Set Aside Hearing - Claimant’s Evidence

[emotionboy]

Hi all:

I am the Claimant. I have a Default judgement. The Defendant has applied to set judgement aside, claiming (without evidence) they didn’t receive the documents because their office (school in this case) was closed at the time due to COVID and they didn’t discover the documents until several weeks later. I have evidence that shows the school was in fact open and COVID has nothing to do with it (at this point the Defendant does not know I have this evidence). The hearing is due in just over a week and despite the Defendant being responsible for the Electronic Bundle, they have not submitted this to me nor responded to my communications despite my efforts. I am planning on emailing the Court after the 7 day before hearing deadline to advise them that the Defendant has not sent the Electronic Bundle. Since the burden of proof of good reason to set aside judgement is on the Defendant: in my email to the Court (that I have to copy the Defendant into)- should I include the evidence that shows the school was open or wait until the hearing?

Thanks for any feedback.

[R0b]

Couple of questions:

1. What date did you issue the claim?
2. Did the court order the defendant to file a bundle - were they required to cooperate with you to agree this?
3. Have you filed a witness statement or some other statement objecting to the set aside?

[emotionboy]

Hi ROB:

Thanks for your reply. In answer to your questions:

- The Claim was issued back in July 2020. The Default Judgement was September 2020. The Defendant only applied to set judgement aside after first compliance stage of High Court Enforcement being involved in October 2020.
- Yes the Court ordered the Defendant to prepare the bundle and cooperate in this matter- they have ignored my communications.
- Last year we were expecting a notice of set aside hearing but for reasons unknown the Court accidentally sent a Costs & Case Management notification- thinking this was a generic form that didn’t apply, I missed the small print deadline that requested my Particulars of Claim be shortened, and so the case was struck out and neither of us were told this had happened. I eventually found out when I had some questions about why I had been sent a Costs & Case Management conference notification. In February 2021 a hearing was held for me to explain things and get the case reinstated which it was. No official witness statement has been provided that I am opposing the set aside, but I have made it clear via emails to the Defendant that I do not believe them and asked them questions regarding proof- as stated above, they have ignored my emails. I figured on waiting until a week before the upcoming set aside hearing (August 6), hoping they don’t submit the bundle and so at the hearing they’ve simply not provided any evidence to justify judgement being set aside.

Thoughts?

[R0b]

Thanks, the reason I ask about timelines is because there was a court case back in 2020 where a judgment against a local council was set aside because their offices were closed and only had skeleton staff on hand. I wonder if the school may refer to that case as a a 'good reason' to set aside.

However, if you have proof of them being open then really you should set that out in a witness statement, ideally 7 days in advance to allow the court to put it on file. The judge may not accept your evidence if you spring it on him/her and the defendant last minute, especially if the hearing is to be heard remotely, the judge will not have your evidence on the day. Seems curious that even if they were closed and had skeleton staff, surely someone must be checking post as bills will still need to be paid. I (personally) don't believe for one minute that they just stopped checking post for months when lockdown came about or maybe they were being selective about what they wanted to respond to, who knows.

If the defendant is not co-operating with you then that also should go into your witness statement under a separate heading and ask the court to take this into account when considering any costs order. You should raise this point at the beginning of the hearing when you have a chance because the court may not be aware. You might be asked whether you want to adjorn the hearing but I would press that their application should be struck out for non-compliance and failure to co-operate by ignoring your emails. If an adjournment does take place, you should ask for costs of attendance of the hearing and time spent preparing for it.

[emotionboy]

Hi ROB,

Yes I am very familiar with the case you referred to. I am hoping that emails I have obtained from the principal to the staff confirming she will see them on property for a school event at the time will suffice as evidence there were people at the school. I will check with my other legal advice (who coincidentally also suggested a witness statement) before drafting one and likely sending 7 days before (the day the bundle deadline expires). I have been hesitant about revealing that I have the principal emails before the hearing, but per your advice (and per my other legal advice too) it seems that that’s probably the best thing to do.

Apart from any other comments you may have, thank you for your suggestions.

[R0b]

The general ethos of legal proceedings in this country is a 'cards on the table' approach. That is, each party must set out their position and disclose any material documents or other evidence in support of that position. It allows both parties to understand the case against them and what they need to do to overcome any issues the other side has raised. It is dangerous to try and put evidence in front of a judge or the other side on the day of the hearing without any advance warning and more likely than not, that evidence will be rejected and cannot be relied upon.

