How to respond on an N244... Set aside versus strike out and summary judgement

[HOYT235]

Hello,

I received a summary judgement that I believe is in error due to it being a libel case.

I have composed my witness statement but am confused as to when it is appropriate to ask to set aside (CPR13.3), versus strike-out (CPR 3.4) and summary judgement (CPR24).

I want to deal with this as expediently as possible, but also don't want to risk having to pay because I have put in an incorrect order.


Questions:
- Do I need to first request to set aside and then, if it is granted, request for summary judgement in my favour?
- If I request to strike it out, is it necessary to request for summary judgement or is it a case of requesting one versus the other?

[R0b]

Summary judgment and default judgment are two different things - I assume you are referring to the latter.

If indeed you have received a default judgment, in your application form you would state that you wish to set aside the default judgment and request that the court give summary judgment or alternatively strike out the claim. They both have different criteria to meet so it's not a case of one versus the other.

Reality is that if a libel claim has been made in the County Court then it can'tbe heard without the consent of the parties otherwise an application would need to be issued in the High Court - the appropriate court fees are less in the County Court than in the high Court which is another reason why the court should give summary judgment as there is no prospect of success nor is there any other compelling reason why the claim should proceed (since the court does not have jurisdiction to hear such claims without the consent of both parties).

You could invite the claimant to consent to setting aside the default judgment, dismiss the claim and pay your costs of the application which would be £100 for a consent order. Failing that make the application yourself.

[HOYT235]

It is probably too late to be asking this but, I read the above as I can put all three requests on the same form not two different N244s. Was that correct? I emailed it in this afternoon with an order that basically states I would like to set aside under 13.3 and strike out on under CPR 3.4(2) (a), (b) or (c) and/or grant summary judgement under CPR 24.

I am only wondering about it now because I was previously told if I had a writ I would have to send two forms one to stay the writ and one to set aside... (but it turned out there was no writ so that was not necessary)

[R0b]

It is not uncommon for one to make an application to set aside and then also request summary judgment/strike out. I am not aware of any rule or stipulation that says one request per each application - that would be contrary to the overriding objective which its aims are, amongst other things, to save expense, deal with claims justly and at a proportionate cost etc.

Same with the writ, you simply state that (1) seeking set aside and (2) all enforcement action be stayed pending the outcome of the hearing to set aside the default judgment.