Set Aside

[zas90]

Hello, I hope you're all doing really well.

Earlier this year, I purchased a motor vehicle from a trader, a few days later, faults occured, I contacted the trader seeking a refund (as I was entitled to), and I was ignored.

I had the defect repaired about 2 weeks later, I sent the trader a copy of the invoice in which he responded 5 minutes later essentially going off on an illiterate rant about how I should've taken the car to him, and that he won't refund my money.

I issued an LBA against him, this was ignored, and then issued proceedings against him. He acknowledged the claim immediately, however failed to file a defence within the 33 days allowed by the court, I submitted a default CCJ against him.

Roll on a month with no correspondence, and to my surprise, I receive a set aside application in the post, made by his solicitor, essentially defending the claim within this application.

I find it nothing more than an abuse of process, that after ignoring everything, failing to defend the claim, he is trying to get the CCJ set aside.

The court has referred the application to the local county court, and will be in touch shortly. Surely the defendant cannot ignore everything, file an acknowledgement of service, and ignore the claim, and then try to set it aside after a month of the CCJ being issued?

[jaguarsuk]

Hello, I hope you're all doing really well.

Earlier this year, I purchased a motor vehicle from a trader, a few days later, faults occured, I contacted the trader seeking a refund (as I was entitled to), and I was ignored.

I had the defect repaired about 2 weeks later, I sent the trader a copy of the invoice in which he responded 5 minutes later essentially going off on an illiterate rant about how I should've taken the car to him, and that he won't refund my money.

I issued an LBA against him, this was ignored, and then issued proceedings against him. He acknowledged the claim immediately, however failed to file a defence within the 33 days allowed by the court, I submitted a default CCJ against him.

Roll on a month with no correspondence, and to my surprise, I receive a set aside application in the post, made by his solicitor, essentially defending the claim within this application.

I find it nothing more than an abuse of process, that after ignoring everything, failing to defend the claim, he is trying to get the CCJ set aside.

The court has referred the application to the local county court, and will be in touch shortly. Surely the defendant cannot ignore everything, file an acknowledgement of service, and ignore the claim, and then try to set it aside after a month of the CCJ being issued?

The defendant acknowledged service and therefore he received the claim, he had opportunity to file a defence and did not. You will need to demonstrate that on top of this his defence has no real prospect of success and therefore there is no good reason why the court should set the judgement aside.

Probably best to post your original Particulars of Claim, his application, Witness Statement (if there is one) and draft defence with personal information removed to enable advice.

[zas90]

Thanks for your reply, it's much appreciated.

My particulars of claim were around 10 pages long due to the issues at hand, I also included evidence that supported the facts within my claim, so I'm not sure whether I would be able to copy and paste it here (I can send it to an email address if necessary).

He had 28 days to file a defence, I have signed for delivery that shows my extended particulars were signed for at his address, he ignored it after issuing an AOS, and then ignored the default judgment until a month later, just seems like hes wasting my time and the courts time.

He hasn't included a draft defence, there's no witness statement, just 2 lines accusing me of being a trader and not a consumer (which isn't true), that I didn't give a breakdown of costs claim (both my pre claim correspondence, letter before claim, and particulars of claim included copies of invoices and a full breakdown of the claim), and that I didn't give him sufficent notice to remedy the faults with the vehicle (I gave him 2 weeks before having the faults fixed myself because he ignored my correspondence, and the Consumer Rights Act 2015 doesn't give a time scale in regards to repairs).

I find it absolutely abhorrent that he can essentially request a set aside having ignored everything apart from filing an AOS, a month after the CCJ was issued having made no contact and failing to apply for a time extension to file a defence. It's concerning that he's essentially trying to get a second chance to file a defence 65 days after the claim was issued.

How does the set aside process work? I've received correspondence with a copy of his application, stating it's being allocated to his local court (only 15 miles from me fortunately), will I need to submit some sort of bundle to the judge who will decide whether to continue to a hearing? Or does it just go straight to a hearing?

Many thanks!

[jaguarsuk]

Thanks for your reply, it's much appreciated.

My particulars of claim were around 10 pages long due to the issues at hand, I also included evidence that supported the facts within my claim, so I'm not sure whether I would be able to copy and paste it here (I can send it to an email address if necessary).

He had 28 days to file a defence, I have signed for delivery that shows my extended particulars were signed for at his address, he ignored it after issuing an AOS, and then ignored the default judgment until a month later, just seems like hes wasting my time and the courts time.

He hasn't included a draft defence, there's no witness statement, just 2 lines accusing me of being a trader and not a consumer (which isn't true), that I didn't give a breakdown of costs claim (both my pre claim correspondence, letter before claim, and particulars of claim included copies of invoices and a full breakdown of the claim), and that I didn't give him sufficent notice to remedy the faults with the vehicle (I gave him 2 weeks before having the faults fixed myself because he ignored my correspondence, and the Consumer Rights Act 2015 doesn't give a time scale in regards to repairs).

