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

[jaguarsuk]

Who writes to the court like that ? Seriously ! "Any chance?" Lol.... Saying No is not unreasonable at all - you've been dealing with this for nearly a year now. If you say no the judge will likely decide one way or the other and the hearing should go ahead, you attend and their side gets heard on the papers ( which seems to solely be their limited defence as they haven't sent a witness statement or any evidences ) - or the judge will issue a new date and further directions - you would not be penalised.


re your concerns about a later set aside - this is the relevant cpr ...

Failure to attend the trial

39.3

(1) The court may proceed with a trial in the absence of a party but –

(a) if no party attends the trial, it may strike out^(GL) the whole of the proceedings;

(b) if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and

(c) if a defendant does not attend, it may strike out his defence or counterclaim (or both).

(2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.

(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside^(GL).

(4) An application under paragraph (2) or paragraph (3) must be supported by evidence.

(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant –

(a) acted promptly when he found out that the court had exercised its power to strike out^(GL) or to enter judgment or make an order against him;

(b) had a good reason for not attending the trial; and

(c) has a reasonable prospect of success at the trial.

Should it be the case that judgement is entered in absence and they apply pursuant to CPR 39.3(3) for set aside plus settled the need of 39.3(5)(a), the fact that they have served no witness statement or support exhibits would fail 39.3(5)(b) & (c).

Given they have set aside a default judgement, failed to file and serve as directed and failed to attend the hearing with no good reason the judge sitting in a set aside hearing is unlikely to have favourable attitude towards them.

If the hearing goes ahead and you get judgement ask that given their conduct in the claim plus that they have once set aside the judgement that the judge orders them to pay within 7 days. If they haven't paid in 7 days get on to enforce because this delaying tactic stinks to me of a company "phoenixing" and playing for time.

[kettlaness]

Hi All,

Many thanks for all the help, advice and guidance that you've provided over nearly a year.

I'm hoping that this issue is now coming to a close; yesterday, I telephoned the court and told them that I wanted the case to be heard in court this Friday - as arranged. They asked that I send them an email outlining my reasons why and I did this.

At the end of my email, I asked them to send me an email to confirm that they had received and read my reasons why I did not want the case to be deferred - I've not yet had a reply. They won't have time to send me a letter beforehand, so unless I hear otherwise, I assume the case will be heard.

The case should be heard in court tomorrow; I will not be happy if the judge opts for deferment - if this does occur, it will be on the basis of (alleged) 'illness' of someone who hasn't even given their name. I simply cannot see how the judge could reasonably opt for deferment, on the basis of 'illness' of an unspecified individual.

For some/many of you, this kind of issue will be a routine 'every day' occurrence; however, for someone such as myself who has never been in a court, it can seem like a very daunting prospect. I'm mentally prepared for the hearing and I have to say, the help that I've received from this forum has helped me significantly. What I've especially appreciated, is that guidance has been provided in a form that even I can understand - "Thank You" for all the help !.

At some stage on Friday, I'll let you know how matters have progressed.

[Amethyst]

Bless you, it's not a problem, you are doing the right thing, standing up for yourself - against the odds with the court being utterly rubbish to date... court will be fine .... I'd maybe give them a call first thing to see if the hearing is going ahead just to check..... the Judge should have read through the documents you have filed ( and the other side's defence ) and have a pretty good idea what questions he wants to ask you before you go in. They usually like you to give a bit of an outline when things start, but I think you'll be suprised how straightforward it will be. Remember to ask for your costs for the day ( usually limited to day off work ( which you can't claim as you already have that being half term lol ) parking / transport - so not a lot ) Take your Witness Statement and exhibits with you, and your original claim, to refer to if you need to.

So the fact that the cooker you purchased had a Salvage sticker and the serial numbers 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.

is entirely at odds with the sales blurb and being sold 'As New'...

'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.

