And suddenly there was a defence...

[Openlaw15]

Re: And suddenly there was a defence...

The Civil Procedure Act is an Act which governs the procedures of the courts and applies to all cases before them. An SI enables the government or authority to bring in or alter provisions of the Act without the need to create a new Act each time. For example, The Carriage of Dangerous Goods Regulations 2009 is an SI which gives powers of enforcement to the DfT and HSE to prosecute or fine relating to the transport of dangerous goods. You honestly cannot say that if the HSE was to rock up to court and state those regulations the court would ignore them because they are an SI and not an Act?! SI's form part of the Act.

I do not disagree with your ratio argument however your statement that we should ignore the facts of the case is a poor one. Cases can be distinguished from the facts of the case and usually judgments will arise from those facts brought before the court. This is exactly why there are conflicting judgments in all courts as although there may be similar issues, the outcomes may be different based on the facts of the case.

Setting aside on a reasonable chance of successfully defending IMO is quite a low threshold, the defendant need only show that they have an arguable defence which has also been stated by plenty judges - it does not mean really good or high chance but simply that there is an arguable one. It does not depend on the type of hearing either it depends on the defence put forward by the defendant, if there does not seem to be any merits to the case then the judge will not deem a reasonable chance of success.

Anyway, think we are getting a bit off track, CPR 13 is at the discretion of the judge and take into account Denton guidance and CPR 3.9 also. It is very difficult to overturn judgments where discretion has been applied and indeed the appeal courts will not interfere with that discretion.

All that can be done now is wait for the application to be put in and contest it or set aside.

Rob, think about this statement:

"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."

[Openlaw15]

Re: And suddenly there was a defence...

The Civil Procedure Act is an Act which governs the procedures of the courts and applies to all cases before them. An SI enables the government or authority to bring in or alter provisions of the Act without the need to create a new Act each time. For example, The Carriage of Dangerous Goods Regulations 2009 is an SI which gives powers of enforcement to the DfT and HSE to prosecute or fine relating to the transport of dangerous goods. You honestly cannot say that if the HSE was to rock up to court and state those regulations the court would ignore them because they are an SI and not an Act?! SI's form part of the Act.

I do not disagree with your ratio argument however your statement that we should ignore the facts of the case is a poor one. Cases can be distinguished from the facts of the case and usually judgments will arise from those facts brought before the court. This is exactly why there are conflicting judgments in all courts as although there may be similar issues, the outcomes may be different based on the facts of the case.

Setting aside on a reasonable chance of successfully defending IMO is quite a low threshold, the defendant need only show that they have an arguable defence which has also been stated by plenty judges - it does not mean really good or high chance but simply that there is an arguable one. It does not depend on the type of hearing either it depends on the defence put forward by the defendant, if there does not seem to be any merits to the case then the judge will not deem a reasonable chance of success.

Anyway, think we are getting a bit off track, CPR 13 is at the discretion of the judge and take into account Denton guidance and CPR 3.9 also. It is very difficult to overturn judgments where discretion has been applied and indeed the appeal courts will not interfere with that discretion.

All that can be done now is wait for the application to be put in and contest it or set aside.

An appeal court such as the Court of Appeal in terms of the UK Court's system's hierarchy views a County Court as an 'inferior' court simply because it has no binding powers. It is only binding as far as it bind the parties to its decision that is without those same appealing to the higher courts based on a point of law or fact, potentially.

- - - Updated - - -

Was it Mr Bumble who said (The Law is an Ass0 ?

How right he was

Of course it is, is why you have to use/ manipulate law to your best advantage.

[Openlaw15]

Re: And suddenly there was a defence...

The Civil Procedure Act is an Act which governs the procedures of the courts and applies to all cases before them. An SI enables the government or authority to bring in or alter provisions of the Act without the need to create a new Act each time. For example, The Carriage of Dangerous Goods Regulations 2009 is an SI which gives powers of enforcement to the DfT and HSE to prosecute or fine relating to the transport of dangerous goods. You honestly cannot say that if the HSE was to rock up to court and state those regulations the court would ignore them because they are an SI and not an Act?! SI's form part of the Act.

