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?

[Anna1972]

I’m really pleased for you. Hope you had your monies! My case still continues, it was supposed to take place a year ago and up to this date I’m still waiting

[zas90]

Judgment was entered against the Defendant, the order also attaches costs and places a bar on the Defendant from being able to defend the claim.

Glad this whole claim is over.

[zas90]

Just another update.

Defendant failed to supply the documents ordered by the court. Judgement again has been requested (I believe this is the sixth time he's failed to comply with an order), I am not holding out any hope with this though.*

[zas90]

Apologies for my late response.

An update;

Hearing was scheduled for 23rd March 2020, of course the Country went on lockdown on the 23rd March 2020 so the hearing did not go ahead from my understanding (I did not attend).

I requested as per CPR 27 to have the hearing my my absence (sent 14 days before the hearing), the Defendant did not bother sending any paperwork (witness statement, evidence bundle etc).

Fast forward to today (20th April), I receive YET ANOTHER ORDER allowing him until the 27th April 2020 to serve a witness statement, the order notes that I have complied with everything and need to do nothing further at this point, it also states that the hearing will be rescheduled after July 2020. Of course the Defendant was given more opportunity to comply with a basic court order.

What Next?

No doubt he'll fail to comply with this concession and be allowed another month to comply with it.

In response to points made above by other posters;

I am entitled to have a hearing in my absence, going off the conduct of the Court and Defendant, my presence will have no benefit, I am aware that this COULD be detrimental to my case, however at this point I just want this matter over and done with (for the sake of the amount I've claimed, I wish I had just let him get away with selling a faulty car), however I will not discontinue as this will allow the judge to issue costs against me (in which I have no doubt she would do).

I hand delivered to the Court my Witness Statement and Evidence bundle a month before the hearing (it was around 60 pages, comprising of evidence exhibits, table of contents, and of course a witness statement that addresses my claim and the points made by the Defendant in his defence, everything was numbered and easy to find), I set out a concise case, everything referenced within my claim has been backed by stacks of evidence plus well researched caselaw that categorically proves my stance is correct from a legal point of view. Any potential questions I think that could be asked have been addressed.

[Anna1972]

Is there an update?

[R0b]

I agree with Mike. Any person who thinks their case is solid but then chooses to not attend the hearing would be foolish and naive and especially more so if the defendant decides to turn up.

Any advantage you might have could be lost by not being present at the hearing and it is a simple fact that those who turn up have a better chance of winning than those who don't. For starters you won't be able to rebut anything the defendant says as part of their case and the judge will only have the material you've given. He or she won't argue your case for you because that's your job.

I suspect that if the court dismisses your claim you will be crying foul again and using this case as another way to say the courts are kangaroo courts and there's no justice etc. To be honest, I think the blame there would fall squarely with you.

But hey, each to their own and let's hope the judge does side with you, good luck.

*

[MIKE770]

Paperwork and cheque were served today (Defence). Terrible defence as expected, I've already got a witness statement drafted up with all my exhibits, realistically my case is watertight, HOWEVER, I know I'm dealing with a kangaroo court, so I'll pay the hearing fee, and then I'll have my case heard in my absence (I'll send all the relevant documentation and a letter stating I won't be attending).

1st Mistake - NOT ATTENDING!

[zas90]

P.s. do I need to respond to the defence, or am I good just sending in my witness statement and exhibits as per the original order made stating 14 day before the hearing.*

[zas90]

Paperwork and cheque were served today (Defence). Terrible defence as expected, I've already got a witness statement drafted up with all my exhibits, realistically my case is watertight, HOWEVER, I know I'm dealing with a kangaroo court, so I'll pay the hearing fee, and then I'll have my case heard in my absence (I'll send all the relevant documentation and a letter stating I won't be attending).

[Anna1972]

Wow, patience. Patience, patience, patience. I know it is frustrating, but you need to wait.

[jaguarsuk]

He'll miss the next deadline in the next few days, I'll apply for a summary judgement for the third time, the court will most likely grant him another extension of time. I have a suspicion the judge will retain the order until my hearing fee is due, at which point if I don't pay, she'll immediately strike it out with disproportionate costs awarded against me, it's almost as if the court is trying to manufacture a result.

I completely agree, if your face doesn't fit, a late 20's claimant representing himself, versus a 60 year old solicitor representing his defendant, even my partner couldn't believe how friendly they all were to each other.

Unless he files the case cannot be moved on to the hearing, so no fee can become payable until he has filed a defence as you may wish to reply to his defence.

There's only so long the judge will tolerate it regardless of their little club. They'll be bound to act if he does not file again.

[zas90]

He'll miss the next deadline in the next few days, I'll apply for a summary judgement for the third time, the court will most likely grant him another extension of time. I have a suspicion the judge will retain the order until my hearing fee is due, at which point if I don't pay, she'll immediately strike it out with disproportionate costs awarded against me, it's almost as if the court is trying to manufacture a result.*

I completely agree, if your face doesn't fit, a late 20's claimant representing himself, versus a 60 year old solicitor representing his defendant, even my partner couldn't believe how friendly they all were to each other.*

[jaguarsuk]

I know it stings, but they are all in the same 'club' and behave like it, how if he has got a solicitor they have not complied with the order I do not know.

The only thing you can do as Anna says is sit tight and then complain once you have won.

[zas90]

We have our own suspicions with regards to this, he has two other County Courts that are closer, however he chose one further away, where his solicitor was very friendly with the usher, even going behind their desk and chatting to them whilst waiting for our hearing. Of course I'm not going to throw out conspiracy theories without concrete evidence, everything does seem very strange, my partner also noticed this strange behaviour.*

If this is the standard of service we can expect to receive from the courts, then I'm not sure whether the system is fit for purpose, this behaviour from the judge flies in the face of the Overriding Objective and case law with regards to compliance with court imposed time lines.*