Judgement in default, hearing to set aside

[ab6281978]

Hi,


I'm a claimant who won a judgement in default in an online money case because the defendant didn't file an acknowledgement of service/defence in time.

The defendants solicitor has put in a N244 to set the judgement aside and has asked the judge to force me to pay their legal fees (costing over £1000) to make this form because their argument is that I received an acknowledgement of service 2 days before the deadline for judgment.

They have attached evidence of an email to myself and wrote they posted a letter. I've check my emails and I have not received an email on this date and I have received no letter in the post (no recorded signature, nothing). I rang the court and they state they received an acknowledgement of service 1 day after the deadline, hence why I could apply for judgment.

There is a court hearing to discuss this. Is the defendants solicitor likely to succeed with me paying their fee? Please any advice would be appreciated?

Kind regards,

Amy

[R0b]

Hello

In short, I have no idea.

Under the Civil Procedure Rules (CPR 12.3) this is what it says about obtaining default judgment.

12.3

(1) The claimant may obtain judgment in default of an acknowledgment of service only if at the date on which judgment is entered—

(a)t he defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and

(b) the relevant time for doing so has expired.

(2) Judgment in default of defence (or any document intended to be a defence) may be obtained only—

(a) where an acknowledgement of service has been filed but, at the date on which judgment is entered, a defence has not been filed;

(b) in a counterclaim made under rule 20.4, where at the date on which judgment is entered a defence has not been filed,

and, in either case, the relevant time limit for doing so has expired.

What this basically means is that you cannot request default judgment unless on the date judgment is being entered, the defendant has failed to file an acknowledgment of service or a defence.

So the key question is whether you requested judgment before the acknowledgment of service was filed. If that answer is yes, then I think you have grounds to argue that the judgment was valid.

As for the letter, anyone can pretend to say they posted a letter to you acknowledging the claim and the same for email. However, the requirement under this rule is that they have to have filed an acknowledgment with the court, not the claimant. For the purposes of legal proceedings, a reference to 'filing' means you file with the court and any reference to 'serving' means you serve on the other side.

In terms of the email, are you absolutely certain that you never received it, even in your junk/spam folder? Not that I'm suggesting the solicitor/law firm is telling porkies but you can actually check the email headers of that attached email. It contains important information about when the email was sent and the time it was sent and to which email address.

If you want to understand a little more about email headers and how to view them using different email accounts, check this link: What are email headers? | Proton

You can use a simple email header to analyse the results and give you the true information about that email. Once you find the email header information using your preferred email provider, paste it into this link (Messageheader (googleapps.com) and click "Analyze the header above" and it will return the results. What you need to verify is, the date the email was created to confirm they actually sent it on the day they claimed, as well as the sent from email address and sent to email address.

[ab6281978]

Hi Rob,

Thank you for the reply! The email heading does look legit but I checked my spam and there is nothing there. I've got Gmail and the spam inbox says it deletes anything in there after 30 days, and it's over that now. If it landed in there it would be gone by now.

What do you suggest I do? Get a solictor for this hearing? Don't want to be stuck paying the defendant's solictor costs

[R0b]

So when exactly did you request judgment, was this after 4pm on day 14 when the deadline passed or was it day 15? and did you contact the court first to see if something was filed? It sounds like they also acknowledged the claim on day 15 being 1 day after the deadline so timings of who got there first is going to be important.

If it is deemed that they got there before you and put in the acknowledgment before you requested judgment then the court may find you to be at fault because judgment should not be requested if an acknowledgement has been filed first. If it's the other way around then I would argue they are at fault and you were perfectly within your rights to request judgment having missed the deadline to acknowledge the claim.

In reality, even if you pay a solicitor to defend you, there is no guarantee that you will be successful and if you lose then you will stuck with paying the other side costs as well as your own solicitor fees. Even if you are held to be liable to pay costs, you could still argue that £1000 seems pretty high for a set aside application and one would have to question what rates they are using and how much time they have spent.

30 minutes drafting application, 30 minutes hearing at the level of a paralegal or trainee solicitor would be about £130 an hour (slightly more in London) so about £250-£300. That also depends on whether they are using a barrister to represent as well which may add some cost but not a great amount.

I can't tell you what you should do as it's your dispute and you need to decide how you want to approach it. If it were me, I'd be getting on the phone to the court and asking them to work out exactly the date and time of when they received the acknowledgment and compare to the date and time of the request for judgment.

I would probably not oppose the set aside but I would argue that costs should not be awarded because you were rightly entitled to request judgment since the defendant failed to acknowledge the claim on time and the court confirmed it was received on day 15. As for the letter and email being sent to you, you never received any which is why you proceeded to request judgment. In reality, it's the defendant's fault for failing to acknowledge on time so there has to be some blame apportioned on their side.

Even if costs are awarded, I would still argue those costs are too high for the reasons above.

[ab6281978]

Hi Rob,

Thank you again, I requested judgment on the evening on the 14th day (got email confirmation from HM Courts).
Unfortunately I didn't contact the court beforehand to see if they received anything, I went on the online portal at that time and it said the defendant had not replied to them and it asked me if I would like to request for judgement. I clicked yes.

I called the court and they stated they received the acknowledgement of service on the 15th day, so I got there first. Do you think costs may still be awarded to them when the court can see I got there first?

The breakdown of the costs is mostly because the defendants high ranking solicitor is involved now, charging over £300 an hour!

[R0b]

Does it now show the time and date when you log in to MCOL of when the defendant has acknowledged the claim?

[ab6281978]

Hi Rob, no it just says this "County Court Judgment (CCJ) requested"

[R0b]

Hi Rob, no it just says this "County Court Judgment (CCJ) requested"

I think in that case, it's entirely up to you what you want to do.

Given that the court has stated the acknowledgment of service was received out of time and you requested judgment which was available to you on the evening of the 14th day and because you never saw/opened the email or letter allegedly sent to you, there's an argument that you were within your rights to request judgment - that's the consequences of the defendant leaving things until the very last minute, no excuses.

If you want to oppose the application even if it is to not oppose the set aside but object to costs, then you need to write a witness statement and provide your evidence to the court and the other side as soon as possible. Before you do that, you should probably write to the solicitors to inform them of your intentions to avoid further costs at the hearing and wasted time.

One thing I forgot to ask is what does it say on the application form, are you seeking to set aside on CPR 13.2 or 13.3 or both? If they are only seeking set aside on CPR 13.2 only, then you might have a greater chance of opposing it because unless there has been deemed a procedural error, the court must refuse to set it aside. That may change your stance on how you oppose or don't oppose the application.

[ab6281978]

Hi Rob,

Went to the hearing! The judgement was set aside as the judge stated the defendant did a lot of work for the claim already so they set it aside on their discretion.

The judge also stated I requested judgement which was in my right to do so and therefore no costs were awarded! So I'm not paying over 1k for the defendant's solictor mistake. Thank you so much for your help! Im glad I got advice from you and didnt bother paying loads for a solictor for a short hearing!

The case has basically restarted to zero and the judge during the hearing said we should try and settle out of court before if goes to court.

I'm interested in this but how do I even do that?? The defendant has a solictor that is scary with his fees. Do I just send him an email or wait for the court?