And suddenly there was a defence...

[Openlaw15]

Re: And suddenly there was a defence...

We often apply for set asides on default judgments, and we get them. 'Didn't receive the papers' and 'reasonable chance of success' usually works fine.

Yep, but these are valid claims, ie they're not vexatious. Some will just try to use the discretionary rules to abuse the system, is also my point. You simply cannot proceed if the papers were not submitted, this is the obvious type. Now reasonable chance of success is very subjective, ie in whose view is it reasonable, so the judge will do a balancing act. A reasonable prospect of success would also depend on the hearing type, ie possession of a property would have more priority.

[Openlaw15]

Re: And suddenly there was a defence...

Laws,rules ,protocols there may be but as we all know this can be flouted and ignored by judges and the legal system when arguments are won.
If this goes to a set aside hearing with a Barrister versus the OP there is every chance it can be twisted so the judge rules in favour of the defendant.

If all the rules and laws had always been abided by we would never had miscarriages of justice cases

Yes I know but what am saying is if you're going to quote cases' ratios ....stick to the binding point....not discuss the facts which then discredits your point in law. The only time precedent case facts are necessary is if it strengthens your case facts.

[wales01man]

Re: And suddenly there was a defence...

We often apply for set asides on default judgments, and we get them. 'Didn't receive the papers' and 'reasonable chance of success' usually works fine.

If Joe public is believed a Barrister has as good a chance of this defence in this case

[Amethyst]

Re: And suddenly there was a defence...

We often apply for set asides on default judgments, and we get them. 'Didn't receive the papers' and 'reasonable chance of success' usually works fine.

[wales01man]

Re: And suddenly there was a defence...

Laws,rules ,protocols there may be but as we all know this can be flouted and ignored by judges and the legal system when arguments are won.
If this goes to a set aside hearing with a Barrister versus the OP there is every chance it can be twisted so the judge rules in favour of the defendant.

If all the rules and laws had always been abided by we would never had miscarriages of justice cases

[Openlaw15]

Re: And suddenly there was a defence...

CPR is a set of procedural rules (derived from the Civil Procedure Act 1997) which the court must follow and applies to all cases which are issued through the courts. So in saying that the CPR are not law is not quite true and it is further emphasised in the overriding objective (r.1.2(f)) . Otherwise we can all ignore the CPR and not sign statements of truth as they are not lawfully binding

I would also disagree on the point about facts not being relevant as they can clearly be relevant and important when a judge makes their decision, the example case Samara v MBI & Partners, as I pointed out there was a 16 month delay which can be distinguished from the current facts where the delay in application is much much less. So to say that the ratio is the only important factor in a judgment is the wrong way to look at it - you need to look at the case as a whole and in some circumstances judges may also take into account obiter (opinion but not essential to the judgment).

They have put you on notice that they intend to make an application to set aside, the question is how long it will take them to do that. If it takes them another week I would say that they have made a prompt application but if it continues on for a further few weeks or gets into months then that is certainly something that can be argued in that they have failed to promptly bring an application. Usually in these circumstances common practice would attach a draft defence to the application to show they have a reasonable prospect of success however if they have no defence drafted this will certainly add to the delay and potentially weaken their chances of successful set aside.

When I studied constitutional law there were constitutional statutes, ordinary statutes, constitutional common law, ordinary common law, the royal prerogative (Queen's, Executive powers), constitutional conventions. Practice Direction and CPR relates to procedure, but the courts' duties under the separation of powers' doctrine is to interpret statute, whereas Parliament creates that statute (legislator) for the benefit of the electorate. Procedure simply fulfills the details like statute is the main authority but statutory instruments (SIs, ie Regulations) concern the details. You cannot argue Regulations in court because they're not Parliament Acts. As for a precedential ruling, the only binding part of a judgment is the ratio decidendi. "Ratio decidendi a phrase meaning "the reason" or "the rationale for the decision". The ratio decidendi is "the point in a case that determines the judgment" or "the principle that the case establishes". You can disagree all you want but law is law and your opinion is your opinion. We have ratios simply for consistency to create consistent common law. Judge can distinguish as can lawyers but the starting point is the ratio decidendi as pro rata the judgement's ruling which gives us common law.

