*** Won *** Judgment issued, but bar subsequently put in place ?

[R0b]

Sorry to chime in so late but with reference to a set aside only applies to a default judgment and as far as I can see this isn't a judgment by default within the meaning of the CPR. Rule 12.1 defines a default judgment as a:

"judgment without trial where a defendant:-
(a) has failed to file an acknowledgment of service; or
(b) has failed to file a defence."

In this case I can't see the above definition apply as the defence was struck out by failing to send in the DQ. Therefore as I see it, the defendant's only recourse would be to appeal, or if the defendant was savvy enough, they would have immediately re-submitted the DQ and then an application for relief from sanctions.

In terms of appealing, the general costs rules apply in the same way a set aside applies, but there could be an argument that this was created due to the defendant's failure to send the DQ in on time so they were to blame themselves in all of this and so no costs should be awarded. Alternatively you could potentially argue that the claim is likely to end up on the small claims track in that case, the no-costs rule should apply in relation to the appeal.

Appeals would still cost the defendant either way but unless they employ a solicitor to do the appeal (which also comes at a cost), then the defendant is perhaps likely to make a flawed application in some shape or form.

[kettlaness]

Is there a risk of the Ltd company going into admin/liquidation before you are able to enforce ?

I think it very unlikely indeed.

Does the Ltd company you have found with the same name have the correct address / director etc. Would you be sending the HCEO to business premises ?

Yes, the Ltd company that I found does have the same address. Yes, I'd send the HCEO to the same address.

The claim has been brought against the company name ( whether or not you put Ltd at the end of it - but the company name rather than the director ) ( just checking )

Yes, the claim has been brought against the company name, rather than the director.

[kettlaness]

I telephoned Money Claim this morning, they still can't find the Defendant's DQ; they've suggested that I call them back in a few days, to see if it has been found - which is what they told me last Monday.

Thank you all, for providing such helpful comments; I'm on a (very) steep learning curve, but your guidance is proving to be very useful to me.

[Amethyst]

I do despair of the court at times like these, they are simply useless. They appear to have cocked up and common sense doesn't seem to be something they are able to use leaving you in limbo while they get their house in order.

The strike out of the defence order would have a 7 day vary clause on it, and if it isn't sorted out then it would be available to obtain a default judgment ( as the defence has been struck out )… so the other side would be applying to set aside the default judgment to enable them to apply for relief from sanctions ( the strike ) it would be done as a single application. They must have something deadline wise in place with the other side, I simply don't understand why, if the other side have provided evidence that the DQ was filed but the court have lost it, they haven't just given the other side X days to file a replacement DQ or file for relief & set aside. To just put it on hold for a random amount of time to see if it shows up simply isn't on.

Have you had any contact with the other side at all ?

[kettlaness]

. . . . . . . , if the other side have provided evidence that the DQ was filed but the court have lost it, . . .

I agree with this ^^^; the only explanation that I can offer, is that perhaps the document which arrived at the Court was discarded - on the basis that it was irrelevant or too late. In other words, the court received it and having viewed the contents, binned it. Mind you, wouldn't they keep a record of all paper trails ?

(Being very pedantic, without anyone having seen it, there's no evidence that it was the DQ that was filed - we can only make this assumption on the word of the Defendant . . . though I think it almost certain, that it was the DQ - I can't think of another document that they might have sent by registered mail).

They must have something deadline wise in place with the other side, I simply don't understand why, if the other side have provided evidence that the DQ was filed but the court have lost it, they haven't just given the other side X days to file a replacement DQ or file for relief & set aside. To just put it on hold for a random amount of time to see if it shows up simply isn't on.

I agree, the current situation is that the whole issue is 'on hold' - for how long, is anyone's guess. Following this, the Defendant will probably apply for set aside - but only after a few more weeks have passed.

Have you had any contact with the other side at all ?

Only in the sense that I've sent them information (under the impression that it would be reciprocated), but they've sent nothing back in return.

I really don't think that they know what they are doing; which is understandable, because at times, I find it pretty hard going.

[kettlaness]

I do despair of the court at times like these, they are simply useless. They appear to have cocked up and common sense doesn't seem to be something they are able to use leaving you in limbo while they get their house in order.

I've just received the following update . . .

--------------------------------------------------------------------------

(verbatim)

Good afternoon,

I am writing with regard to the above claim.

Please be advised that the above case has been referred to a District Judge or court appointed Legal Advisor for directions on how to proceed. It can take 8 - 12 weeks to receive a response at which point you will be notified accordingly.

