defending N244 application to set aside default judgment

[andsmi]

Hello Everyone.

Default judgment has been obtained in the English courts against a company with its registered office in Scotland but who carry out a lot (probably a vast majority) of their business activity in England. The matter was a matter of UK wide law. The companies terms on their website provide for disputes being resolved in the English Courts.

Claim forms were served on the defendant by the CCBC. An acknowledgment of service was filed by the defendant within the permitted 14 days. Detailed particulars of claim were signed for by the defendant (sent RM recorded delivery). The defendant never responded to the detailed particulars (they presumably lost them) and default judgment has been issued.

The defendants solicitor now (inevitably) is making a huge issue of his client being registered in Scotland but being served the claim and the detailed particulars in England. The address used was exactly as listed on the defendants website as its address for written correspondence and was the same address where the CCBC sent the claim form. The solicitor raised no issue whatsoever with the address when acknowledging service but now wishes to state that valid service never occurred even though one of his clients employees signed for the detailed particulars of claim.

The defendant does a huge volume of business in England. Its advertised address for written correspondence is in England. It was a PO Box address however this is the address they advise on their website for written correspondence and the documents were signed for by a member of the defendants staff. The claim form was safely received at this exact address and acknowledged (despite not being sent RM recorded delivery).

Also lets surmise the company was called Bobs Clowns Limited but they trade everyday as Clowns R Us. The claim was against Bobs Clowns Limited t/a Clowns R Us (the t/a being common parlance for "trading as"). Their solicitor is now arguing no such entity exists called Bobs Clowns Limited t/a Clowns R Us however it is appears unambiguous as to who the entity the judgment is against. Naturally, she asserts this is a get out clause for her client.

It is also worth nothing the company concerned has significant provable past form for either ignoring, mishandling or providing significantly delayed responses to correspondence.

I was prepared for a dispute when the default judgment was issued however not on the issues which were raised. I expected it would be contested asking for a discretionary set aside however they are going down the mandatory route.

Any help is greatly appreciated.

Thanks everyone in advance.

[R0b]

Hello,

I suspect you may not have followed the Civil Procedure Rules on serving the claim form which, if you have not properly served it in accordance with the rules, renders service of the claim form and/or the particulars invalid which could be grounds for setting aside the default judgment. You follow the rules to the letter otherwise you risk having to defend your actions and possibly landing yourself with a costs order against you as a result. It's no excuse for you to say you didn't know the rules because the easy answer to that is don't issue a claim until you understand the rules.

Are you able to upload the contents of question 3 of the application that says what they are asking for together with the witness statement or evidence and reasons why they are seeking the order so that we can understand what the legal basis and justification is?

Also, you say that they acknowledged the claim within 14 days but were the detailed particulars of claim sent to the address that was listed on the acknowledgment form or to another address, presumably the same address as the claim form?

I will have to check but I am sure the rules say something about the fact that you can't apply to set aside a default judgment if you have already acknowledged the claim so they could be scuppered there.

[atticus]

See item 7 in the table in CPR 6.9 - I think you have done this.

I do not see that the solicitor's point about the name has any force if the company does indeed have the name you have given (Bob's Clowns Limited in your example).

[andsmi]

Hello again everyone.

Thanks a lot for your replies.

I've had some further time to digest everything and try and understand what the real issues are here. Understandably, the N244 is stuffed full of the usual defendant solicitor piffle which they advance to impress their clients and justify their fees but ultimately adds very little.

The defendant solicitor put in an AoS within 14 days as his client had received the claim form at the PO Box address (which wasn't sent recorded delivery by the CCBC). The particulars of claim were sent to the exact same PO Box as the claim form on the date of issue and were signed for.

They acknowledged service to the PO Box address and said nothing whatsoever to anyone about it being used (its the address on their clients website). What has happened is they lost the particulars of claim and have received summary judgment and now cry foul about me using the same PO Box they acknowledged service of the claim form to.

I'm trying to find something (CPR rule, case law) which basically says that if you formally acknowledge service of a claim form to an address you cant then dispute that exact same address for the particulars of claim just because of your own utter incompetence and ineptitude and because you lost the particulars and want the judgment set aside.

My enquires so far have indicated that what happens is all the mail for this organisation is collected and collated at the PO Box by Royal Mail and then delivered to the organisations actual post room nearby early in the morning by Royal Mail. The PO Box effectively acts as sorting and bundling service for the organisation.

I can see the argument about service to an obscure, unadvertised PO Box that is never attended to (which I would never try and serve to) however they receive bulk loads of mail from this PO Box every morning. It a multi-billion pound institution we are talking about here. The particulars of claim were signed for. They advertise this PO Box on their website and they signed for the recorded delivery.

I may regret saying this but I am not too concerned about costs. Set-asides appear not to follow the usual costs follow the event rule. This solicitor and this organisation is responsible for this situation and without saying too much I have considerable evidence they have badly mishandled correspondence before (which in part explains why the principal case was brought against them). Also, the solicitor never even contacted me to make me aware of the N244 even going in. There is also the whole promptness debate if we end up in a discretionary set aside situation - it was 3 weeks from the date of judgment that they applied for the set aside. Case law suggests this is bordering on the realms of being considered not to have been prompt.

Thanks again everyone.

[atticus]

You might do well to search in the 'Civil Litigation Brief' blog: https://www.civillitigationbrief.com/