I do not disagree with your ratio argument however your statement that we should ignore the facts of the case is a poor one. Cases can be distinguished from the facts of the case and usually judgments will arise from those facts brought before the court. This is exactly why there are conflicting judgments in all courts as although there may be similar issues, the outcomes may be different based on the facts of the case.

Setting aside on a reasonable chance of successfully defending IMO is quite a low threshold, the defendant need only show that they have an arguable defence which has also been stated by plenty judges - it does not mean really good or high chance but simply that there is an arguable one. It does not depend on the type of hearing either it depends on the defence put forward by the defendant, if there does not seem to be any merits to the case then the judge will not deem a reasonable chance of success.

Anyway, think we are getting a bit off track, CPR 13 is at the discretion of the judge and take into account Denton guidance and CPR 3.9 also. It is very difficult to overturn judgments where discretion has been applied and indeed the appeal courts will not interfere with that discretion.

All that can be done now is wait for the application to be put in and contest it or set aside.

They are useful to facts but they're not the law. Regs are not the law - they're merely secondary legislation. It will be the Health and safety Act and common law deriving from that Act which is authorative legal power. Regs have legal power of course they do but they're not what the court bases its decisions on. You will never hear a barrister argue a Regulation before a judge but you may hear him obiter mention it along the way. DWP can use Regs in tribunals because tribunals are informal quasi legal systems but if DWP were to cite Regs in the courts per se - the judge will stop that as it would be abusing the separation of powers' doctrine. These institutions must be independent from one another, ie the Executive (includes DWP), and the Courts which are forms of government.

[heisenberg]

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.

I think this case is not that simple though. There was no absolutely no engagement by the other side pre-action notwithstanding various follow-up e-mails. We all know that the purpose of the pre-action protocol is to try and resolve the matter or otherwise enable the parties to understand and narrow the issues without the need to involve the court.

Presumably they also need to satisfy the burden of proof that the papers were allegedly not received? I am not sure how they could prove that.

[Openlaw15]

Re: And suddenly there was a defence...

The Civil Procedure Act is an Act which governs the procedures of the courts and applies to all cases before them. An SI enables the government or authority to bring in or alter provisions of the Act without the need to create a new Act each time. For example, The Carriage of Dangerous Goods Regulations 2009 is an SI which gives powers of enforcement to the DfT and HSE to prosecute or fine relating to the transport of dangerous goods. You honestly cannot say that if the HSE was to rock up to court and state those regulations the court would ignore them because they are an SI and not an Act?! SI's form part of the Act.

"I do not disagree with your ratio argument however your statement that we should ignore the facts of the case is a poor one. Cases can be distinguished from the facts of the case and usually judgments will arise from those facts brought before the court. This is exactly why there are conflicting judgments in all courts as although there may be similar issues, the outcomes may be different based on the facts of the case."

The judge has the power to distinguish between the cases on a similar point of law (the ratio), even if the judge were influenced by a barrister's argument.

"Setting aside on a reasonable chance of successfully defending IMO is quite a low threshold, the defendant need only show that they have an arguable defence which has also been stated by plenty judges - it does not mean really good or high chance but simply that there is an arguable one. It does not depend on the type of hearing either it depends on the defence put forward by the defendant, if there does not seem to be any merits to the case then the judge will not deem a reasonable chance of success."

The term is reasonable prospect of success - reasonable is legal term and not to be confused with the ordinary every-day term: Interpretation Act

Anyway, think we are getting a bit off track, CPR 13 is at the discretion of the judge and take into account Denton guidance and CPR 3.9 also. It is very difficult to overturn judgments where discretion has been applied and indeed the appeal courts will not interfere with that discretion.

All that can be done now is wait for the application to be put in and contest it or set aside.

Yes, indeed.

[heisenberg]

Re: And suddenly there was a defence...

Was it Mr Bumble who said (The Law is an Ass)?

How right he was

I totally agree with that wise chap. I would extend that to access to justice is an ass too.

