And suddenly there was a defence...

[heisenberg]

Re: And suddenly there was a defence...

Are you calling it a day now?

I'm undecided. One thing that is certain is that I could do without the stress. out:

[heisenberg]

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.

I am seriously confused here. I thought relief from sanctions provisions under CPR 3.9 are also engaged in any application seeking to set aside any such default judgment. See http://blogs.lexisnexis.co.uk/dr/default-judgment-set-aside-applying-denton-relief-from-sanctions-obrien-v-goldsmith/

Have I been truly swindled here?

[heisenberg]

Re: And suddenly there was a defence...

I take it filing an appeal is one seriously costly exercise?

[Dookist]

Re: And suddenly there was a defence...

Justice. What Justice?! Dookist.

[heisenberg]

Re: And suddenly there was a defence...

Justice. What Justice?! Dookist.

That's for bloody sure.

[Amethyst]

Re: And suddenly there was a defence...

They have to show the court they have a reasonable prospect of success, now the default judgment has been set aside - the claim resets and they will be ordered to file a defence by a particular date - you should get a copy of the order in the post.

[Dookist]

Re: And suddenly there was a defence...

That's for bloody sure.

I was a LIP who was denied the right to a fair trial; a Judge refused to adjourn when the court provided the wrong kind of hearing loop. I told him I was awaiting hearing aids and couldn't participate without the loop… did he care? Not a jot… I had to withdraw halfway through the trial when I got confused and panicked under cross examination… He awarded the other side damages of £25k… they are now threatening to take my home. I had a cast iron case, too. My own fault, but even when I asked for the Judgement to be set aside when I found out there had been procedural errors which should have proven fatal to the other side, that judge refused to allow my appeal. One law for us and another for the rich. Dookist.

[heisenberg]

Re: And suddenly there was a defence...

They have to show the court they have a reasonable prospect of success, now the default judgment has been set aside - the claim resets and they will be ordered to file a defence by a particular date - you should get a copy of the order in the post.

Hi Amethyst,

It seems the Judge has just ordered the exchange of skeleton arguments and not a full defence. Arguably, this does not place me on an equal footing.

The case of Albesher v Ryan [2016] EWHC 541 emphasises the importance of having a draft defence available when applying to set aside a judgment. It seems the Judge was more than happy to skip over this to accommodate the other side.

[heisenberg]

Re: And suddenly there was a defence...

I was a LIP who was denied the right to a fair trial; a Judge refused to adjourn when the court provided the wrong kind of hearing loop. I told him I was awaiting hearing aids and couldn't participate without the loop… did he care? Not a jot… I had to withdraw halfway through the trial when I got confused and panicked under cross examination… He awarded the other side damages of £25k… they are now threatening to take my home. I had a cast iron case, too. My own fault, but even when I asked for the Judgement to be set aside when I found out there had been procedural errors which should have proven fatal to the other side, that judge refused to allow my appeal. One law for us and another for the rich. Dookist.

Hi Dookist,

Indeed, it seems Judges bend over backwards for the represented party. I think this is due to the fact that a LiP is perceived to be less able to present a successful appeal and a barrister or firm (or well off individual or organisation) is perceived to be more likely able to present a successful appeal.

When a Judge has too many decisions overturned they end up getting the sack. So, there is bias against the disadvantaged party (conscious and/or subconscious).

Did you consider your position in claiming a failure to make reasonable adjustments against the court service? You would not be the first.

[heisenberg]

Re: And suddenly there was a defence...

The other side sent me a letter today accusing me of being 'vexatious' and still threatening to apply for costs if I do not discontinue the claim in a week. Still no defence or skeleton argument in sight - funny that.

I have to say that it would not surprise me if the Judge bends over backwards for them.

[Dookist]

Re: And suddenly there was a defence...

Hi Dookist,

Indeed, it seems Judges bend over backwards for the represented party. I think this is due to the fact that a LiP is perceived to be less able to present a successful appeal and a barrister or firm (or well off individual or organisation) is perceived to be more likely able to present a successful appeal.