--------------------------------------------------------------------------

Knowing my luck, it'll take at least 3 months to get a reply; following which, the Defendant will delay things even further. If, as I expect, the Defendant is permitted to re-submit their DQ, I can't see the matter being resolved this year. [The claim was originally made on 10th April and the judgement was issued on 19th June].

What will the District Judge (or court appointed Legal Advisor) do in this situation ? - is it likely that they will merely look at the matter of the missing DQ (only) - the 'easy' option, or might they make a more 'considered' decision, based on the Defendant's likelihood of winning the case ?

If it takes the District Judge (or court appointed Legal Advisor) 8 - 12 weeks to make a decision, will the Defendant be able to apply for set aside so long after the judgement ?

[Amethyst]

Bonkers. If I were a DJ, in this situation, I'd ( after shouting at the idiots who lost the letter sent registered post ) issue an order that the DQ be filed and served within 7 days, if it is, the judgment be set aside and the claim proceed, and if it is not, the bar on the claim be lifted and you keep the judgment and proceed with enforcement. But that's me, and I'm vaguely sane....so really who knows !

The delays caused by the court wouldn't affect the claimant applying for set aside, he is as much in the dark as you tbh, although if I was him I'd already have resent the DQ and a copy to you, probably with a letter asking for it to be allowed due to the courts error and the claim allowed to proceed on the defence already submitted ( probably a letter to test the water before expending on a formal application ) …. but if it isn't allowed, and the DJ looks at this DQ issue and allows enforcement to proceed, whack a relief from sanctions/set aside application into court pretty sharpish.

You are only arguing I believe over part of the claim, part of it was admitted ( is there an offer to pay on the admitted part btw ?)
Do you want to go through the claim a bit to see if there are any thoughts as to whether you are actually wasting your time trying to get this sorted for the disputed part or may well be better accepting the admission ? not sure we've actually discussed much about the actual claim?

[kettlaness]

You are only arguing I believe over part of the claim, part of it was admitted

Not quite, the (only) point of agreement, is that they agree that condition of the purchase as they sold it to me was 'As New'.

( is there an offer to pay on the admitted part btw ?)

No.

Do you want to go through the claim a bit to see if there are any thoughts as to whether you are actually wasting your time trying to get this sorted for the disputed part or may well be better accepting the admission ? not sure we've actually discussed much about the actual claim?

My claim is as follows :

I bought a 'As New' Induction Range Cooker in January 2016.

The retailer describes the items that they sell as [verbatim] :

---------------------------------------------------------

'We sell graded items which are brand new items that have been returned to the manufacturer. They are not factory seconds or inferior goods in anyway. They are simply items which have been returned either unopened or under retail outlets 28 days no quibble policy.

The items may be returned for one of the following reasons:

Customer simply did not like/want item
Item may have packaging damage
Item may have had slight cosmetic marks
Item may be from a failed delivery/cancelled order. (once handled by a courier they are no longer classed as brand new and so are graded)
Retail outlet may have over stocked/under sold and return to manufacturer for credit

These are the most common reasons for the items being returned. Once an item has been sold, whether it reaches the end user or not, it cannot be resold as brand new - it has to be sold as graded. This means that some of the items will be brand new and never been out of the box.

Items are non-refundable. *

Under the 6 months warranty given with each appliance we will provide an engineer or swap for another of the same appliance if the item breaks down. If you picked up the item from us, then you are responsible for bringing it back in event of an exchange. If it was delivered by us, then we are responsible for picking the item up for exchange.

---------------------------------------------------------

Unfortunately, we decided to purchase the range cooker from this company for £1000 plus delivery of £55. Elsewhere, the same cooker was selling for about £1,500.

We weren’t at home when the cooker arrived – we arranged for an electrician to be there to install and connect the cooker to the electrical supply. Cosmetically, the cooker looked to be in very good order - indeed, it still does.

From the very first day, we found that the hobs would randomly switch ‘On’ and ‘Off’ or change the selected setting. We had never used an induction cooker before and we simply assumed that we were doing something wrong. Frequently, we'd blame each other for having changed the settings on the stove. In other words, we thought that all the faults were down to 'user error', rather than being with the stove.

After 6 months, we assumed that we had no rights of complaint.

The cooker was taken out to check the wiring a few months ago (April this year), we found a (torn) sticker on the back, but it was clear that the word on it was 'Salvage'. We could also see, that all the manufacturer's unique serial numbers had been removed. All non-unique marks were still on the machine - the models name and type, but all unique identifiers had been removed.

