim would be addressed to the company, not a specific individual.

Did you serve the particulars on paper as well as by email ?

Did you issue the original claim through MoneyClaim online or at your local court ? Is the hearing transfered to a court near the defendant ?

Are you claiming against them as a business or an individual ?

[man123]

Due to the format and quantity of the particulars I had to serve them via a link using online storage.

Original claim through MoneyClaim.

The hearing has been transferred to the defendant's local court.

Claiming against them as a business.

[Amethyst]

Okay that may well be your problem ... hang on I'll find the case from a couple weeks back.

[Amethyst]

Have a read of this ... Think he links to the judgment in that article - http://www.civillitigationbrief.com/...ant-in-person/
The Supreme Court dismissed the claimant’s appeal in Barton -v- Wright Hassall [2018] UKSC 12. Service by email on a solicitor who had not confirmed they would accept service was not good service. A claimant would not be granted any special dispensation or relief because they were a litigant in person. The Civil Procedure Rules are publicly available and could, and should, have been consulted prior to any attempt on service.

The press summary is available here. The full judgment is available here.

[man123]

Thank you for your help.

[Amethyst]

So I'm thinking you might want to consider consenting to the set aside application, re-serve your extended particulars, and allowing the defendant to proceed with their defence, which you can then reply to and the case proceed as normal.

[Diana M]

From what you say the Defendant has made an Application to the court to set aside the Default Judgment which you obtained on the basis that they failed to file their Defence by the court deadline.

They also say (according to you) that the reason they failed to file their Defence by the deadline was because they mislaid the court documents within their office. The question is whether a DJ would consider that a good enough reason to set aside the Judgment using his discretion.

That may depend on what the Defendant has said in their Application (CPR 13.2 or CPR 13.3 or both).

Common sense says if they admit that they "mislaid" the court documents then they must have received them in the first place in order to have lost them temporarily. Is that not an admission that they had been served with the claim (correctly or otherwise)? Did they file an Acknowledgement of Service at some point?

I've not seen the set aside Application presumably supported by a Witness Statement and I don't know whether their other arguments (inadequately pleaded Particulars of Claim?) have been filed/served as a Draft Defence to demonstrate to the court that if the CCJ were to be set aside then they have likely prospects of success with a Defence if they are given the opportunity. Have they filed a Draft Defence?

Before suggesting whether you should consent to a set aside (which you believe you obtained fairly and squarely when they missed their Defence deadline) or whether you should contest it (by filing a Witness Statement at court with your version of events on the service issue) can you give a little more information.

What is the claim about (photos, videos, and communication logs have been mentioned) and how much is it for?

There's always a need to consider any costs consequences when making a decision based on all the options available to you.

If they win the set aside then you may be asked to pay their legal costs for the set aside (have they instructed solicitors?) but they would still have to defeat your claim which won't be decided at that set aside hearing.

If the claim is for less than £10k (is it?) then if the set aside is granted/consented the claim still exists and would be allocated to the Small Claims Track where even if your claim failed you would not have to pay their legal costs unless there are conduct issues.

The £10k limit for the Small Claims Track isn't hard and fast because it might be considered for allocation to the Fast Track if there are sufficiently complicated legal arguments, but without knowing what the claim is about it's not possible to speculate.

In the Fast Track the loser pays the winner's costs unless there have been conduct issues, so there could be a costs risk to you if your claim is over £10k.

When was the claim issued (date) and when was your Default Judgment (date) because I note that you have already started enforcement measures with bailiffs?

Set aside applications must be made promptly so when would they have known of the CCJ (or was that "mislaid" too) and would that have been before or after you instructed bailiffs and they were served with a Warrant?

Finally, if this claim is for less that £10k then you should have the opportunity to attempt to settle this dispute by free telephone Mediation if/once the CCJ is set aside and the Defendant files a Defence etc. That may depend on any Order/Directions made by the DJ if/when granting the set aside Application. This could even include Directions for you to amend your POC - it may not if the DJ is satisfied that they are adequate.

I hope this post explains the court process so that you can make an informed decision on whether you should consent or contest the Defendant's set aside Application taking on board any potential cost consequences.

At the moment you have your CCJ. When is the Hearing listed?

Di

[man123]

Thanks very much for your very helpful and detailed reply. I actually have a solicitor helping me with the claim now, however, I really appreciate the time you have taken to reply and I will be in touch if I need further assistance.

[Diana M]

Thanks very much for your very helpful and detailed reply. I actually have a solicitor helping me with the claim now, however, I really appreciate the time you have taken to reply and I will be in touch if I need further assistance.

It makes sense to contact a lawyer if you find yourself in a legal situation such as yours which requires a professional input.

I hope you get the outcome you're seeking.

Di

[man123]

One quick question: the date the defendant entered on page one of the application is incorrect (incorrect month and year), and it's a month before I entered judgement in default. However, the date where they have signed the application is the correct date. Will this have any impact on the decision of whether judgement is set aside?

[man123]

One further question: the defendant (an organisation/company) requested that the hearing for judgement to be set aside is in their local court, which is 200 miles from me. I am a litigant in person, so can I request that it be transferred to my local court instead?