When a Judge has too many decisions overturned they end up getting the sack. So, there is bias against the disadvantaged party (conscious and/or subconscious).

Did you consider your position in claiming a failure to make reasonable adjustments against the court service? You would not be the first.

Hi Heisenberg and thank you for the post...


This was all back in 2013 and we have moved on since then…I witherw from the trial and the other side 'won' by default and I was Ordered to pay their costs, plus a 100% success fee. (This despite no evidence before the judge or myself that a CFA had been entered into).

The only asset I have is my home, so I made the decision to sell, pay the other side and get on with my life.

Then something happened in the meantime which provided me with an opportunity to enter a counterclaim along with my defence… however, I wasn't expecting the Court to mess up so spectacularly.


The other side had an interim Charging Order by now and I provided my defence/counterclaim in good time for the hearing for the CO to be made final.


I waited and waited to hear something from either the Court or the other side's lawyers, whom I had requested liase re: the bundle documents and eventually, it got to a week before the hearing and the other side sent a letter saying they would not be agreeing any documents as they had information from the Court staff that I had not paid the requisite Court fee, therefore my defence and counterclaim had not been issued by the Court and so should be dismissed.


Strange how the other side had this (mis) information, yet nobody at the Court had bothered to tell ME… there has been a whole catalogue of mistakes by the Court… always in favour of the represented side, of course. Just out and out bias.


To cut a long story short, the Court rubber stamped the Charging Order, despite being informed that there had been a mistake.


It was only when I told the Court I was going to make a formal complaint to the MoJ about my treatment that it suddenly discovered that I HAD paid the fee after all and that it had somehow gone missing… (I sometimes wonder if there is an insider acting on behalf of the other side, a very wealthy and influential person who has told me to my face that he intends to bankrupt me!)


Anyway… following this admission and apology, I have now made an application to set aside the CO due to the Court's maladministration in not issuing my defence/counterclaim, etc.. this was back in December… when I didn't hear from the court after a couple of months, I contacted them by email and they said the file was still with the Judge. Then another couple of weeks went by and another email from the court (this time marked "Without Prejudice") told me they had made a mistake and that the Judge's directions should have been sent to me in January! I eventually got the directions THREE months late… (You couldn't make it up…)


The hearing is in a couple of months. The other side has been given directions to provide a skeleton and advised, but not ordered to provide a bundle. I have been directed to do nothing, but I am wondering whether to send a bundle anyway… it just doesn't seem right to me to turn up at Court empty handed. (Although they DO have this all on file, unless they have managed to lose it yet again).


Sorry to gatecrash this thread… but it may help others to be aware that the courts DO mess up and that their mistakes can have serious repercussions…People stand to lose their homes... I don't suppose this will be the last injustice I suffer at their hands, but after all these years I'm just sick of the whole thing and realise I should never have tried to go it alone.


It strikes me that there is no justice available to those without the means to pay.


Dookist.

[heisenberg]

Re: And suddenly there was a defence...

Hi Heisenberg and thank you for the post...


This was all back in 2013 and we have moved on since then…I witherw from the trial and the other side 'won' by default and I was Ordered to pay their costs, plus a 100% success fee. (This despite no evidence before the judge or myself that a CFA had been entered into).

The only asset I have is my home, so I made the decision to sell, pay the other side and get on with my life.

Then something happened in the meantime which provided me with an opportunity to enter a counterclaim along with my defence… however, I wasn't expecting the Court to mess up so spectacularly.


The other side had an interim Charging Order by now and I provided my defence/counterclaim in good time for the hearing for the CO to be made final.


I waited and waited to hear something from either the Court or the other side's lawyers, whom I had requested liase re: the bundle documents and eventually, it got to a week before the hearing and the other side sent a letter saying they would not be agreeing any documents as they had information from the Court staff that I had not paid the requisite Court fee, therefore my defence and counterclaim had not been issued by the Court and so should be dismissed.


Strange how the other side had this (mis) information, yet nobody at the Court had bothered to tell ME… there has been a whole catalogue of mistakes by the Court… always in favour of the represented side, of course. Just out and out bias.