I contacted the manufacturer; they told us that they put 'salvage stickers' on items which are 'damaged' or 'faulty' and they also remove the serial numbers. They said that they do this with agreement with Trading standards. Anyone buying a 'salvage ' item does so at their own risk and this is the basis under which they dispose of them.

I presume, that by selling 'damaged' and 'faulty' items which are labelled as 'salvage' and with the unique identifiers removed, the manufacturer is thus protecting themselves from any possible litigation under the 1987 Consumer Protection Act ? In a situation where the manufacturer puts a salvage sticker on one of their products, they are effectively absolving themselves of any responsibility - meaning that any unwary purchaser has no rights of redress, under any laws which have been laid down to protect the consumer ?

In other words, had my cooker caused damage or harm, I'd have been unable to raise a claim against the manufacturer ?

Interestingly, the manufacturer of the cooker, told us that they would be 'willing to substantiate our case' and that they have no dealings with the company from whom we made the purchase.

We started the complaint in March 2018 - 26 months after we made the purchase, so obviously, the onus is on us to provide substantial evidence on which to make a claim.

---------------------------------------------------------

The defence statement is as follows :


1. It is admitted that the defendant sold the product to the claimant with a 6 month warranty.

2. the defendant neither denies or accepts that a qualified electrician installed the cooker, the defendant requires evidence a qualified electrician installed the cooker. If it was not installed by a qualified electrician this would void any warranty given.

3. It is disputed that there were any defects with the product; C;laimant had not notified the defendant on any defect until March 2018. This is approximately 27 months after the cooker was sold.

. It is denied there was a salvage sticker on the cooker, this is false and misleading. Claimant is reminded of his duty that the burden is on him to prove his claim and also a duty not to mislead the courts. claimant is to put strict proof on same.

4. Claimant is required to provide evidence that he notified the defendant of any defects since January 2016, other than his letter of complaint of March 2018.
---------------------------------------------------------

As may be seen, it isn't much of a 'defence statement' - in my opinion.

I sent a photo to the defendant, showing the 'salvage' sticker; however, they don't know about any of the information that I received from the manufacturer - as this was ascertained AFTER the claim was submitted - and I haven't yet been asked to supply any evidence.

* They say that the items they sell are 'non refundable' - are they allowed to do this ?

I'd be pleased to hear any of your thoughts/comments

[kettlaness]

AArgh !

I don't what is going on - and certainly not the 'logic' behind it.

Briefly, I applied for (Default) judgement against the defendant - having been provided the opportunity to do so on MoneyClaim - because the defendant didn't provide information as requested by the court.

Take a look at the (edited) document below, that I received this morning.

The name given for the Defendant in the form below, is the company name - incidentally, it is a limited company.

My purchase was from the company and my complaint is against the company (not an individual) so how can the case be transferred to a Defendant's home court, on the basis that the Defendant is an individual ? (Their home court, is many hours from where I live).

I've got seven days to reply, so any prompt responses would be much appreciated.

I can't understand why the defendant has asked for judgement to be set aside, on the basis that they weren't notified of the hearing. I haven't heard anything about a hearing either - there wasn't one, because it was a default judgement. How can there be a hearing, in the case of a default judgement ?

I'm not sure what I'm supposed to do at this stage - do I send a letter asap to the judge and ask that the case is heard at my local court ? Do I send in an application to the court for a hearing (with the required fee) and do I send in my evidence at this stage ?






I'm still not sure what this ^^^ letter means; it says that - "It is ordered that" (1). The judgement be set aside, but (2) suggests that it is an application for it to be set aside ?

So has it been set aside ?

Or is it saying that IF it is to be set aside, an application (and payment) will have to be made by the defendant within 7 days ?

Whilst the contents and meaning of the above letter are probably 'obvious' to you, they certainly aren't to me. Am I required to do anything at this stage, or is it just a matter of sitting and waiting ?

[kettlaness]

I've just taken a look on the MoneyClaim website and it says :

---------------------------------------------------------------------------------------

The bar in place for (defendant's name) was removed on 12/07/2018

An application to set aside (remove) judgment against (defendant's name) was submitted to the court on 12/07/2018

The application to set aside (remove) judgment against (defendant's name) was granted on 12/07/2018

---------------------------------------------------------------------------------------

Okay, it appears that the judgement HAS been set aside.

