Set Aside

[zas90]

Nothing back yet, is there a specific form that will need filling out? I've emailed them on 2 occasions and phoned the court also, still haven't received anything, I find it remarkably strange how a party can disregard a District Judges orders and nothing is done, irrespective of whether I need to chase it up or not, it should be down to the court to enforce compliance with orders, otherwise what's the point in giving deadlines.

I bet if I paid my hearing fee a day late I'd have my claim struck out immediately with hundreds in costs against me, the system isn't really fit for purpose in my opinion.

Sorry for the rant, just incredibly frustrated.

[jaguarsuk]

I've emailed the court asking that summary judgment be entered in my favour attaching a copy of the order. I'll keep you updated.

They might tell you to file and application or more likely issue an unless order, just to give advance warning.

[zas90]

I've emailed the court asking that summary judgment be entered in my favour attaching a copy of the order. I'll keep you updated.

[jaguarsuk]

I can confirm nothing has been received by the court, so now it's just a case of waiting to see what happens next. I'm guessing the defendants case should be struck out, leading to a default judgment. I cannot grasp why he went through the set aside process, only to fail to serve a defence and pay my costs as per the judges order.*

No, you need to apply for summary judgement, there's nothing to strike out as he's not filed anything.

[zas90]

I can confirm nothing has been received by the court, so now it's just a case of waiting to see what happens next. I'm guessing the defendants case should be struck out, leading to a default judgment. I cannot grasp why he went through the set aside process, only to fail to serve a defence and pay my costs as per the judges order.*

[zas90]

Awesome! I'll give the court a call in the morning. I'll be shocked if he's filed it with the court and not me, although those tactics wouldn't surpise me at all. I'll drop an update tomorrow.

Thanks!

[jaguarsuk]

Call the court and see if they have received them, he may have filed and they are behind on the paper work, but he just didn't bother serving you.

If not you will need to apply to enter summary judgement on the claim. If I were you I'd ask the court to order the £50 costs unpaid from that order as part of the summary judgement on the claim, that way when you apply for a Warrant or Writ (depending on the value of the judgement) of Control you only have to apply for one to get all you're owed. I'd also ask that they order the judgement paid within 14 days as opposed to forthwith given the time the defendant has had already.

He won't be getting a second set aside he's had his chance and now it's pay up or enforcement is coming.

[zas90]

A development.

The court made the following order on the 19th November 2019;

"2. The defendant do file and serve a fully particularised defence setting out in clear terms the basis for denying the claim by 4pm on 3 December 2019.

3. Costs assessed at £50, payable by Defendant by 3 December 2019. Defendant shall pay the costs of today in any event."

The defendant has failed to do either of these orders. I've sent an email to the court stating I haven't received them, is there anything else I should do?*
*

[zas90]

Thank you for your response. I may well be disadvantaged by not attending, however I really don't have any available time over December or January to attend a hearing, especially when its 50 miles of driving, and I'm not guaranteed to have the case heard, not to mention the fact the court has already given the defendant concessions, I do feel I can put forward a strong case on paper, especially now I have the defendants defence, the 3 points he makes I can deconstruct and prove to be wrong and provide evidence on the contrary, whereas before I was somewhat unprepared for what he was going to put forward, and was unable to respond to the new points he made 4 days before the hearing.

I'll send my papers into the court nice and early, with a letter stating my non attendance in accordance with CPR 27.9(1)(a)(b). If the claim goes against me and costs are awarded, then I won't be paying them as I'm probably going to have no other option other than to file bankruptcy in the new year due to massive debts I've accumulated (previous gambling addiction that has been rectified fortunately).

Would I be okay serving;

- Witness Statement
- Skeleton Argument
- Evidence Exhibits (there's around 25 pages of evidence).

Do I need anything else? I'm trying not to waffle within my witness statement, how many pages should I try and keep to?

I appreciate your time.

[R0b]

Whatever your opinion of the system, the courts do have discretion to set aside judgment if there is a reasonable prospect of successfully defending the claim. Setting aside default judgment is not a tally based system where the winner is the one with the most marks.

if you are not happy with the decision then you have the opportunity to appeal the decision. If, as you said, the decision was already made before entering the room then I would say that would be good grounds for an appeal as you should be given the opportunity to be heard and put your case across. Of course even if an appeal was upheld, there is always a possibility that the appeal judge could have come to the same conclusion anyway.

There is some evidence and statistics floating around that those who don't attend court are disadvantaged and against those who do attend court, they have more success because you can put arguments forward, refer to case law, answer questions from the judge etc. Unless your writing skills are top notch and you are able to address your points in a succinct fashion, you may want to reconsider not attending.

