Small Claims - Judgement Set Aside Hearing

[ANW1985]

Hi,
Thanks in advance for your help. As with most thread-starters, I'm a newbie here.

I'm the claimant in a small claims case against a building firm.
The hearing was in October, and the judge ruled in my favour (mainly because the defendant didn't show up).
After receiving the court's judgement, the defendant made an application to have the judgement put aside because they "didn't get a letter telling them of the court date".

I think the defendant is just finding an excuse to waste the court's time, but really, I just want a resolution to it all.

The hearing to put the judgement aside is next week, and I had a couple of questions:

I have evidence (recorded delivery) that they received my proposed documents ahead of the initial hearing - will I be able to present this to the judge in this hearing to show that they have at least received "something" related to the first hearing and they shouldn't have any excuses.

With me there, can the judge also just hold another hearing on the case?

This will be the first time I've seen the defendant since the process has begun. If they make an offer to settle the case outside of court, is it something I can/should do? Or should such an agreement be made formally in writing before being accepted etc?

Thanks again for your help!
Regards
Alastair
*

[MIKE770]

set a side then the case goes back to court and you should hear next step, they get set aside with good reason then it carries on if they made an offer is it aggregable with you or not? if not then await next move

[ANW1985]

set a side then the case goes back to court and you should hear next step, they get set aside with good reason then it carries on if they made an offer is it aggregable with you or not? if not then await next move

Thanks! if the offer is agreeable, will verbal acceptance be binding? or should I insist on a formally written offer that I would accept?

[R0b]

I have evidence (recorded delivery) that they received my proposed documents ahead of the initial hearing - will I be able to present this to the judge in this hearing to show that they have at least received "something" related to the first hearing and they shouldn't have any excuses.

Yes, that could be used as persuasive evidence but not guaranteed because the court still has discretion to set aside.Your evidence would add more weight if you enclosed a cover letter to the effect that the evidence enclosed is provided in advance of the court hearing on X date. either way, you can focus on the point that a reasonable person would have questioned why he was receiving documents if he had not heard back from the court and therefore reasonable inquiries would have been made. Assuming the defendant hasn't made reference to inquiries you can also point that out.

Consider calling the court and confirming if there is a record on file that the the letter containing the court date was actually sent. In yes, you can say to the judge for the purposes of the CPR, the letter was deemed served.

If you have been corresponding by post with the defendant and he received/replied to those then you can also raise this as a curiosity that he received all previous correspondence (and after) but somehow didn't receive the court date. You could argue that on balance of probabilities the defendant did receive the court letter.

With me there, can the judge also just hold another hearing on the case?

It is possible but the ordinary position is no, especially with a set aside hearing since they are generally short and are usually timetabled for no more than 15 minutes, 30 minutes max.

This will be the first time I've seen the defendant since the process has begun. If they make an offer to settle the case outside of court, is it something I can/should do? Or should such an agreement be made formally in writing before being accepted etc?

Entirely up to you. Lots of cases are settled on the doorsteps of court, but make sure you are getting what you want out of it and not a bad deal. Offers and acceptance of them do not need to be put in writing so if the defendant makes an offer to you and you say "agreed" that's legally binding and don't think you can get out of it after thinking about it later.

Have a figure in mind that you would like, and then a bottom-line figure that you'd be prepared to go (don't tell the defendant this but in your head). If you need time to think about it then say so and don't be pressured into something simply because the defendant says this is a 5minute offer, take it or leave it. You still have the opportunity to claim the full costs you seek at the hearing.*

Should you agree a settlement you can walk into the court and explain to the judge you've reached a settlement and ask the judge to ratify it.

On the off chance the defendant is successful and asks for costs, you should try to say that based on the evidence presented, a costs order should be in favour of you, or alternatively costs in the case - meaning that costs reserved pending the outcome of the final hearing. If you are successful, costs of the set aside hearing awarded to you and vice versa. Equally, if you are brave enough, you can raise the issue of costs at the end yourself and ask the judge to consider awarding you costs but make sure you've presented a cost schedule 24 hours in advance and to the defendant, otherwise you might not be given any. Costs are awarded at £19 per hour which is the litigant in person rate.

Judge might say that no costs can be awarded because its subject to small claims rules. You can counter that by saying actually this is not the small claims hearing, it's an interim application not allocated to small claims track and the normal costs rules apply. CPR 27 (Small claims) confirms this.