[wales01man]

Re: And suddenly there was a defence...

I totally agree with that wise chap. I would extend that to access to justice is an ass too.

Its proven a lot that justice is not for us peasants money talks money wins and money rules

[heisenberg]

Re: And suddenly there was a defence...

Its proven a lot that justice is not for us peasants money talks money wins and money rules

Agreed.

[Openlaw15]

Re: And suddenly there was a defence...

The Civil Procedure Act is an Act which governs the procedures of the courts and applies to all cases before them.


"An SI enables the government or authority to bring in or alter provisions of the Act without the need to create a new Act each time."

I studied the English legal system. No, a section of law gives powers such as to the secretary of state (government, ie Executive) to make Regulations which complies with that section. A judge otherwise can simply strike out Regulations if its powers in effect were ultra vires that of Parliament's own Acts in the UK's Constitution, contrasted with the US Constitution where its Supreme Court can strike out primary legislation (statute): Marbury v Madison (1806, USA) 1 cranch 137. So, even the secretary of state (Gov. power) in England/ Wales by his SI (Regulation) does not have "authority to bring in or alter provisions of the Act" unless that section gives him power to do so.

"For example, The Carriage of Dangerous Goods Regulations 2009 is an SI which gives powers of enforcement to the DfT and HSE to prosecute or fine relating to the transport of dangerous goods. You honestly cannot say that if the HSE was to rock up to court and state those regulations the court would ignore them because they are an SI and not an Act?! SI's form part of the Act."

Ergo, the Act's section will grant the relevant authority that power and no more.

I do not disagree with your ratio argument however your statement that we should ignore the facts of the case is a poor one. Cases can be distinguished from the facts of the case and usually judgments will arise from those facts brought before the court. This is exactly why there are conflicting judgments in all courts as although there may be similar issues, the outcomes may be different based on the facts of the case.

Setting aside on a reasonable chance of successfully defending IMO is quite a low threshold, the defendant need only show that they have an arguable defence which has also been stated by plenty judges - it does not mean really good or high chance but simply that there is an arguable one. It does not depend on the type of hearing either it depends on the defence put forward by the defendant, if there does not seem to be any merits to the case then the judge will not deem a reasonable chance of success.

Anyway, think we are getting a bit off track, CPR 13 is at the discretion of the judge and take into account Denton guidance and CPR 3.9 also. It is very difficult to overturn judgments where discretion has been applied and indeed the appeal courts will not interfere with that discretion.

All that can be done now is wait for the application to be put in and contest it or set aside.

Yes, indeed.

[Openlaw15]

Re: And suddenly there was a defence...

Its proven a lot that justice is not for us peasants money talks money wins and money rules

This is why we have what the Americans call 'pro se litigant', or what the English call, Litigant in Person. Yes it's harder but you save money!

[R0b]

Re: And suddenly there was a defence...

Yes, indeed.

Let's just agree to disagree on the arguable points.

[Openlaw15]

Re: And suddenly there was a defence...

Let's just agree to disagree on the arguable points.

I would agree to disagree but what I have stated is the law. I think though we have now exhaust this topic.

[heisenberg]

Re: And suddenly there was a defence...

Update

The case has been listed for a interlocutory hearing towards the end of March.
.
It seems the court has taken little notice of the other side's recent e-mail stating:

"We would be grateful if the court could liaise with us before listing/making further arrangements in order that we can take instructions in good time."

I guess this makes things slightly more difficult in respect to any application to set aside the judgement?

Still no sign of any defence or application to set aside the judgement.

[R0b]

Re: And suddenly there was a defence...

Have they sent you a copy of any application to the court? If summary judgment was given and now an interlocutory hearing they must have made some kind of application. If not worth finding out and point out to them that you never received any application notice.

[heisenberg]

Re: And suddenly there was a defence...

Have they sent you a copy of any application to the court? If summary judgment was given and now an interlocutory hearing they must have made some kind of application. If not worth finding out and point out to them that you never received any application notice.

I thought the interlocutory hearing was to ascertain the amount of compensation?