// WON \\ Taking on Iceland

[des8]

Re: Taking on Iceland

I am easily confused... which supermarket delivery van caused the problem, and which supermarket was named on the claim form?

I meant you should submit a response to their witness statement as [MENTION=71570]R0b[/MENTION] also suggests post 11

RE costs order: a request that if the set aside application is successful the court order that his costs for the rehearing of the claim would be met by the applicant.

[friendlyfire]

Re: Taking on Iceland

[MENTION=39710]des8[/MENTION] - no we have not given them our permission to send an application. Should we tell them/the Court we do not consent? And tell the Court too? What do you mean by "subject to a costs order?"
[MENTION=71570]R0b[/MENTION] - can you tell me whether the Denton Criteria is to our advantage here? The solicitors were liaising with my Father only in the capacity of insurance negotiators and were sent quotes and photos to proceed with the insurance claim. They then ignored six weeks of warnings from my father that we would take Tesco to Court if they did not hurry up. At no stage did they or Tesco advise that they should be the agent for service of a legal claim.

[R0b]

Re: Taking on Iceland

Cheeky buggers, have you submitted a response to their Witness Statement on the set aside? You might want to consider resisting their set aside application since they've not provided any draft defence as to why Tesco is wrongly named as the defendant, especially the fact that they have admitted that Tesco received the claim form on 30 May and that the recovery vehicles were called out to pull the Tesco vehicle away.

It is irrelevant as to whether the driver of the Tesco vehicle is specifically at fault, it is the issue that they called a recovery vehicle to remove it from the driveway - that was their doing not yours and so they are responsible for any damage caused by the recovery vehicles.

The fact is that Tesco failed completely to file an acknowledgement of service and just because they sent it on to their solicitors that did not preclude Tesco from acknowledging the claim.

I can't see how Plexus seem to be of the belief that Tesco is not liable for their own actions.

[friendlyfire]

Re: Taking on Iceland

THEIR APPLICATION FOR REMOVING THE DEFAULT JUDGEMENT -






They have asked for the Default Judgement entered for the Claimant to be set aside and leave to file a Defence as the Defendant has a "real prospect of Defending the claim that the Claimant has made."

They have asked for the application to be dealt with without a hearing.

The application is dated 7th July.

They originally invited my father to withdraw his claim in an email dated 3rd July and gave him a week to respond. I had spoken to them previously on my father's behalf and after seeing the email, called again, left a message, and was called back by the trainee solicitor at the firm who wrote the email, and told her straight we expected the Default paid in 30 days or would start a second claim for the 1K a week due to the hold up in repairs and sale of the house.

So I don't know why she is making out that lack of contact from the Claimant directly led her to make this application on 7th July???

More to follow...

[friendlyfire]

Re: Taking on Iceland

Hi all and thank you v. much. I will respond ot each post shortly and post their application.

Briefly though - to clarify, the Iceland van had no business being on my Dad's property as it had turned up at the wrong address for delivery and driven all the way to the top of the drive, coming through a closed gate, without permission or proviso.
[MENTION=71570]R0b[/MENTION] - the Default was applied for on the correct date, online, as we were using the Money Claim Online service and would not have been permitted to ask for it if the other side still lawfully had time to acknowledge.

[R0b]

Re: Taking on Iceland

I also agree with Des and Charity on this. I am not sure what their solicitors are really suggesting perhaps trying to pull a fast one. Your original contract for delivery was with Iceland and, if it was Iceland who arranged the tow trucks (and not you) then it is Iceland who is liable and they will in turn recover their losses from the tow trucks.

It would be helpful to see the set aside application form and any witness statement attached to it as to their reasons why it should be set aside. You did mention that they had until 20 June to acknowledge the claim but did you take into account the deemed service for MCOL which is 5 days after the claim form has been issued so it would be 19 days to acknowledge the claim - does that change things?

If it does, then you should perhaps consider consenting to the set aside as it is an automatic set aside if a default judgment was applied for too early. If it doesn't change anything then they would need to apply for relief from sanctions and the Denton criteria will apply. The courts have been very harsh recently on those who have failed to comply and refused to grant any relief from sanctions. If the claim was sent to Iceland for service and they failed to act quick enough that is generally not an excuse to grant relief however if their solicitors at any point indicated that they have been instructed to accept service for proceedings and you ignored that and sent it to Iceland's registered office, that would also be grounds for set aside as the service of the claim form would be invalid.

[charitynjw]

Re: Taking on Iceland

I agree with [MENTION=39710]des8[/MENTION].

Law of agency.....doesn't really matter whether the agent was acting with express authority, implied authority or 'apparent' (ostensible) authority.

[des8]

Re: Taking on Iceland

Hi and welcome.
So they have applied for set aside.
Has your father given consent for the application, and if so was it subject to a costs order?
If contesting the application point out to the court the extent of notice of the claim which Iceland had before service, and between service and making the application.
Scrutinise the application for errors (it will have been drafted in a hurry, which could lead to mistakes)

If the application is on the basis that the case was brought against the wrong defendant, it would be interesting to see their argument.
There appears to be no dispute that Iceland drove on to private property uninvited, and then Iceland instructed a third party to retrieve their vehicle.
That third party, acting as agents for Iceland, damaged the driveway.
Iceland are liable for the actions of their agents.
At least that's how I read the scenario.

Others?? [MENTION=71570]R0b[/MENTION]

[friendlyfire]

Re: Taking on Iceland

Advice???

[Kati]

Re: Taking on Tesco

Sorry I am slightly dyslexic. Can a mod change the title of the thread to the right name for the Defendant? Ie Iceland.

I'll give our @Kati a nudge for you.
(Every little helps, as they say. )

sorted xx

[charitynjw]

Re: Taking on Tesco

Sorry I am slightly dyslexic. Can a mod change the title of the thread to the right name for the Defendant? Ie Iceland.

I'll give our [MENTION=49370]Kati[/MENTION] a nudge for you.
(Every little helps, as they say. )

[friendlyfire]

Re: Taking on Tesco

Sorry I am slightly dyslexic. Can a mod change the title of the thread to the right name for the Defendant? Ie Iceland.