If a defendant tells an outright lie in their submissions to court?

[LaylaBrown]

If a defendant lied in their submissions and a claimant did not succeed on the basis that the lie was believed by the judge, but said claimant later on, as in months later, got hold of irrefutable proof they lied, are there options to apply to the court to set aside the judgment? I don't mean via appeal, but submitting the new evidence that they knowingly lied in order to have the case dismissed?

[LaylaBrown]

BUMP

[R0b]

Yes, you can set aside a judgment obtained by fraud. The general rule is that fraud unravels all, so judgments tainted by a party who has decieved the court, is open to have the judgment set aside, assuming you were not already aware of the fraud at the time of the hearing and you deliberately failed to raised it. The fraud or dishonesty has to be material to the outcome of the judgment because if it would not have changed the outcome, then you are unlikely to succeed.

There are typically two ways of going about this, either you bring fresh proceedings to ask the court to set aside the judgment on the grounds of fraud i.e. you start the whole pre-action process from scratch. The other option is to appeal the decision and then rely on the fresh evidence to obtain a re-trial. Be mindful with fresh proceedings that if those proceedings may not be a money claim unless you have suffered loss since the decision and are seeking to recoup those losses, it will be treated as a non-money claim and you will have to pay a higher fee which is £332. An appeal in the County Court is £151 but there is a lot more work involved and very tight timelines.

If you brought fresh proceedings and failed, you could still then appeal those fresh proceedings, effectively getting two bites of the cherry whereas simply appealing and then failing in your appeal, that would be the end of the road.

Just a point of note, alleging fraud is a matter the courts take very seriously and there is generally a high bar to meet because of the seriousness of the allegations being made. You need to make sure you have that evidence you can prove the court was misled.

[LaylaBrown]

I misspoke. Apologies.

The Judgement was in fact an order to set aside default judgment.

The defendant made an application to set it aside, stating they had not received a copy of the original claim, nor the judgement, and only found out about it from me. They stated via their solicitor that the address on the claim was an old address and they were no longer at the old address. The application was made two months after judgment.

I did not contest that they had reasonable grounds to argue their defence, but I did contest on grounds of timeliness of the application - as per the first prong of the Howey test.

The Judge accepted what the solicitor told them - that they were "no longer using the address." The final hearing is in a months time.

I went to this "old" address last week, on a V. expensive trip to London. Went in the reception. Not only are they still using the address, but so is the solicitor who stated to the Judge they his client was not at said address, at the application hearing!

I have a photo of the big marble monolith in the reception area showing this business on one floor, and the solicitor on the next floor!

So what to do next?

[R0b]

Have you any evidence e.g. photos confirming this?

Have they supplied a new address?

[LaylaBrown]

Yes i have photos.

They confirmed a new address at the application hearing..

[LaylaBrown]

Hello

[R0b]

Well I guess you would have to make an appeal against the set aside, and if so, the hearing will likely be delayed. The question is whether it is worth appealing but that is something you will need to decide. I don't know what happened at the hearing and whether they solely relied on the fact they did not receive the claim form or if they also had a reasonable prospect of defending the claim.

Obviously appealing is going to cost you and there may be costs in play if you lose. Have you verified the new address they have given such as checking companies house to confirm the registered address if they are a company?

[LaylaBrown]

Yes they are still listed at the old address I have a photo of on Companies house.

I did not oppose their right to defend the claim - I opposed the issue of timeliness, as the application came months after judgment.

And their defence of this was that they were no longer receiving mail at the address they are still at today!

[LaylaBrown]

UPDATE

Can someone please advise on the following?

This claim is for £250.

After the application hearing mentioned above, in which the defendant misinformed the judge, and of which I now have proof, default was removed and the claim was reinstated. Based on the company "being located at a different address".

A hearing was set for December 21st.

In the meantime, I made the long journey to this address in London, found out they were still at that London address, and informed them of this. I did not have the photographic proof as their security stopped me taking a photo when I was in the lobby of the building.

This company made an offer to settle - on a without prejudice basis, save as to costs, for £100.

They then increased this to £150. I offered to settle for £230 and they rejected this.

Next thing to occur, months later, was my going to London again and getting this photo. I called up their solicitor, a week before submissions were due, i.e. witness statements, mentioned the photo, and then mentioned the submissions date. Solicitor had no knowledge of this date. I emailed him the photo and the court hearing notice.

I arranged for him to contact me back that day to discuss.

He did not. In fact what he did, four days later, was make an application for a weeks extension of the submissions deadline, and asked for the decision to be made without a hearing. Did not ask my permissions/whether I opposed. Stated the hearing notice was not received. So again mail issues were the reason for the application.

Anyway, a second application hearing was set, and my costs attending this were £150. I told the Judge I did not oppose the application, and the deadline was moved a week. I pointed out that I was not asked if I opposed. Costs were reserved in the case until the final hearing. The Judge also listened as I detailed the misinformation provided about the address months previously, and he said this should be considered at the final hearing, but that now the defendant was on official notice of this, maybe they could respond accordingly?