[R0b]

Re: And suddenly there was a defence...

"Durrant v Chief Constable of Avon & Somerset Constabulary [2013] EWCA Civ 1624 when refusing to grant relief from a sanction for failing to serve witness statements in time (see especially paragraphs [40] –[56]). Similarly, in Thevarajah v Riordan [2014] EWCA Civ 14, the Court of Appeal considered that the delay in making the application for relief was an additional reason why it had to be rejected. It is very clear that in the new regime, the need for promptness has even greater significance than it had previously and that relief will be granted much more sparingly than hitherto."

These are the useful precedents from the Court of Appeal, which the High Court is subordinate to. The Court of Appeal precedents confirm that there must not be any delay. Civil Procedure Rules are not the law - the law is the higher courts (ie common law).

Practice Direction/ CPR are not law. The case precedents confirm that the PD/ CPR should be used appropriately as it's not fair to delay where there is no need to delay, on a narrow view. If there were 7 days to submit but there has been no submission in that period then that should be the end of the matter. Res judicata (already decided). Let the judge distinguish or your opponent argue the finer details, ie between your case and the precedent case facts.

NB: When reading a case to apply common law (case law) you're looking for the binding principle, ie stare decisis (binding precedent)/ ratio. The facts are not important just the ratio is. This is why those Court of Appeal cases were cited in the High Court case because these are the binding authorities. Do not do your opponent's work for him!

CPR is a set of procedural rules (derived from the Civil Procedure Act 1997) which the court must follow and applies to all cases which are issued through the courts. So in saying that the CPR are not law is not quite true and it is further emphasised in the overriding objective (r.1.2(f))

enforcing compliance with rules, practice directions and orders

. Otherwise we can all ignore the CPR and not sign statements of truth as they are not lawfully binding

I would also disagree on the point about facts not being relevant as they can clearly be relevant and important when a judge makes their decision, the example case Samara v MBI & Partners, as I pointed out there was a 16 month delay which can be distinguished from the current facts where the delay in application is much much less. So to say that the ratio is the only important factor in a judgment is the wrong way to look at it - you need to look at the case as a whole and in some circumstances judges may also take into account obiter (opinion but not essential to the judgment).

They have put you on notice that they intend to make an application to set aside, the question is how long it will take them to do that. If it takes them another week I would say that they have made a prompt application but if it continues on for a further few weeks or gets into months then that is certainly something that can be argued in that they have failed to promptly bring an application. Usually in these circumstances common practice would attach a draft defence to the application to show they have a reasonable prospect of success however if they have no defence drafted this will certainly add to the delay and potentially weaken their chances of successful set aside.

[heisenberg]

Re: And suddenly there was a defence...

Good stuff, was worth checking Well see what their application states as the reason for non response to the court papers and go from there in that case.

Thanks Amethyst. Will keep you posted.

- - - Updated - - -

Practice Direction/ CPR are not law. The case precedents confirm that the PD/ CPR should be used appropriately as it's not fair to delay where there is no need to delay, on a narrow view. If there were 7 days to submit but there has been no submission in that period then that should be the end of the matter. Res judicata (already decided). Let the judge distinguish or your opponent argue the finer details, ie between your case and the precedent case facts.

NB: When reading a case to apply common law (case law) you're looking for the binding principle, ie stare decisis (binding precedent)/ ratio. The facts are not important just the ratio is. This is why those Court of Appeal cases were cited in the High Court case because these are the binding authorities. Do not do your opponent's work for him!

Thanks Openlaw15. Duly noted. That seems like good case law you have cited.

- - - Updated - - -

It seems a real shame that cases valued at less than 10k can be sent the the fast track (due to complexity). I don't envisage that this claim will be but nothing is for certain in the world of litigation as we all know.

[Amethyst]

Re: And suddenly there was a defence...

Yep, I double checked that. They even sent me 'read receipts' to my e-mails.

The letter notifying the court of the Defendant's solicitor came from the Defendant's solicitor. They have only set out that they will apply for the default judgement to be set aside 'in due course' and as soon as 'practical'.