Applications for setting aside default judgments are a bit of an anomaly because there's not much in the Civil Procedure Rules on how to oppose an application or when to file evidence and in what format. However, Practice Direction 23A, para. 9.4 and 9.6 says that (link here):

9.4 Where a respondent to an application wishes to rely on evidence which has not yet been served he should serve it as soon as possible and in any event in accordance with any directions the court may have given.
...
9.6 Evidence must be filed with the court as well as served on the parties. Exhibits should not be filed unless the court otherwise directs.

Note that para. 9.4 says you should serve evidence 'as soon as possible'. Don't believe there's a definition of 'evidence' but it is generally accepted within the legal sphere that it would mean a witness statement. Para. 9.6 does say exhibits should not be filed but I think in your case as a litigant in person, you might be best off doing that since they're not co-operating with the electronic bundle.

I'm not sure why you are hesitant on disclosing the emails, because they must already know about them, though possibly not that you do. The only advantage they would have is if you disclosed that evidence well in advance of a hearing they might be able to come up with arguments to counter your position but that's inevitable anyway.

Up to you on how you choose to proceed but I wouldn't put all your eggs in one basket relying on those emails. Chip away at their lack of evidence/non-compliance with the court directions. If I were in your shoes my arguments might go something like this (though I don't know the full story):

1. Ask the court to strike out the their application on the basis of non-compliance of a court order. Directions were clear that it was the Defendant's obligation to prepare, co-operate with the claimant and file an electronic bundle in advance of the hearing (mention time limit if one was given). Despite regular emails to the Defendant on the contents of that bundle, each email has been ignored and there has been zero communications from them. Should also point out to the court that the failure to comply has disrupted these proceedings in that you have had no opportunity to consider the defendant's position. An adjournment of the hearing would not be appropriate nor a proper use of the court's already limited resources on the basis that the non-compliance was entirely down to the defendant and their conduct or lack thereof.

2. If the hearing goes ahead, well you can rely on the emails but also try to argue that even if the school was closed - which appear contrary to the evidence you have in your possession, there surely must have been someone checking the post on a frequent basis. Even though due to Covid-19 there was a countrywide lockdown, it's difficult to believe that the school had never checked any post during that period of closure as there must have been bills and other important correspondence that the school must have had to deal with. Therefore on balance, they probably were aware of the claim but perhaps chose not to deal with it in a prompt manner. Nevertheless, that was their decision and the natural consequence is a default judgment.

3. Any other relevant points but these arguments need to be tied to the question that there is not a good reason why it should be set aside.

[efpom]

You might want to check if the school is a limited company on the companies house website, and if so, what it's registered address is.

[emotionboy]

Quick clarification ROB:

Set Aside Hearing is Friday, August 6. The Defendant has “not more than 10 nor less than 7 days” prior to hearing to file bundle. I can’t put in the witness statement that the Defendant did not file the bundle until the 7 day point, hence why I figured on not sending the witness statement until the week before on Friday, July 30 (note it has been agreed by the court that email is fine).

Is this right? July 30 would be the right day to send witness statement, right?

[emotionboy]

Disregard the last post. I phoned the Court and the told me which day to submit my witness statement by. Thanks.

[R0b]

Be careful, do not rely on advice from court staff. They are not legally trained and many people have been burned by relying on what the court staff have said. The court will be quick to point out that they're not liable if you suffer a loss as a result of what they have said.

The rules are governed by the Civil Procedure Rules and that's what you should conform to. If there's a conflict between what the court staff say and the CPR, you should follow the CPR.

If there is no order from the court that says you must file a witness statement and in what time frame, follow the CPR which is as soon as possible, though I mention 7 days as it is a commonly accepted time frame for applications like these.

[emotionboy]

Hi ROB,

Thanks for replying again.

The issue is conflicting notice information. A March 1 order after previous hearing states Defendant has to submit bundle 7-10 days before next August 6 hearing. A March 23 order after I submitted an Amended Particulars of Claim states Defendant has to submit bundle at least 48 hours before. The purpose of the Witness Statement is to highlight that the Defendant has not prepared the bundle within the time. Obviously the Defendant would have had to engage with me ages ago but has ignored communications- but I still have to allow the Defendant the full time. The Court phone line advised me to go with the 48 hours before deadline and that latest I could submit witness statement would be 3 days before. The phone line did say I could submit witness statement earlier but I’m still obliged to allow the Defendant the full time, aren’t I?

See my dilemma?