Given the letter listed in my previous posting (which I received this morning) and this information on MoneyClaim, just what am I supposed to do now ?

Is the onus on me to take some form of action, or the defendant ?

[kettlaness]

The full history on Money Claim is as follows :

---------------------------------------------------------------------------------------

Claim History

You submitted a claim on 10/04/2018 at 09:55:26

Your claim was issued on 11/04/2018

(defendant's name) filed an acknowledgment of service on 18/04/2018 at 08:02:24

A bar was put in place for (defendant's name) on 01/05/2018

(defendant's name) filed a defence on 01/05/2018

DQ sent to (defendant's name) on 01/05/2018

DQ filed on 10/05/2018 {By myself, the claimant}

General sanctions order was made on 29/05/2018

The defence was struck out on 15/06/2018

The bar in place for (defendant's name) was removed on 18/06/2018

You submitted a judgment against (defendant's name) on 18/06/2018 at 17:28:25

Your judgment against (defendant's name) was issued on 19/06/2018 at 19:08:40

A bar was put in place for (defendant's name) on 26/06/2018

The bar in place for (defendant's name) was removed on 12/07/2018

An application to set aside (remove) judgment against (defendant's name) was submitted to the court on 12/07/2018

The application to set aside (remove) judgment against (defendant's name) was granted on 12/07/2018

---------------------------------------------------------------------------------------


What is evident, is that the defendant has been very successful, at 'stalling' the process al the way through the proceedings.

The application for set aside was granted two days ago - Is the onus on me to take some form of action, or the defendant ? Or will it be up to the court to do something to get things moving ?

I'm very anxious that I don't lose out, because I haven't taken some course of action that is required within the next few days.

I'd gratefully appreciate any thoughts as to what I should do at this stage.

'Thank you'

[Amethyst]

The court should order the Defendant to file his defence now, unless the court have just reset the claim back to DQ stage …. it depends what the application actually was ..... but you should have had a copy of the application and notice of the hearing ( or no hearing ) and you should receive an order stating the judgment has been set aside which will ( should ) have detail what's required going forward. I think though I'd ring the court Monday and ask.... if they've now accepted the DQs and continuing with the original defence the claim will be transferred to the Defendants local court ( most likely ) and will be in limbo for a little bit before they sort it out and send notice of hearing or directions.

[Amethyst]

Ahhh two mins lol, didn't see the previous post... doh !

[Amethyst]

Right, yes the application was made ex-parte so it was just applied for and decided without you having any input - likely because it was just a tiff about the DQ being filed or not ( hence the 'judgment entered in error - as it was courts mistake )

Only the Defendant can apply now to set aside THIS order ( can't imagine why they would as they got what they applied for ) and yes it is worded very poorly, but no there's no direction/order for you to deal with. Paragraph 2 break it down and note the word ' IF '

As the Defendant is a company it should be moved to your local court that you requested in your directions questionnaire. It's a standard form of wording which isn't really applicable so don't worry.

I'd still ring court Monday and check if it's just returned to DQ stage and that you are right to await directions from the allocated court, oh and check that the original defence filed is the defence being used.

Reading back a little further to see what this is all about now xxx

Ahhh yes, the salvaged cooker with removed serial numbers being sold as new/catalogue returns....

Can you post your POC?

Your next job really will be putting your Witness Statement and Evidence/Exhibits together - so you can start doing that - some examples - Witness Statements

[kettlaness]

The court should order the Defendant to file his defence now, unless the court have just reset the claim back to DQ stage …. it depends what the application actually was ..... but you should have had a copy of the application and notice of the hearing ( or no hearing ) and you should receive an order stating the judgment has been set aside which will ( should ) have detail what's required going forward.

The defendant actually filed their defence on 1st May. I have received an order stating the judgment has been set aside - #24 (above), but there is no information as to what is required from me now.

I think though I'd ring the court Monday and ask.... if they've now accepted the DQs and continuing with the original defence the claim will be transferred to the Defendants local court ( most likely ) and will be in limbo for a little bit before they sort it out and send notice of hearing or directions.

I'll ring the court on Monday, to ascertain the state of play.

I can't understand why the decision should be transferred to the defendant's local court ? Why might this occur, when my claim is against a (Ltd) company ?

It 'narks' me, because I've submitted everything that I've been asked for, on time and to the court AND the defendant. The defendant has been able to 'get away' with not sending me anything and submitting (very) late information to the court. Now, it looks as if they are taking control of the proceedings and getting the hearing transferred to their own court.