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I think Des has hit the nail on the head, this issue is about contractual intention and, in accordance with contract law principles, whether you contracted with the seller and not your husband. It really comes down to the facts and that would be something the judge would have to take a view on based on the evidence, so here's my interpretation.
- The invoice signed by your husband would prima facie (assumed correct unless proven otherwise) be the contracting party, not yourself.
- Likely to be further reinforced if the invoice and any other documentation only states his name rather than both your names.
- The payment of the deposit together with the invoice could also support him being the contracting party.
- Being the registered keeper is not evidence that you were the contracting party. For example, a father might buy his daughter a car as a gift and have the seller put the V5C in the name of the daughter. That does not mean the daughter has a right to sue the seller because it was gifted to her, there would have to be something more than that i.e. her name on the contract.
- Making a payment does not automatically imply you were party to the contract with the seller because the above example applies. Basic contract law dictates that only those who intended to contract will be the contracting parties. Another example is someone who has a mobile phone account and is able to take out multiple contracts for their family members - the rights and liabilities under those contracts will be with the mobile account holder despite the fact that someone else is the beneficiary. Same goes for being married, I wouldn't get too hung up on that because I thnk that's pretty irrelevant.
What can you do about the set aside application? Depends on how much you want to resist.
- You could resist the application and argue that you are the contracting party rather than your husband. In support of that you can point out the payments you've made, the V5C and the fact that the seller has been dealing with you from day 1 when you raised a complaint, never denying you weren't part of the contract. Therefore, they are estopped (prevented) from claiming that you are not party to the contract. Again, a judge would have to decide that as a point of fact but if that judge did indeed agree with you, then you could ask the court for summary judgment as the defendant has pleaded nothing else.
- Alternatively, you may want to consent to setting aside the default judgment with some caveats:*
a. There be no order as to costs on the basis of the Defendant's conduct.
b. Include as part of the Order that the parties agree to substitute yourself with your husband as the claimant - you'd need to comply with CPR 19 if you go** with this option I think.
Otherwise if you want to resist their application, invite them to make it and then submit a witness statement opposing the set aside. You could make the same arguments and if you lose, might be worthwhile asking the court to exercise its case management powers and substitute you for your husband as the claimant on the basis that if this claim is dismissedyour husband would simply issue a claim in his name and that would not be in accordance with the overriding objective especially the use of court resources at this particular time.
There's also the risk of costs if you lose, but you might be able to argue again that the Defendant did nothing to dispute the fact that you were claiming to be the contracting party and therefore by their own poor conduct, they have ended up in this situation so there should be no award of costs.
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Just my two pennies worth and it's not an exhaustive list nor have I fully read your thread here so apologies if there are some things I have got wrong.
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- The invoice signed by your husband would prima facie (assumed correct unless proven otherwise) be the contracting party, not yourself.
- Likely to be further reinforced if the invoice and any other documentation only states his name rather than both your names.
- The payment of the deposit together with the invoice could also support him being the contracting party.
- Being the registered keeper is not evidence that you were the contracting party. For example, a father might buy his daughter a car as a gift and have the seller put the V5C in the name of the daughter. That does not mean the daughter has a right to sue the seller because it was gifted to her, there would have to be something more than that i.e. her name on the contract.
- Making a payment does not automatically imply you were party to the contract with the seller because the above example applies. Basic contract law dictates that only those who intended to contract will be the contracting parties. Another example is someone who has a mobile phone account and is able to take out multiple contracts for their family members - the rights and liabilities under those contracts will be with the mobile account holder despite the fact that someone else is the beneficiary. Same goes for being married, I wouldn't get too hung up on that because I thnk that's pretty irrelevant.
What can you do about the set aside application? Depends on how much you want to resist.
- You could resist the application and argue that you are the contracting party rather than your husband. In support of that you can point out the payments you've made, the V5C and the fact that the seller has been dealing with you from day 1 when you raised a complaint, never denying you weren't part of the contract. Therefore, they are estopped (prevented) from claiming that you are not party to the contract. Again, a judge would have to decide that as a point of fact but if that judge did indeed agree with you, then you could ask the court for summary judgment as the defendant has pleaded nothing else.
- Alternatively, you may want to consent to setting aside the default judgment with some caveats:*
a. There be no order as to costs on the basis of the Defendant's conduct.
b. Include as part of the Order that the parties agree to substitute yourself with your husband as the claimant - you'd need to comply with CPR 19 if you go** with this option I think.
Otherwise if you want to resist their application, invite them to make it and then submit a witness statement opposing the set aside. You could make the same arguments and if you lose, might be worthwhile asking the court to exercise its case management powers and substitute you for your husband as the claimant on the basis that if this claim is dismissedyour husband would simply issue a claim in his name and that would not be in accordance with the overriding objective especially the use of court resources at this particular time.
There's also the risk of costs if you lose, but you might be able to argue again that the Defendant did nothing to dispute the fact that you were claiming to be the contracting party and therefore by their own poor conduct, they have ended up in this situation so there should be no award of costs.
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Just my two pennies worth and it's not an exhaustive list nor have I fully read your thread here so apologies if there are some things I have got wrong.
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