[kettlaness]

I'd maybe give them a call first thing to see if the hearing is going ahead

Hi,

I've just had an email from the Court :


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

'Upon reading a letter from the Claimant and the Defendant

IT IS ORDERED THAT

1. The Defendant's request to adjourn the hearing on 22nd February 2019 is refused due to lack of evidence and information in support.

Dated 21 February 2019'

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

Yes, the 'it is ordered that' was in block capitals (and in 'Bold').

I wonder now, if the Defendant will make a miraculous recovery from 'illness' and appear at the Court, or whether the 'illness' will keep them away.


A big 'Thank you' to all those who kindly provided the information which enabled me to write a robust letter against the possible adjournment . . . I'll let you know what happens tomorrow . . .

[Amethyst]

Good stuff Good luck tomorrow and let us know how things go xxxx

[jaguarsuk]

Hi,

I've just had an email from the Court :


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

'Upon reading a letter from the Claimant and the Defendant

IT IS ORDERED THAT

1. The Defendant's request to adjourn the hearing on 22nd February 2019 is refused due to lack of evidence and information in support.

Dated 21 February 2019'

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

Yes, the 'it is ordered that' was in block capitals (and in 'Bold').

I wonder now, if the Defendant will make a miraculous recovery from 'illness' and appear at the Court, or whether the 'illness' will keep them away.


A big 'Thank you' to all those who kindly provided the information which enabled me to write a robust letter against the possible adjournment . . . I'll let you know what happens tomorrow . . .

Rightly so, good luck tomorrow.

[kettlaness]

Hi,

I went to court, sat around for nearly two hours and was then told that due to the system of block-booking hearings, mine would have to be heard at a later date, as there wasn't enough time left for today. A shame, as I've lost a day of holiday. We were told that 'next time, it will be definitely be heard as a priority case', but when 'next time' might be, was anyone's guess - weeks or months ?

The 'unwell' Defendant was there; curiously, I could see that they hadn't brought any paperwork with them. Next time around, I'll take a printout of proof of posting and the signature on the Track & Trace delivery - to show that my Witness Statement _& Exhibits were sent to them - in case they say that they never received them.

Thank you all, for your encouragement & support - I'll try my best to do you proud, when I do get to court.

[R0b]

I'm sure you'll be disappointed by this and it is not uncommon for the court to cancel hearings at short notice because others have overrun. If you feel aggrieved by the fact that you have a wasted holiday you could make a complaint to the court and air your grievance. You might as well milk the fact you had to arrange child care cover too which (if you are a single mother) can be difficult and possibly additional expense.

If you think its worth it, you want to follow this route, you should read Resolver's guide to making a complaint (click here). Last resort is to complain to your MP who can refer the matter to The Parliamentary & Health Service Ombudsman. There's a couple of decisions made by the Ombudsman on short notice cancellations and overrun cases (here and here).

Interesting that the representative managed to find time to turn up, couldn't have been that difficult eh? It might be wise to do that, just in case the Defendant argues non-receipt.

If I were you, I would be chasing the court on a weekly basis and press them to put a date in because you were told you would be prioritised as the hearing had been cancelled - they should eventually give you one.

[jaguarsuk]

If you take the day off work unpaid you are able to claim that day as witness expenses should you win when it comes to discussing costs the same way you can claim parking, travel etc.

However, what you need to be mindful of is whether this company is going to pay a judgement, their disregard for these rules would have me keeping a close eye on companies house to check they don't apply to dissolve.

They're clearly playing for time for something, the question is what?

[kettlaness]

Hi All,

The matter was heard today in court . . . and I won !

The judge said that I was a 'credible witness'

The only point that disappointed me, was when we came to the matter of compensation. In a nutshell, I was claiming for the cost of the duff cooker that I purchased (for £1,055); the judge calculated the compensation as being £1,055 minus the 'value' of the 'duff' (salvage) cooker - which we still own. He reckoned that the salvage cooker is worth £500 - about £450 more than my own valuation. So my compensation is to be £555 (1,055-500) plus expenses, which works out at over £750 - to be paid in 14 days.