You are not the first and certainly won't be the last who complains about the result of their hearings in County Courts. Yes, its disheartening and it really is a lottery as to who you might get but the majority of those who lose out also don't exercise their right to appeal.

[zas90]

I certainly won't be attending the next hearing at the kangaroo court, so I'll be sending a CPR 27.9 letter stating I'm happy for the case to be heard in my absence alongside my WS. I'll paste a copy of my redacted WS here when I've completed it, which should hopefully be within the next week, trying to cover everything without waffling or taking up too many pages.

Genuinely disgusted with the court and its willingness to grant parties extra concessions.

[jaguarsuk]

Sadly this isn't surprising. Post a redacted copy of the witness statement and we'll assist.

[zas90]

Unfortunately set aside was granted. Back to square one.

What I've learnt today is that;

- Judges don't care about CPR compliance or the overriding objective.

- Judges don't care about parties missing deadlines due to poor time keeping.

- Judges don't care about unsigned statement of truths.

- Judges don't care about parties waiting a month before making a set aside application.

The judge did award my nominal costs (£50 payable), and made the defendant bear his costs, she said they have a "reasonable prospect of success", but reiterated this doesn't mean she thinks they'll be successful.

She said we will be drafted in for a hearing in around 4 weeks, an order will come in the post and it will be for us to exchange witness statements 14 days in advance of the hearing.

I'm frustrated that the legal system is in this state, and I have no idea why the CPR exists if parties can pick or choose what parts they comply with.

My thoughts?

What a farce, not only was our hearing nearly an hour late, neither party had no opportunity to talk, decision was made essentially before we walked into the hearing. Back to the drawing board, I'm drafting a new witness statement, any proof reading would be more than welcome.

[jaguarsuk]

Hello,

A last minute Witness Statement arrived here, as woeful as I expected. It essentially in 1 page blames the non serving of the defence as a communication mix up between the solicitor and his client (hardly a compelling reason to allow a set aside), it also admits he waited a month after knowing a CCJ was entered before making the set aside application, so it seems to go against CPR 13 as it wasn't served without undue delay.

His defence is 1 page, hardly would take 33 days needed to type this and serve it. The solicitor includes a defence statement from the defendant that is not signed by any parties, is this admissible?

No, it does not comply with CPR part 22 and make the part 13 point.

He accuses me of being a motor trader (and has attached evidence by way of previous directorships of 2 companies I set up but 2 years ago but have never traded and have only served dormant accounts, one was voluntarily wound up, the other is in the process of being dissolved), I'm a personal trainer, I have evidence that the car was paid for via a personal banking account transfer, the V5 was registered to me personally using the green slip, an insurance Certificate allowing myself and my partner to drive it for social, domestic and pleasure, and prohibits trade use, I have evidence of the companies being dormant and never traded.

Take all this evidence with you.

Any tips for the hearing on Tuesday? There's 5 hearings listed on the day, mine is set for 1 hour with a District Judge. If I wish to introduce more evidence that collaborates a point i've made within my witness statement, can I ask the judge at the start of the hearing whether I can include this as I was ambushed 4 days prior to the hearing by a witness statement that has points mentioned on it that weren't included within the set aside application.

Many thanks as always!

Yes you can, but it is better to send a supplementary witness statement to the court and defendant today to that effect. It allows them copies and time to review it in advance, so they can't claim to be prejudiced by only seeing it in the hearing. Take copies to the hearing as well and hand them another copy when they arrive for good measure.

[zas90]

Hello,

A last minute Witness Statement arrived here, as woeful as I expected. It essentially in 1 page blames the non serving of the defence as a communication mix up between the solicitor and his client (hardly a compelling reason to allow a set aside), it also admits he waited a month after knowing a CCJ was entered before making the set aside application, so it seems to go against CPR 13 as it wasn't served without undue delay.

His defence is 1 page, hardly would take 33 days needed to type this and serve it. The solicitor includes a defence statement from the defendant that is not signed by any parties, is this admissible?

He accuses me of being a motor trader (and has attached evidence by way of previous directorships of 2 companies I set up but 2 years ago but have never traded and have only served dormant accounts, one was voluntarily wound up, the other is in the process of being dissolved), I'm a personal trainer, I have evidence that the car was paid for via a personal banking account transfer, the V5 was registered to me personally using the green slip, an insurance Certificate allowing myself and my partner to drive it for social, domestic and pleasure, and prohibits trade use, I have evidence of the companies being dormant and never traded.

Any tips for the hearing on Tuesday? There's 5 hearings listed on the day, mine is set for 1 hour with a District Judge. If I wish to introduce more evidence that collaborates a point i've made within my witness statement, can I ask the judge at the start of the hearing whether I can include this as I was ambushed 4 days prior to the hearing by a witness statement that has points mentioned on it that weren't included within the set aside application.

Many thanks as always!