Hi there - professional negligence claim

[des8]

Yep, but be ready for it to be filed late and accepted by court!

[jonnyd85]

des8*- it's like you've done this before, are deeply cynical or both! ;-) well, if it doesn't get served on me, I'll try and attend to point that out and get a copy!

[des8]

too often and too old !

[jonnyd85]

Spoke to the court - it hasn't been filed there either, but it was emphasised to me that it was a matter for the judge at the hearing if one wasn't received. She also pointed out that the defendant may not understand the "file and serve" language.

Bit of a quandry, which I know if mine to resolve: if he doesn't bother turning up/filing, then the judgement stands, and I go back to trying to get it paid. But this seems to involve me rocking up next week to the hearing (two hour round trip by car), and he'll probably just bring it with him and then get the judgement set aside anyway. My inclination is to not go, but as was suggested further up, write a letter to the court explaining why. But in a "have my cake and eat it way", if he doesn't rock up next week I don't want to have consented to the set aside when I don't have to, if that makes sense?

Will "I don't object the it being set aside provided a draft defense has been presented, and provided it is served upon me" be treated the same as "I consent to the set aside under all circumstances"?

Might be that I just have to go there if I want this nuance to be accounted for. Or I could actually try to engage with the defendant again to see if I can reach a mutual consent position. Or I could go mad and consent and let the court process take its course.

What would anyone else do? (hoping to not always bug des8 with these!)

[jonnyd85]

des8 - I've just noticed CPR29. Does that mean I now have to attend the hearing, as I can't give seven days notice?

[jonnyd85]

I meant 27.9, not 29 above

[des8]

CPR29 only applies to claims allocated to the multi track


The judge shouldn't allow a set aside unless there is at least a chance of a successful defence.
If no defence has been filed, how can the judge decide.
If a defence has been filed but not served he could decide either way.
as the order suggests you try and reach a settlement out of court, you could write to the defendant pointing out he has failed to serve his defence as required, but would he care to respond to mediation.
Just another "I'm being ultra reasonable, Sir" moment, to include in your letter nearer the hearing date.
Have you yet been given a hearing date for the set aside? next week?

[jonnyd85]

des8 yes, it is this coming Thursday. I got my reference wrong. I meant CPR 27.9. According to the court, he hadn't filed as of Wednesday just gone. I guess he could rock up on the day with one. Might ring early next week to see if he has filed one late

[des8]

CPR 27 applies to claims
This is not a claim but a hearing for set aside (CPR 13 applies)

[jonnyd85]

Ok, so I could still write to the court, say I haven't received anything, but I'm happy for them to make a determination on their own

[des8]

As you are so near the hearing date send the letter more or less as your post 102, but not " but I'm happy for them to make a determination on their own". The judge will anyway, and that sounds a tad condescending.
Send by email, and ask for it to be put before the judge before the hearing on 19th December

[jonnyd85]

Yes I didnt really mean I'd put that last bit in. Okay, if that'll be alright, I'll send something across and save myself a trip to Wales. Do I need to send it to the defendant too?

[des8]

You don't need to send to defendant, but it always looks better if you keep them fully informed.

and why save yourself a trip to Wales? Don't confine yourself to court visits.
We might talk with double Ls and no vowels, but otherwise quite reasonable and generally welcoming!

[jonnyd85]

The agony on this is I thought I'd combine it with a trip to Cardiff to wander around *without* a three year old in tow. I am driving to my in-laws in mid-Powys this weekend though.

Still not 100% decided what to do to be honest. Will try and make up my mind by morning!

[jonnyd85]

Just an update- spoke to the court again and no change (I.e. no defence filed) but they were quite insistent that I would be expected to attend. So I'll attend but also emailed across a letter a bit more detailed than post #102 in case the Severn bridge closes or something. In it, I also asked for my costs for turning up to be considered given that if he'd followed the court order, I might have avoided it! That in addition to briefly outlining where we are with respect to the hearing and the lack of filing etc.

It might not do much good but it made me feel better

An afternoon in Cardiff beckons!