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Set Aside Dismissal

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  • Set Aside Dismissal

    I failed to attend the small claim hearing due to ongoing illness i was late to notify the judge on the day of the hearing i managed to get in touch shortly before the case was due to be heard. so the judge ruled no medical evidence was presented so default
    the nature of my illness is as such it is liable to flare up.
    i then tried to appeal and it was moved to a set aside hearing.
    which was dismissed due to the doctors letter detailing my illness and symptoms in general and not specific to the date Of The hearing.
    i am at my wits end as it is close to 2k the claim and without doubt i do not owe the amount and have evidence to back it but yet i have to pay someone this amount seems mad.
    my other downfall is one i cant afford legal help and my illness is still awaiting full diagnosis but i am generally very unwell and have very little stamina plus the medication i am on knocks my cognitive ability big time so i struggle with matters like this.

    Any help suggestions would be greatly appreciated

    can i still fight it ? or do i conceed defeat although i know i dont owe the money and just vary the order to manageable payments.
    Tags: None

  • #2
    Hello

    You can appeal a set aside hearing, but you only have 21 days to do so and will cost you again unless you qualify for a fee remission.

    The problem is a generic letter from your doctor doesn't really offer any help to the court so I would suspect that's why your set aside was dismissed. There is some useful guidance from a High Court case where there is poor health. In Levy v Ellis-Carr [2012] EWHC, the judge said this:

    33. [Judges] are daily faced with cases coming on for hearing in which one party either writes to the court asking for an adjournment and then (without waiting for a reply) does not attend the hearing, or writes to the court simply to state that they will not be attending. Not infrequently “medical” grounds are advanced, often connected with the stress of litigation. Parties who think that they thereby compel the Court not to proceed with the hearing or that their non-attendance somehow strengthens the application for an adjournment are deeply mistaken.

    36. Can the Appellant demonstrate on this appeal that he had good reason not to attend the hearing (as he would have to do under CPR 39.5 )? In my judgment he cannot. The Appellant was evidently able to think about the case on [date] (because he went to a doctor and asked for a letter that he could use in the case, plainly to be deployed in the event that an adjournment was not granted): if he could do that then he could come to Court, as his wife did. He has made no application to adduce in evidence that letter (and so has not placed before the court any of the factual material necessary to demonstrate that a medical report could not with reasonable diligence have been obtained before the hearing before the [Judge]). But I will consider that additional evidence. In my judgment it falls far short of the medical evidence required to demonstrate that the party is unable to attend a hearing and participate in the trial. Such evidence


    should identify the medical attendant and give details of his familiarity with the party’s medical condition (detailing all recent consultations),

    should identify with particularity what the patient’s medical condition is and the features of that condition which (in the medical attendant’s opinion) prevent participation in the trial process,

    should provide a reasoned prognosis and

    should give the court some confidence that what is being expressed is an independent opinion after a proper examination.
    The above was approved by the Court of Appeal in Forrester Ketley v Brent [2012] EWCA where it was said that:

    An adjournment is not simply there for the asking. While the Court must recognise that litigants in person are not as used to the stresses of appearing in Court as professional advocates, nevertheless something more than stress occasioned by the litigation will be needed to support an application for an adjournment. In cases where the applicant complains of stress-related illness, an adjournment is unlikely to serve any useful purposes because the stress will simply recur on an adjourned hearing
    Here's a question for you, if your illness is ongoing and likely to flare up -perhaps at any time - are you expecting the court to adjourn your case on each occasion until there is a day where it doesn't flare up?

    On a final point, I would refer you to a more recent High Court case, Maitland-Hudson v SRA [2019] EWHC where the judge had this to say:

    a ‘fair’ hearing does not necessarily mean that there must be an opportunity to be heard orally.
    Check out some useful guides below

    A guide to voluntary termination
    Seting aside a CCJ
    Completing an N180 Form (Courtesy of Jaguarsuk)

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    LEGAL DISCLAIMER
    Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Some of the content I post may include example wording, letters, or other similar responses but they are intended purely for informational and educational purposes. Using some or all of the content I post may fail to meet your needs that is specific to your situation. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice and you can do this through the Law Society's Find a Solicitor database, by contacting your local Citizen's Advice Bureau or legal advice centres such as LawWorks. You may also be able to seek legal advice from your local university who may run a free (but limited) legal advice clinic to members of the public.

    Comment


    • #3
      Thanks for the reply Rob,

      its all a little complex which makes it difficult to outlay to a judge
      as yet i dont have a firm diagnosis and with the current situation all treatment and appointments are on hold
      once a diagnosis is met and treatment begins i will be either more able to attend or medicate adequately
      there are a lot of red flags in regard to my health currently.

      i dont have much experience with legal matters but seems like i needed to cover all angles and should have presented a fuller more detailed statement

      cheers again (",)

      Comment


      • #4
        Your only option now is to appeal, and plead for sympathy in this case whilst addressing the outstanding points.

        If your appeal is successful, you might want to suggest you be allowed to file written submissions in lieu of attending court. Not something I would normally recommend but you are confident you have the evidence to show you are not liable, that will at least allow you to put forward your arguments without risking further cost and expense or the wrath of the court for not attending.

        The key point is that the court wants to know how your ill-health has or will affect you participating in the trial and/or attending.
        Check out some useful guides below

        A guide to voluntary termination
        Seting aside a CCJ
        Completing an N180 Form (Courtesy of Jaguarsuk)

        - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
        LEGAL DISCLAIMER
        Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Some of the content I post may include example wording, letters, or other similar responses but they are intended purely for informational and educational purposes. Using some or all of the content I post may fail to meet your needs that is specific to your situation. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice and you can do this through the Law Society's Find a Solicitor database, by contacting your local Citizen's Advice Bureau or legal advice centres such as LawWorks. You may also be able to seek legal advice from your local university who may run a free (but limited) legal advice clinic to members of the public.

        Comment

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