Now here's an interesting point, though I don't know if it is important or not - the judge specifically asked the defendant if their company was 'Limited' and the defendant said "No". [All this was during the summing up - which was recorded]

The thing is though, it IS a limited company - registered with Companies House as a Limited company - this fact can easily be verified, with a simple search on the internet.. that said, there's no mention that the company is 'Limited' or 'Ltd' on any of their company documentation, but it is limited.

Why would the defendant lie to the judge in this way and does it matter ? Should the court be informed ?

Thank you all, for taking the time to make so many helpful replies; you've been a terrific help.

Of course, I'm not celebrating yet - I'll have to see if I get paid first !

[kettlaness]

. . . . . . . this delaying tactic stinks to me of a company "phoenixing" and playing for time.

I'm beginning to wonder if you might be right about this ^^^, with regard to the "phoenixing" aspect.

During the hearing, the judge specifically asked if the company was 'Limited' and they said "No". However, Companies House states that the company is 'Private limited with Share Capital'. I've checked that the company name is exactly the same as that of the defendant, as is the address. Indeed, those in court, are listed as Directors of the company.

Why would they lie to the judge - it was even recorded. What, if any, course of action should I take ? They've been told to pay within 14 days; is it worth even letting the judge know that they lied to him - would he even be interested, now that the case has been heard ?

it might be, that I'm worrying unduly and that I'll be paid promptly, but I can't help but feel suspicious about this.

[kettlaness]

However, what you need to be mindful of is whether this company is going to pay a judgement, their disregard for these rules would have me keeping a close eye on companies house to check they don't apply to dissolve.

This is a very good point - I've checked and it isn't a dissolved company . . . Which isn't to say that it won't be.

[kettlaness]

There is an example for the Witness Statement here https://legalbeagles.info/forums/for...ness-statement

And the relevant practice direction here - https://www.justice.gov.uk/courts/pr...part32#witness

There should be detail on your hearing letter too, where it tells you when to exchange witness statements and documents by. Normally it's 14 days before the hearing.

The Claimant will need to pay a hearing fee before exchange of witness statements too.

Basically the Witness Statement introduces your documents which are attached as Exhibits.

A cover letter only needs to see 'Ref: xxxxxxxxx v Kettlaness
Please find enclosed by way of service my Witness Statement and Exhibits for the Claim XXXXX to be heard on xxxxx 2018 at xxxxxxxxxxxxx County Court"

Copy to court and to the Claimant.


No preference on staples/binding - but easy to refer to and find documents - so top right of Exhibit pages for Exhibit references is normally a good idea.

I have to state, that all the above information was very helpful to me; not just in preparing the material, but for providing a kind of mental framework against which I could compose my thoughts during the hearing. For the experts, no doubt this is 'routine' stuff, but for folk such as myself, it was extremely useful. I should mention, that the defendant didn't submit anything to the court.

[Amethyst]

Oh congratulations - I'm glad it all went well in the end and you won the farting about of the other side ( and the court !) and thinking the cpr's (and consumer legislation) don't apply to them simply delayed the inevitable for them so well done for sticking with it. It's a shame the cooker was overvalued - I cant remember if you checked what the salvage values were and gave those to the court ? You'd wanted them to take the cooker back I think so think we in future need to remember to have a back up plan ( valuations) for if the court doesn't order that.

did you get to ask for your costs ? Or is that what you mean by expenses ?(£750??)

[Amethyst]

The limited company bit is weird... I can't see a reason to pretend not to be a ltd company - is the company name the same as the individuals name ? If they do pay within the month the judgment wouldn't be registered against them but if they don't I suppose they'd prefer a personal ccj on their credit file rather than a ccj against the business credit rating. They might just think If the order doesn't have ltd on it won't apply .... can you pm me the names / address of the defendant & company so I can have a nosey as if you don't get paid you'll be back at enforcement again and could do without any more faffing about.

ive changed your title for you