You simply need to file a Witness Statements stating the reason you oppose his application to set aside judgement being that there is no good reason for the court to set it aside.

I find it absolutely abhorrent that he can essentially request a set aside having ignored everything apart from filing an AOS, a month after the CCJ was issued having made no contact and failing to apply for a time extension to file a defence. It's concerning that he's essentially trying to get a second chance to file a defence 65 days after the claim was issued.

He's not trying to get a second chance, he's playing the system for time and it's quite a common thing. Is the judgement against his Ltd company?

How does the set aside process work? I've received correspondence with a copy of his application, stating it's being allocated to his local court (only 15 miles from me fortunately), will I need to submit some sort of bundle to the judge who will decide whether to continue to a hearing? Or does it just go straight to a hearing?

Many thanks!

The court will order a hearing and you'll need to file a Witness Statement to oppose his application. You won't present any evidence at this stage, you'll basically just argue against his right to set aside.

CPR 13 deals with set aside: https://www.justice.gov.uk/courts/pr...l/rules/part13

[zas90]

I really appreciate your time. I've drafted a witness statement (I like to prepare early), so I'll await court allocation and be prepared to get the witness statement to the court when it's requested shortly.

He is a motor trader who sells via Ebay from his home address, however he is trading as a sole trader (sold the car under his own name, had the money transferred to his personal account), so I pursued him as a person and not a LTD company.

Would it be worth making a note within my witness statement that I ask the court to consider awarding me unreasonable behaviour costs due to the defendants conduct? The fact that he ignored an LBA, filed an AOS but didn't bother with a defence, then waited a month to file a set aside comes across as unreasonable behaviour in my opinion.

Thanks for your time!

[jaguarsuk]

I really appreciate your time. I've drafted a witness statement (I like to prepare early), so I'll await court allocation and be prepared to get the witness statement to the court when it's requested shortly.

Good, we always advise not to leave it to last minute and it will serve you well to prepare in court proceedings.

He is a motor trader who sells via Ebay from his home address, however he is trading as a sole trader (sold the car under his own name, had the money transferred to his personal account), so I pursued him as a person and not a LTD company.

This is correct, if he's a sole trader he is personally liable. That is good because although he is clearly playing for time it's not to close down the company and set up another one to trade under, a common scam with Ltd companies to avoid debts. It's called Phoenixing.

Would it be worth making a note within my witness statement that I ask the court to consider awarding me unreasonable behaviour costs due to the defendants conduct? The fact that he ignored an LBA, filed an AOS but didn't bother with a defence, then waited a month to file a set aside comes across as unreasonable behaviour in my opinion.

Thanks for your time!

You can ask for costs, but don't be surprised if you don't get any as Litigant in Person other than cost of travel/parking at court, day of pay if you have to take unpaid leave. Very basic costs is what I'm trying to say where you have had an actual loss in your pocket.

[zas90]

I hope you're all doing really well.

I've received a letter from the court setting the date for the hearing, am I correct in sending off my witness statement to the court and defendant? It mentions nothing about witness statements or who must attend, just that the hearing will take place.

Kindest regards.

[jaguarsuk]

I hope you're all doing really well.

I've received a letter from the court setting the date for the hearing, am I correct in sending off my witness statement to the court and defendant? It mentions nothing about witness statements or who must attend, just that the hearing will take place.

Kindest regards.

That's very unusual, check the order and attachments again as usually it is ordered that Witness Statements with exhibits be exchanged no later than 14 days prior to the hearing date.

[zas90]

The document is titled "NOTICE OF HEARING OF APPLICATION"

It states the following;

"The hearing of the defendants application for setting aside the judgement (see copy attached) will take place at XX:XX AM on the XX November 2019 at the County Court at Nuneaton, Warwickshire Justice Centre, Po Box 3878, Vicarage Street, Numeaton, CV11 4WX".

Nothing else is stated on the letter.

The only document attached was a copy of the Set Aside application that was made.

I just presumed that I should send a copy of my witness statement and potentially original particulars of claim to the court and defendant, and turn up on that date.

[zas90]

Just engaged with a solicitor who confirmed my stance, she's said to simply serve the court and defendant with a coherent witness statement opposing the application, she said it's somewhat unusual for a set aside application to be made where the defendant responded to the claim but didn't file a defence, and that essentially he shouldn't have any prospect of success. I'll keep everyone updated.

[jaguarsuk]

Just engaged with a solicitor who confirmed my stance, she's said to simply serve the court and defendant with a coherent witness statement opposing the application, she said it's somewhat unusual for a set aside application to be made where the defendant responded to the claim but didn't file a defence, and that essentially he shouldn't have any prospect of success. I'll keep everyone updated.

She's right unless he can show an extremely good reason why he didn't file, such as a sudden illness requiring hospitalisation or such. If he was a Ltd company I would be worried that he's playing for time to sell it's assets to a newly formed Ltd co, but as a sole trader what ever he's buying time for isn't going to work.

[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!

[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]

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]

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