A reasonable excuse?

[removalman]

Hello,

What constitutes a reasonable excuse?

I obtained judgement at a County Court last week. The Defendants solicitors simply didn't turn up for the hearing so of course it was pretty much a formality.

Inevitably an application to set aside judgement has now been lodged for the Judge to consider.

Obviously the Defendant has to satisfy the Judge that they have a case that there is a reasonable chance of winning which I'm sure they may be able to do.

They also have to have a good reason for their failure to attend the original hearing. In this case their excuse is that they simply forgot to put it in their diary! Is that fair and reasonable? The hearing date has been in the domain for four months and was the subject of significant correspondence.

Will the DJ regard that as a reasonable excuse?

I find it incredible that they would use that as a reason for their failure to attend.

Who would like to speculate on the view that the DJ will take when deliberating the application to set aside?

[Guest]

Re: A reasonable excuse?

Hi
I don’t know if the court would regard this as reasonable or not but it is bloody unfair. I have been following your thread and I see the strain that this case is causing you, it is all very well for them to dismiss their unprofessional behaviour like this, for them it is just another day at the office.
I think I would be making the court aware of your displeasure with their behaviour.
Peter

[removalman]

Re: A reasonable excuse?

When it comes to abuse of Court procedure some Solicitors are right up there.

I wish fairness had something to do with it as the common man would get justice.

As you say, for them its just another day at the office...

Completely unfair.

[labman]

Re: A reasonable excuse?

If it is adjudged as a reasonable excuse, I would honestly go to the press.

I have not followed your thread closely, but as Peter rightly says, this would be exceedingly unfair and in the literal sense of the word unjust.

I hope you get justice.

[charitynjw]

Re: A reasonable excuse?

CPR 39.3

http://www.11sb.com/pdf/insider-tria...s-mar-2011.pdf


"Recognising the potential injustice that this might
cause, CPR r39.3(5) provides that:
‘Where an application is made [to set aside
judgment made in the applicant’s absence], the
Court may grant the application only if the applicant:
• acted promptly when he found out that the
court had exercised its power to strike out or to
enter judgment or make an order against him;
• had a good reason for not attending the trial;
• and has a reasonable prospect of success.’
For the court’s jurisdiction to be engaged all three
requirements must be met."

[removalman]

Re: A reasonable excuse?

[quote=charitynjw;252800]CPR 39.3

;
• had a good reason for not attending the trial;


"I'm sorry judge. I'm just a Lawyer (which makes me very important) and I'm quite busy - I completely forgot to put it in my diary".

You couldn't really make it up could you?

[removalman]

Re: A reasonable excuse?

On a more serious note, can I make representations to the Judge outlining my views about reasonableness and fairness?

[basa48]

Re: A reasonable excuse?

[QUOTE=removalman;252807]

CPR 39.3

;
• had a good reason for not attending the trial;


"I'm sorry judge. I'm just a Lawyer (which makes me very important) and I'm quite busy - I completely forgot to put it in my diary".

You couldn't really make it up could you?

Erm, I recently (eventually) won a case against a well known catalogue company.

First they failed to file a an acknowledgement which enabled me to get a default judgement, they then filed for a set-aside, but failed to turn up to the hearing.

They filed a second set-aside claiming they had not received notification of the first set aside hearing (even though it was posted to the same service address as all other correspondence).

They got the set aside but then failed to file their defence (they claimed their email to the court went missing). They then failed to turn up for the case management hearing (claiming a secretary had filed the case as closed) and finally lost the case at the full hearing.

From my initial claim to final judgement took 21 months !!!

So it seems that creditors get acres of leeway to abuse court process with no penalty.

[labman]

Re: A reasonable excuse?

Basa, you cynic. I hope you're not implying that you would not have received the same coutesy had things been reversed!

[charitynjw]

Re: A reasonable excuse?

Probably just LIP service, lol!

[removalman]

Re: A reasonable excuse?

At the risk of antagonising the Judge I decided to send some representations to the Court today.

Really not sure if it will get considered or not but in for penny...

[basa48]

Re: A reasonable excuse?

Probably just LIP service, lol!

Groan !!!!!

[removalman]

Re: A reasonable excuse?

All,

I wanted to take a few minutes to update you all (especially those whose advice has been invaluable over the last few months).

Yesterday, I attended another hearing where the defendant (Bank of Scotland) was represented by a Lawyer and I represented myself. The hearing was for the judge to consider the defendant application to set aside my default judgement.

To cut to the chase, the Judge threw out the application and my original default judgement remains in place - so in effect I won the case thanks to the advice of all the helpful folk on here!!!! So my hearfelt thanks to you all and when I get the settlement cheque I shall certainly be making a donation to Legal Beagles as I could never have done this on my own.

Just so you know, I was able to use CPR 39.3 to question the judge whether he thought forgetting to put the original hearing date in a diary could possibly constitute a good reason for not turning up. The interesting thing is that he made the point that if it had been just one error in that the Defendant had been notified only once of the hearing date, he would have allowed the set aside request to succeed. However, as I was able to demonstrate that the Defendant had been notified of the original hearing date on at least three occasions and therefore the Judge felt that this was unacceptable.

The best bit of all is not so much the fact that I'm going to actually get more money than I would have originally settled for, but it was the expresssion on the face of the banks in-house Lawyer when she knew that the game was up. Suffice to say, she made a very rapid departure!

Get in!!!!!!!

[bluebottle]

Re: A reasonable excuse?

If the bank's in-house lawyer mislead or attempted to mislead the court, that is serious professional misconduct and should be reported to the BSB, ILEX or SRA as appropriate.

[removalman]

Re: A reasonable excuse?

Final entry from me in this thread will be to let you all know a cheque arrived a few days ago and a donation was made to LB.

Thank you all!