Case struck out

[atticus]

I am sorry to read this - but see post #2.

[JBoss]

UPDATE:

I had the actual court hearing today at 11am for the issue with the double glazing...scheduled for 2 hours. The judge said that he'd spent an hour reading through all the evidence...

But by 11:20, the claimant still hadn't turned up so the judge ruled the case in our favour and dismissed the case. He also allowed us to claim costs of almost £200.

I asked him if the claimant could restart the case - he said that it would be very difficult given his previous failure to pay the fees on time and now, his failure to turn up.

I said that I would contact the claimant and tell him that I wouldn't pursue the costs if he dropped the claim in it's entirety - the judge agreed that that was a reasonable thing to do.


So, what are the chances that the claimant can restart the case?

I can see that he could argue he didn't receive the final hearing date letter as it was lost in the post (in the same way his court fees were lost in the post!) or that he's broken his leg and was unable to inform the court...

Thanks,
JBoss

[atticus]

I would say the chances of that are low, for the reasons given to you by your judge. But stuff happens. There may be a very good explanation for the no-show.

[JBoss]

Hi all,

So I received the judgment letter yesterday.

It says:


"Despite reading the file it turned out that there was no arrival by the claimant.

IT IS ORDERED THAT
1. The claimants claim is dismissed.

2. The claimant do pay costs of £190.50 of the defendant.
"

The letter is dated 10th April 2024.

Does anyone know the timescales within which the claimant could try to restart the case?

Similarly, does the word "dismissed" above remove any chance of the case being restarted?

Thanks,
JBoss

[R0b]

It is 21 days for an appeal, but the claimant could set aside the judgment under CPR 39.3. I've provided a link from a Court of Appeal case regarding a decision and the criteria for the court to consider when deciding if a judgment should be set aside a judgment following non-attendance.

https://cyklaw.com/wp-content/upload...ugust-2022.pdf

[JBoss]

Hi ROB,

That's interesting...the link says that simply being unaware of the hearing date is not sufficient (as a genuine reason for non-attendance).

Does this mean that if the claimant (again) claims the letter was lost in the post - then the judgement can't be set aside?

This seems to be the opposite of the incident earlier in my case, when the claimant claimed the court fees were lost in the post and the case was allowed to continue.

Thanks,
JBoss

[R0b]

Maybe, maybe not. All issues are fact specific and have to be taken into context so whilst there is precedent here in relation to CPR 39.3, it doesn't mean it will apply in all other cases falling outside CPR 39.3 which may have other criteria and different authorities that have allowed such a thing in a past decision.

The Court of Appeal decision is binding so the claimant will have to explain each of the requirements and the court will have to consider those responses. The general summary of this decision is that the bar is a high one if one party seeks to set aside a decision because they couldn't attend.

To answer your question, yes I would say that the claimant simply saying they were unaware of the hearing as their sole argument, is not enough. Also note that the article says even though the claimant has 21 days to submit an appeal, the expectation is that the claimant should be moving much quick when they want to rely on CPR 39.3 to set aside a judgment. One could assume that you have to get a shift on within a week or two of judgment if you want to be seen to be prompt.