And suddenly there was a defence...

[heisenberg]

Dear all,

I mentioned I had a court case which I thought was on its way to a conclusion.

The Defendant failed to respond to my pre-action letter, follow up e-mails and even failed to respond to the claim with the required time limits (2 weeks).

I then apply for a default judgement and then about a week later I get a letter through the post advising that the Defendant has instructed a barrister and will be applying for the judgement to be set aside.

Any input greatly appreciated as I am concerned that:

• The Judge grants them their application to set aside the judgement.
• The case gets moved up to the fast track.
• I decide to withdraw and am left with a Costs Order.

Many thanks.

[wales01man]

Re: And suddenly there was a defence...

To be honest what did you expect? If they can win and get costs against you they will in the same way any defendant can in Court.
You really need to get some advice about this and even a Solicitor to fight for you before it all comes down on you.

[heisenberg]

Re: And suddenly there was a defence...

To be honest what did you expect? If they can win and get costs against you they will in the same way any defendant can in Court.
You really need to get some advice about this and even a Solicitor to fight for you before it all comes down on you.

I am in the process of doing that. I did seek initial advise but I couldn't fully understand it and it also appears that firm failed to make reasonable adjustments for me. I have another firm who is processing a potential claim against them.

[R0b]

Re: And suddenly there was a defence...

if the claim was in allocated in small claims what makes you think it would be allocated to fast track?

If you are worried now, you are better off writing to them and stating that after seeking legal advice you are will to consent to the setting aside and withdrawing your claim now before they start incurring legal fees with both parties bearing their own costs. The judge is likely to set aside where there is a arguable defence and will see it as a waste of court time if you contest it.

Otherwise contest it and take it to court and seek legal help if you need be.

[heisenberg]

Re: And suddenly there was a defence...

See Samara v MBI & Partners UK Ltd and others [2014] EWHC 563 (QB), [2014] All ER (D) 48 (Mar).

Seems if they failed to comply with the Practice Direction and court directions they would need a damn good excuse to be exempt/excused from sanctions. They have disproportionally and adversely affected my position in regards to considering my legal position and drafting a claim.

[heisenberg]

Re: And suddenly there was a defence...

if the claim was in allocated in small claims what makes you think it would be allocated to fast track?

If you are worried now, you are better off writing to them and stating that after seeking legal advice you are will to consent to the setting aside and withdrawing your claim now before they start incurring legal fees with both parties bearing their own costs. The judge is likely to set aside where there is a arguable defence and will see it as a waste of court time if you contest it.

Otherwise contest it and take it to court and seek legal help if you need be.

I'm not sure it has been assigned to a specific track? It makes no mention of that in the correspondence from the court?

Bit unfair and disproportionate that the other side suddenly chooses (at the very last minute) to engage with both me and the court?

[R0b]

Re: And suddenly there was a defence...

The case you refer to above had a long delay between judgment and an application to set aside about 16 months. Here there is not much in it and if you look at CPR 13.3 sets out when a court may set aside, one of which being a real prospect of successfully defending the case.

Yes, you could use that case and argue that despite numerous letters and the issuing of the claim, the defendant failed to acknowledge the claim at all and failed to send an Acknowledgement to the court but it would be up to the judge to weigh up and is at their discretion.

Relief could be granted where the delay was trivial -> Mitchell v News Group Newspapers 2013

application set aside on grounds of real prospects of successfully defending despite failure to file defence -> O'brien v Goldsmith 2015

Also take a look at this https://civillitigationbrief.wordpre...ropriate-test/

lots of cases on the matter, but the court should also take into account the overriding objective and if the set aside is refused they may even appeal it which of course if further costs.

So if you want to contest it then do so, as for allocation if it was not allocated was it likely to be allocated in the small claims?

[mystery1]

Re: And suddenly there was a defence...

Be strange if ever a case was allocated when default judgement was obtained.

M1

[heisenberg]

Re: And suddenly there was a defence...