To cut a long story short, the Court rubber stamped the Charging Order, despite being informed that there had been a mistake.


It was only when I told the Court I was going to make a formal complaint to the MoJ about my treatment that it suddenly discovered that I HAD paid the fee after all and that it had somehow gone missing… (I sometimes wonder if there is an insider acting on behalf of the other side, a very wealthy and influential person who has told me to my face that he intends to bankrupt me!)


Anyway… following this admission and apology, I have now made an application to set aside the CO due to the Court's maladministration in not issuing my defence/counterclaim, etc.. this was back in December… when I didn't hear from the court after a couple of months, I contacted them by email and they said the file was still with the Judge. Then another couple of weeks went by and another email from the court (this time marked "Without Prejudice") told me they had made a mistake and that the Judge's directions should have been sent to me in January! I eventually got the directions THREE months late… (You couldn't make it up…)


The hearing is in a couple of months. The other side has been given directions to provide a skeleton and advised, but not ordered to provide a bundle. I have been directed to do nothing, but I am wondering whether to send a bundle anyway… it just doesn't seem right to me to turn up at Court empty handed. (Although they DO have this all on file, unless they have managed to lose it yet again).


Sorry to gatecrash this thread… but it may help others to be aware that the courts DO mess up and that their mistakes can have serious repercussions…People stand to lose their homes... I don't suppose this will be the last injustice I suffer at their hands, but after all these years I'm just sick of the whole thing and realise I should never have tried to go it alone.


It strikes me that there is no justice available to those without the means to pay.


Dookist.

Bloody hell! That sounds dreadful! It seems the court made a royal mess of this (which could well have been intentional). I have to say stories such as this do not surprise me as I am also no stranger to litigation.

My current legal aid solicitor often mentions he is of the view that the whole system is unfair or unjust. It seems the average (ethical) legal professional feels the same:

http://www.hja.net/press-releases/da...ustice-system/

The irony is that if one was well off one would be less inclined to pursue various claims in the first place particularly as legal costs fast outweigh the value of any claim.

Did you eventually raise a complaint to the MoJ?

[Openlaw15]

Re: And suddenly there was a defence...

I was a LIP who was denied the right to a fair trial; a Judge refused to adjourn when the court provided the wrong kind of hearing loop. I told him I was awaiting hearing aids and couldn't participate without the loop… did he care? Not a jot… I had to withdraw halfway through the trial when I got confused and panicked under cross examination… He awarded the other side damages of £25k… they are now threatening to take my home. I had a cast iron case, too. My own fault, but even when I asked for the Judgement to be set aside when I found out there had been procedural errors which should have proven fatal to the other side, that judge refused to allow my appeal. One law for us and another for the rich. Dookist.

Up to 2011, there was only a 0.5% award of costs against the employee. i don't know the stats up to now. The tribunal has a duty to make reasonable adjustments for disabled people. Did you appeal to EAT? They could get a charging order on your home but it's very rare that a sale can be forced. You have your rights to property, 25k is at least an adequate amount of security to protect the costs' interest.

[Dookist]

Re: And suddenly there was a defence...

Bloody hell! That sounds dreadful! It seems the court made a royal mess of this (which could well have been intentional). I have to say stories such as this do not surprise me as I am also no stranger to litigation.

My current legal aid solicitor often mentions he is of the view that the whole system is unfair or unjust. It seems the average (ethical) legal professional feels the same:

http://www.hja.net/press-releases/da...ustice-system/

The irony is that if one was well off one would be less inclined to pursue various claims in the first place particularly as legal costs fast outweigh the value of any claim.

Did you eventually raise a complaint to the MoJ?

I haven't even scratched the surface! So much went wrong due to the Court's maladministration and failure to follow CPR… The complaint to MoJ is pending… I really need to get the set aside sorted first. I have no idea what the other side will provide in defence of their wrong doing… other than it will be a pack of lies. Dookist.

[heisenberg]

Re: And suddenly there was a defence...

Dookist, was this a case issued at a Tribunal or a County Court?

Just seen your post - seems it was a County Court case.