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And suddenly there was a defence...

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  • Re: And suddenly there was a defence...

    Looking at this case it seem the correct approach is to apply to set aside the judgment then apply to strike it out:

    http://www.hardwicke.co.uk/assets/ma...ca%20Jones.pdf

    It seems what they are trying to do is effectively strike out a judgment. Abuse of process me thinks...

    Comment


    • Re: And suddenly there was a defence...

      I just rang the court and the Judge has told them to apply to set aside the judgment first. He basically told them not to be so incredibly cheeky... :whoo:

      Comment


      • Re: And suddenly there was a defence...

        Update

        Still no set aside application. Is it too early to call this a victory?
        Last edited by heisenberg; 23rd March 2016, 12:53:PM.

        Comment


        • Re: And suddenly there was a defence...

          I have just called the court and I'm told the other side has recently applied to set aside the default judgment (a day or so ago).

          I am seriously hoping the Judge does not bend over backwards for them (in this case he/she would be doing backward somersaults). If he/she does I am afraid I would not be surprised - I have lost faith in the civil judiciary.
          Last edited by heisenberg; 23rd March 2016, 13:23:PM.

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          • Re: And suddenly there was a defence...

            what are your arugment as for opposing the application
            If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
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            Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

            Comment


            • Re: And suddenly there was a defence...

              Sorry to say but they have I expect a Barrister to put their case you are at a disadvantage if the old boys network kicks in Good luck anyway

              Comment


              • Re: And suddenly there was a defence...

                Originally posted by R0b View Post
                what are your argument as for opposing the application
                I haven't seen the application yet. I strongly suspect though it would be something like "oh, sorry, the Chair at our client's organisation was on leave and got back to find a County Court Judgment (CCJ). Unfortunately as our client is a small organisation there was no other person with the authority needed to instruct a firm such as ourselves. We are sorry it has taken 5 weeks to apply to set aside the judgment but we needed sufficient time to consider the allegations made against us and take instructions."

                I don't know how they are going to explain ignoring the pre-action letters though (they sent me read receipts). They may try to argue the service was not valid as they were sent by e-mail.

                - - - Updated - - -

                Originally posted by wales01man View Post
                Sorry to say but they have I expect a Barrister to put their case you are at a disadvantage if the old boys network kicks in Good luck anyway
                Yeah, I'm more worried about the old boys network and the fact the Judges have wide discretion than I am about the fact that they would instruct a barrister.

                Comment


                • Re: And suddenly there was a defence...

                  Well if you served the claim form by email then of course that could be a ground for invalid service because you either need consent or permission by the court. Equally, you could say that they did not indicate that they refused service by email or respond by saying they do not accept service once the claim was issued, despite having every opportunity to do so.

                  Is this the same organisation which ignored your letter before action and failed to acknowledge the claim and file a defence or is this a different one? If it is the same one then that could be a strong argument in favour or not setting aside as any organisation who is served with a claim would expect that the matter is serious enough to warrant at least acknowledgement of the claim even if there was supposedly no authority to do so.

                  They tried to strike out the claim initially which is an abuse of process and therefore further delayed the application to set aside. Taking into consideration the defendant's behaviour and conduct and the time it has taken to set aside since the CCJ, the set aside should be dismissed.
                  If you have a question about the voluntary termination process, please read this guide first, as it should have all the answers you need. Please do not hijack another person's thread as I will not respond to you
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                  LEGAL DISCLAIMER
                  Please be aware that this is a public forum and is therefore accessible to anyone. The content I post on this forum is not intended to be legal advice nor does it establish any client-lawyer type relationship between you and me. Therefore any use of my content is at your own risk and I cannot be held responsible in any way. It is always recommended that you seek independent legal advice.

                  Comment


                  • Re: And suddenly there was a defence...

                    Hi Rob,

                    Originally posted by R0b View Post
                    Well if you served the claim form by email then of course that could be a ground for invalid service because you either need consent or permission by the court. Equally, you could say that they did not indicate that they refused service by email or respond by saying they do not accept service once the claim was issued, despite having every opportunity to do so.
                    I only sent the letter before action and follow-up letter to the Defendant by way e-mail. I sent the claim etc. to the County Court Money Claims Centre (CCMCC) in accordance with the standard procedure and in the post. They clearly had no difficulty processing the claim.

                    Originally posted by R0b View Post
                    Is this the same organisation which ignored your letter before action and failed to acknowledge the claim and file a defence or is this a different one? If it is the same one then that could be a strong argument in favour or not setting aside as any organisation who is served with a claim would expect that the matter is serious enough to warrant at least acknowledgement of the claim even if there was supposedly no authority to do so.
                    Yep, this is the same case. That certainly seems reasonable to me.

                    Originally posted by R0b View Post
                    They tried to strike out the claim initially which is an abuse of process and therefore further delayed the application to set aside. Taking into consideration the defendant's behaviour and conduct and the time it has taken to set aside since the CCJ, the set aside should be dismissed.
                    I hope you are right. I suppose it comes down to how lame the excuses are and how sympathetic the Judge feels. That said, there is now strong case law in Denton v TH White Ltd; Decadent Vapours v Bevan; Utilise TDS v Davies [2014] EWCA Civ 906. If there is any inefficiency on the Defendant's part (which there appears to be) then the set aside application should be refused.

                    Full judgment here:

                    https://www.judiciary.gov.uk/wp-cont...nt-utilise.pdf

                    Comment


                    • Re: And suddenly there was a defence...

                      Defence was due on 3 February 2016 so that is a delay of around 1 month and 19 days.

                      Comment


                      • Re: And suddenly there was a defence...

                        The court has listed the application for the 29th (Tuesday).

                        I have attached a copy of the application.

                        To sum up, they assert they 'assumed' the claim was not properly served due to the fact that I did not specify a sum on the form N1 (I am advised that I did not need to). They concede this was an 'oversight'. Oversight = inefficiency as far as I am concerned. The case law is clear that if there is a inefficiency on the part of the Defendant the default judgement should stand.

                        They should have served a defence and alleged the claim was not served correctly.

                        They have still not served a substantive defence.

                        They have conveniently skipped over the fact that they also just ignored the pre-action letters.

                        They have not addressed the fact as to why it took them so long to apply for the judgement to be set aside and skip over the fact that their strike out application was an abuse of process.
                        Last edited by heisenberg; 24th March 2016, 17:23:PM.

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                        • Re: And suddenly there was a defence...

                          It seems they waited for the very last possible second to make this application - total bastards.

                          Both tomorrow and Monday are bank holidays.

                          Comment


                          • Re: And suddenly there was a defence...

                            Would the court service even serve the claim on the Defendant in the service of the claim was not valid?

                            Comment


                            • Re: And suddenly there was a defence...

                              Update

                              In Court this morning the other side argued that I do not meet the definition of disability in arguing they have a reasonable prospect of successfully defending the claim (of course if they had engaged in the pre-action protocol this would not have been an issue).

                              They further argued that I did not particularise my claim very well (of course if they had engaged in the pre-action protocol this would not have been an issue).

                              Judgement set aside on this basis whilst the Judge agreed the Defendant had acted foolishly.

                              Seems the Judge also bent over backwards for them in terms of excusing their delay in making the set aside application.

                              Still no defence. Does Albesher v Ryan [2016] EWHC 541 not apply?

                              I am told that Mitchell and Denton do not apply in respect to an application made under CPR 13.3 as that deals specifically with relief from sanctions.
                              Last edited by heisenberg; 29th March 2016, 13:02:PM.

                              Comment


                              • Re: And suddenly there was a defence...

                                Are you calling it a day now?

                                Comment

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