The case you refer to above had a long delay between judgment and an application to set aside about 16 months. Here there is not much in it and if you look at CPR 13.3 sets out when a court may set aside, one of which being a real prospect of successfully defending the case.

Yes, you could use that case and argue that despite numerous letters and the issuing of the claim, the defendant failed to acknowledge the claim at all and failed to send an Acknowledgement to the court but it would be up to the judge to weigh up and is at their discretion.

Relief could be granted where the delay was trivial -> Mitchell v News Group Newspapers 2013

application set aside on grounds of real prospects of successfully defending despite failure to file defence -> O'brien v Goldsmith 2015

Also take a look at this https://civillitigationbrief.wordpre...ropriate-test/

lots of cases on the matter, but the court should also take into account the overriding objective and if the set aside is refused they may even appeal it which of course if further costs.

So if you want to contest it then do so, as for allocation if it was not allocated was it likely to be allocated in the small claims?

Thanks Rob.

I don't believe it is complex but it is a discrimination claim with various contraventions proposed (there is significant overlap).

It is an 8 page Particulars of Claim mostly because there is a bit of background. Is it worth uploading (redacted) for a quick opinion?

[R0b]

Re: And suddenly there was a defence...

Although I did very well and got a 1st on my employment module at uni, I've not really kept up in the area of discrimination so probably not be the best person to review.

Did you say you sought advice on this and the outcome was advising you to withdraw?

[heisenberg]

Re: And suddenly there was a defence...

Although I did very well and got a 1st on my employment module at uni, I've not really kept up in the area of discrimination so probably not be the best person to review.

Did you say you sought advice on this and the outcome was advising you to withdraw?

I did get some advice but I did not fully understand it. The firm made a series of assumptions in regards to my 'disability'. They also appear to have, on the face of it, failed to make reasonable adjustments for me (which is quite ironic). Another legal aid firm is engaging with them as a result.

It appears, looking at the guidance and case law, that if there is a failing to comply with direction(s) due to inefficiently then a Judge is able to exercise his/her discretion and refuse to set aside the judgement.

I would be very surprised if the other side can successfully argue that it ignored all correspondence up to now for reasons other than blatant disregard and inefficiently.

[heisenberg]

Re: And suddenly there was a defence...

http://www.ealaw.co.uk/articles/cpr-...e-new-guidance:

The Three Stage Test

Lord Dyson MR and Vos LJ, giving a joint judgment, stated at the outset “that the judgment in Mitchell has been misunderstood and is being misapplied by some courts.” The “Denton guidance” sets out a clear three stage test that the lower Courts should now apply:

Stage 1 The Court should “identify and assess the seriousness of the failure to comply with any rule, practice direction or court order which engages rule 3.9(1)”;

Stage 2 The Court should consider why the default occurred;

Stage 3 The Court should “evaluate all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”.

Factors (a) and (b) are those set out in CPR 3.9, specifying as considerations in applications for relief from sanction, the need: (a) for litigation to be conducted efficiently and at proportionate cost; and (b) to enforce compliance with rules, practice directions and orders.

[Openlaw15]

Re: And suddenly there was a defence...

The case you refer to above had a long delay between judgment and an application to set aside about 16 months. Here there is not much in it and if you look at CPR 13.3 sets out when a court may set aside, one of which being a real prospect of successfully defending the case.

Yes, you could use that case and argue that despite numerous letters and the issuing of the claim, the defendant failed to acknowledge the claim at all and failed to send an Acknowledgement to the court but it would be up to the judge to weigh up and is at their discretion.

Relief could be granted where the delay was trivial -> Mitchell v News Group Newspapers 2013

application set aside on grounds of real prospects of successfully defending despite failure to file defence -> O'brien v Goldsmith 2015

Also take a look at this https://civillitigationbrief.wordpre...ropriate-test/

lots of cases on the matter, but the court should also take into account the overriding objective and if the set aside is refused they may even appeal it which of course if further costs.

So if you want to contest it then do so, as for allocation if it was not allocated was it likely to be allocated in the small claims?

"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).

[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)

[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?