I think they have caused there own problems here by asserting they were not going to engage with my any further before I sent them a pre-action letter. I think they thought that they could adopt this approach to the Practice Direction too (and seemingly the court).

Good stuff, was worth checking Well see what their application states as the reason for non response to the court papers and go from there in that case.

[Openlaw15]

Re: And suddenly there was a defence...

Is this case law also applicable to a failing to comply with the Practice Direction enabling me to consider if I have a case and/or otherwise narrow the issues?

Practice Direction/ CPR are not law. The case precedents confirm that the PD/ CPR should be used appropriately as it's not fair to delay where there is no need to delay, on a narrow view. If there were 7 days to submit but there has been no submission in that period then that should be the end of the matter. Res judicata (already decided). Let the judge distinguish or your opponent argue the finer details, ie between your case and the precedent case facts.

NB: When reading a case to apply common law (case law) you're looking for the binding principle, ie stare decisis (binding precedent)/ ratio. The facts are not important just the ratio is. This is why those Court of Appeal cases were cited in the High Court case because these are the binding authorities. Do not do your opponent's work for him!

[heisenberg]

Re: And suddenly there was a defence...

If they failed to reply at all to any of your letters or emails it might be worth double checking the address used was correct. Did the letter you received notifying you about the set-aside application intention come from the defendant or his barrister/solicitors address?

Yep, I double checked that. They even sent me 'read receipts' to my e-mails.

The letter notifying the court of the Defendant's solicitor came from the Defendant's solicitor. They have only set out that they will apply for the default judgement to be set aside 'in due course' and as soon as 'practical'.

I think they have caused there own problems here by asserting they were not going to engage with my any further before I sent them a pre-action letter. I think they thought that they could adopt this approach to the Practice Direction too (and seemingly the court).

[Amethyst]

Re: And suddenly there was a defence...

If they failed to reply at all to any of your letters or emails it might be worth double checking the address used was correct. Did the letter you recieved notifying you about the set-aside application intention come from the defendant or his barrister/solicitors address?

[heisenberg]

Re: And suddenly there was a defence...

Yes, the Denton guidance should be followed but the point I was making when referring to Mitchell was that the delay in bringing an application was small, can give rise to grounds for setting aside if made promptly. The defendant in your case has made an application 7 days after default judgment and that will be taken into account when deciding whether to set aside.

Your argument is that they should not be afforded setting aside because they failed to engage in any way with yourself pre-action and once the claim issued which would be stage 3 of the test (all of the circumstances)

Yes, failing to engage at all pre-action would be the most serious failure however I imagine failing to comply with court deadlines, albeit by circa 3 weeks (ongoing), is also a consideration when considering relief as a whole.

I have still had no sight of a defence.

[heisenberg]

Re: And suddenly there was a defence...

"Durrant v Chief Constable of Avon & Somerset Constabulary [2013] EWCA Civ 1624 when refusing to grant relief from a sanction for failing to serve witness statements in time (see especially paragraphs [40] –[56]). Similarly, in Thevarajah v Riordan [2014] EWCA Civ 14, the Court of Appeal considered that the delay in making the application for relief was an additional reason why it had to be rejected. It is very clear that in the new regime, the need for promptness has even greater significance than it had previously and that relief will be granted much more sparingly than hitherto."

These are the useful precedents from the Court of Appeal, which the High Court is subordinate to. The Court of Appeal precedents confirm that there must not be any delay. Civil Procedure Rules are not the law - the law is the higher courts (ie common law).

Is this case law also applicable to a failing to comply with the Practice Direction enabling me to consider if I have a case and/or otherwise narrow the issues?

[R0b]

Re: And suddenly there was a defence...

Yes, the Denton guidance should be followed but the point I was making when referring to Mitchell was that the delay in bringing an application was small, can give rise to grounds for setting aside if made promptly. The defendant in your case has made an application 7 days after default judgment and that will be taken into account when deciding whether to set aside.

Your argument is that they should not be afforded setting aside because they failed to engage in any way with yourself pre-action and once the claim issued which would be stage 3 of the test (all of the circumstances)