**WON** General Form of Judgement or Order

[efpom]

You have been fobbed of by the police officer you spoke with. That often happens. Therefore, you lay your complaint, in writing, directly to the Chief Constable. You do not write to the court about this.

[LittleElf]

efpom A further Court order is coming out to me by the Court. Apparently the Defendant has sent in a statement after the Judgement has been received (which I have not received) and the Judge has awarded them 14 days to counter claim. They want to challenge my evidence or something. She was rather vague on the phone at Court but has said the Judge is giving them a further 14 days.

I don’t understand and she didn’t explain it properly.

[Guest]

So see how much the High Court Sheriffs will be and dependant on the amount you are claiming is it a worthwhile bet to get in first? It could be forever in the hands of the legals.

Cost is £66.

[efpom]

Suggest you await the documents form the court and defendant.
Having said that, it is a certainty that a judgment once perfected i.e
sealed cannot be withdrawn.

See SC decision below:

19. Thus there is jurisdiction to change one’s mind up until the order is drawn
up and perfected. Under the Civil Procedure Rules (rule 40.2(2)(b)), an order is
now perfected by being sealed by the court. There is no jurisdiction to change
one’s mind thereafter unless the court has an express power to vary its own
previous order. The proper route of challenge is by appeal.

https://www.supremecourt.uk/cases/do...3-judgment.pdf

[LittleElf]

efpom I will upload the document from Court when I receive it but the Court clerk told me that the Judge has said they have 14 days from yesterday to file a set aside application. Im just confused now.

[efpom]

I suspect that an extension of time for permission to file an APPEAL may have been given - it will be interesting, at least for me, if that turns out to be right.

Has the defendant ever filed a defence? If it has, I suggest you post that up.

As things stand, you have a live judgment, which becomes enforceable on 8th Feb. An application for permission to appeal does not affect your right to proceed with enforcement.

[LittleElf]

efpom. Okay so today I have received from the Defendants a copy of an application notice n244 for an application to set judgement aside and a stay against enforcement pending the outcome of the application.

This is the second time.

I was on the call when the Judge had tried to call them and they are basically stating that they didn’t receive the call and an exhibit of their phone log for that day.

They did file a Defence to me but the Judge didn’t have a copy. The email address they sent it to is slightly different than the one shown on the Court order were we had to send documents.

They also state that the they have been severely prejudiced by the court’s administrative mistakes.

[efpom]

Post up the defence - post up the N244 - post up all attachments to the N244

[efpom]

I recognise that this has been a stressful experience for you as a litigant in person. Legal proceedings are stressful even for well experienced lawyers.

However, you can take comfort from the fact that you have been very successful to date.

The current application for a set aside has cost the defendant £255. The previous one also cost him £255.

I do not expect, that as a litigant in person you will necessarily follow everything I set out below. but it may help other on this board, faced with a similar stat of affairs

There is a narrow gateway which permits a set aside application to be made a second time. see e.g. https://www.bailii.org/ew/cases/EWHC/QB/2021/198.html

CPR 39.3(3) provides that a trial may proceed in the absence of a party, but, where a court goes on to give judgment or make an order against that party, the party who failed to attend may apply for the judgment or order to be set aside. An application must be supported by evidence. CPR 39.3(5) provides that a court may grant the application only if it finds that all of three conditions are satisfied: (X) the applicant acted promptly when they found out about the judgment or order made in their absence, (Y) the applicant had a good reason for not attending the trial and (Z) the applicant has a reasonable prospect of success at trial.

If you look at the final judgment, you will see that the order recites that the Defendant:
a) the 1st a) Breached a court order by failing to file a witness statement with the court
b) Failed to provide a telephone number - which is also a breach of a court order.

and the court made a finding - the second a), that the Defendant has failed to comply with the court's directions.

He made his current N244 application promptly. - goes to (X) above

That he did provide a telephone number but that the court did not telephone him on that number, which prevented him from taking part in the trial.which goes to (B) above.

He then has to prove (Z).

But his first problem there is the court recital at b) above. He would have to prove that he did, in fact, file his witness statement with the court. Sending is not the same as filing i.e. receiving. A prudent litigator ALWAYS checks with the court office that any filing sent to it has been received by it, before the time for filing expires, and ALWAYS gets some form of 'receipt' of filing. So, here. unless he can produce some type of receipt from the court office that his filing has been received, his application, in my view, is bound to fail.

However, even if he could produce a receipt for filing, he still has to prove that he would have a reasonable prospect of success at trial.

[LittleElf]

efpom The court has told me to put forward my points today so the Judge can see it before he decides on the set aside application.

Here is the application. They state it was the Courts administration error when in fact it wasn’t, the Defendants have used an old email address for the court when it clearly states on the order were to send the documents.

I confirmed with the court whether the email address they used is still live and they confirmed it is an old one and was not listed on the order.

The exhibits are just phone logs of the calls they made to the court and also the witness statement email which confirms the wrong email address.

[efpom]

I suggest the following to the court, copying the applicant

---------
This is a second application to set aside.
The court may derive assistance from Vafa v Patel [2021] EWHC 198 (QB) (04 February 2021), particularly 9 of the judgment which sets out the 3 conditions which must be satisfied. https://www.bailii.org/ew/cases/EWHC/QB/2021/198.html

The order to which the set aside application is being made reisuued on 25^th January 2021 following correction under the ‘slip rule’. The order recites that the Defendant:
a) [the 1st a)] Breached a court order by failing to file a witness statement with the court
b) Failed to provide a telephone number - which is also a breach of a court order.

and the court made a finding – [the second a)], that the Defendant has failed to comply with the court's directions.

I do not contest that the applicant made his current N244 application to set aside promptly after his receipt of the order of 25^th January 2021.

The applicant says that he did provide a telephone number but that the court did not telephone him on that number, which prevented him from taking part in the trial.
That is a matter of evidence. Either he did supply that number or he did not. It is for HMCTS to assist you, as the judge hearing the application, on that. It is, in my view, nothing to the point that he says that he made a number of telephone calls to the court office, on the day of the hearing.

Turning to the order of 25^th January 2021at recital b), the applicant would have to prove that he did, in fact, file his witness statement with the court. That again, is a matter of evidence, and again, it is for HMCTS to assist the applicant and you, as the judge hearing the application, on that. I would simply state that sending is not the same as filing i.e. receiving. So, absent any evidence from HMCTS that he did, in fact, file a witness statement but that nevertheless he can prove that he has some type of receipt from the court office that his filing has been received, his application, in my view, is bound to fail. He has led no evidence that such a receipt exists.

However, even if he could produce a receipt for filing, he still has to prove that he would have a reasonable prospect of success at trial. I respectfully draw the court’s attention to the facts of the claim and the consumer legislation that underpins the claim. In my view, that evidence can only result in a finding that the applicant would not have a reasonable prospect of defending the claim at trial

[efpom]

Delete "but that nevertheless"
Insert "unless"

[LittleElf]

efpom Thank you. I have done this. And I also have to file this to the Defendants aswell do I?

[LittleElf]

efpom As their application has gone in (although I am sure its gone to the old email address again) I will check with the Court, shall I still carry on with my enforcement on Monday?

[efpom]

Copy Defendant to the email that is on the court record. If necessary ask the court office what that court record email is. The important thing is that you have sent it to the court. Full marks!

Hold off enforcement until you see how this set aside pans out. It looks like a judge is keen to make a swift decision.