This same day, the defendant sends me an offer to settle for £230!

I emailed him back, offering to settle for £650. This being:

The £375 total cost of the claim, including filing fee, hearing fee, and interest.

£125 for the time I have spent since the WPSATC offer I made to settle for £230 was turned down, preparing my case.

The £150 spent attending the most recent application hearing.

They emailed me back today, with an increased offer of £260.


So my question is where do I stand here, in relation to them now making an offer to settle for an amount they initially turned down months ago? On a Without Prejudice Save As To Costs basis?

And in relation to my other costs?

[R0b]

Where you stand is entirely up to you and what the minimum amount you are prepared to settle on. Assuming the claim is on the small claims track, you won't get your costs of preparation of the claim if it goes to the hearing.

I explained in my last post about the costs issue and the order around setting aside the default judgment. If you don't appeal then you are deemed to have accepted the outcome of that order. You can try to bring it up in the final hearing of proceedings but the other side can rightfully object on the basis that the application has been disposed of and no appeal was made.

The only costs that I see are potentially recoverable are the second hearing costs which begs the question, how confident are you about winning your claim?

If you think there are good chances of success, you should be entitled to recover those costs of £150 from the previous hearing but you will need to raise that at the end of the hearing because I don't expect the other side to. If you don't raise the issue of costs, the general rule is no order as to costs. In addition, the small claims rules allows you some recoverability of costs under CPR 27.14. In summary, the relevant items are:

(2) The court may not order a party to pay a sum to another party in respect of that other party’s costs, fees and expenses, including those relating to an appeal, except –

(a) the fixed costs attributable to issuing the claim, calculated in accordance with Table 2 in Practice Direction 45;

(c) any court fees paid by that other party;

(d) expenses which a party or witness has reasonably incurred in travelling to and from a hearing or in staying away from home for the purposes of attending a hearing;

(e) a sum not exceeding the amount specified in Practice Direction 27A for any loss of earnings or loss of leave by a party or witness due to attending a hearing or to staying away from home for the purposes of attending a hearing;

2(a) is a fixed cost of £50 for claims over £25 and up to £300.

2(c) will be your issue fee and hearing fee.

2(d) if you will incur costs of travel then keep receipts so they can be shown on the day if necessary. This means parking tickets, train or other public transport. If travelling by car, I would claim 45p per mile and is based on the HMRC tax mileage rate. let the other side raise an issue about that. Other necessary accommodation should be included too such as hotel expenses (maybe even meal costs since you are not actually at home but that might be a stretch though worth pushing if relevant).

2(e) usually applies if you are self-employed but you can also seek to claim your daily salary on the basis that you have had to put in a leave request for this hearing and but for this hearing, you would have been entitled to that extra day's annual leave at work.

If I were in your shoes, bottom line I might be considered to take as a settlement is £525 which is the costs you have incurred for the current claim, and the £150 costs incurred for the previous hearing if you are successful in your claim. Their offer and your offer is still somewhat a bit apart so you need to decide what you will settle for and then give them that final offer with a deadline date of 7 days (make sure expiry date is before hearing) or if it is rejected, then you will focus on preparing for the hearing.

You need to avoid getting bogged down in tit for tat offers, show them you are serious and you are willing to take it all the way so either they need to stump up for more legal representation fees to defend this (which are likely to be more than you are asking if it goes to court) or they pay you what you are asking for.

The final hearing is not that far away and you need to be fully prepared in case they do go all the way so I suggest you focus on that to give you every chance of winning.

[LaylaBrown]

Any advice? Kinfd of urgent as submissions are due Friday...

[R0b]

I really don't know what advice you are looking for nor do I know what these submissions are required for Friday. You originally came here with a specific question which seems to now be expanding wider to your claim against the company but the problem is that we have no idea what your claim is about nor have we seen the defence or any witness statements from either you or the company.

Unfortunately, I can't comment any further, other than what I mentioned in my last post.

[LaylaBrown]

Sorry R0b I was just wondering how without prejudice save as to costs things work. If I offered to settle on this basis three months ago, the defendant refused, but now they are offering to settle for that amount, are they also liable for my costs incurred and time up to the offer they just made? As they originally turned it down.

[R0b]

Without prejudice save as to costs means you cannot refer to the contents of the correspondence or use it as part of your evidence in your witness statement. You can only refer to it when it comes to deciding costs after judgment is given, particularly to show one side as being unreasonable in their conduct in order to reduce any costs order against them.

If I offered to settle on this basis three months ago, the defendant refused, but now they are offering to settle for that amount,

So what, they can offer you anything they like, more or less as time goes by, even a red coloured crayon if they felt like it. They have gradually increased their offer and their role is to settle for the least amount of money. It is common for companies to offer an increased settlement as time comes close to the hearing because it will become more costly.

are they also liable for my costs incurred and time up to the offer they just made?

I refer you back to my previous post. The only way you will get your full costs is if you get them to agree to it in a consent order.