Being pursued for cost of replacement fence

[gazfocus]

Ok so could really do with some advice.

As I stated previously, a hearing date had been set for this court claim and for some reason I have it in my phone as this coming Monday. I have just received a letter from the court advising that my defence was struck out because I didn’t attend the hearing. The letter is dated 1st April but I’ve only received it today and it gives 14 days for payment.

I have turned the house upside down and cannot find the letter that had the court date on it.

The court fave awarded my lovely neighbour with the cost he was requesting, plus interest, plus £90 court fees.

Is there anything I can do now other than pay this scumbag? I’m peeved with myself but also peeved it’s taken two weeks for this letter to arrive seriously limiting my timescale to do anything (if anything is possible).

Any advice would be hugely appreciated.

[2222]

Oh dear, that's a shame. I don't have any experience of this, but I very much doubt that you can appeal if you simply got the date wrong without good reason. You could ask the court for a copy of the letter giving you the trial date, but it's unlikely to show an incorrect date.

[Amethyst]

Oh no ! Does the letter say the hearing was on 1st April ? That surely would have stuck in your mind being April fools day I'm sure ... otherwise it's into March for the hearing .... this coming Monday is 22nd April ... that's a big difference and I wonder if it's worth giving court a call to find out if the date had been changed without you being notified somehow. I guess it could be the hearing fee was due by 22nd March and hearing 1st April and you mixed them up - but think I'd want to know how I'd managed to get it wrong before giving up xxx

As you didn't attend it would be an application to set aside on grounds if a very good reason for non attendance ( which sadly you don't have )

Bugger

[R0b]

very good reason for non attendance

Sorry Ame, just to be clear the CPR does say you need to have good reason for non-attendance, not very good. Two avenues here will be to apply to have the decision set aside under CPR 39.3 and one of the criteria already mentioned is that you need to have good reason for non-attendance. The other two is that the application needs to be made promptly (and that does in fact mean prompt) and the final condition being whether there is a reasonable prospect of success.

CPR 39.3 is broadly similar to the set aside provisions under CPR 13. You need to get onto the court and establish what Ame has suggested, go back through your paperwork and make sure you haven't made a mistake with the dates, then you can establish your next course of action. Even if the non-attendance was your fault, there is still a chance you might be able to have the decision set aside and that's just simply by being honest. Clearly there was an intention to attend trial and you can sufficiently point to the fact that your defence, witness statement and correspondence leading up to 1 April were all indicators that you were taking this claim seriously.

Even if you can't get it set aside under CPR 39.3 then that does not preclude you from appealing the judgment, though ordinarily you ought to try under CPR 39.3 before attempting to bring an appeal.

[Amethyst]

Okay - but 'good' needs to be better than forgetting ....

[R0b]

I believe there are one or two cases where the judgment has been set aside despite the reasons for not attended being described at best as spurious but nonetheless set aside due to having a reasonable prospect of successfully defending the claim.

Like I said, CPR 39.3 is broadly similar to CPR 13 so it's still worth a punt if the other conditions are satisfied and I also I believe the interpretation of "good reason" should also take into account the overriding objective. So really, the judge has to determine if the reason is good enough based on the circumstances.

I do agree however, it is imperative to ensure you have all the dates in hand and the starting point is unlikely that a genuine forgetfulness of the hearing date is likely to be satisfactory.

Edit: just reviewing the White Book, and it says:

The court must be satisfied that the reason for not attending is genuine and honest. However, that in itself is not sufficient to make a "good" reason. There are no fixed reasons that are good or bad and an over-analytical approach is inconsistent with the overriding objective of the CPR

...

If a defendant says that they were ignorant of a hearing, it is normally necessary to ask why that was so. The mere assertion that a party was unaware of the hearing date is unlikely to be sufficient to constitute a good reason. It is usually relevant to inquire whether the party was aware that proceedings had been issued and served.

...

The court has to consider each case in light of all the relevant factors for non-attendance and, looking at the matter in the round, determine whether the reason is sufficient for the court to exercise its discretion in favour of the defaulting party

[2222]

Really, the OP has a choice:-

Pay up, and do his best to forget about it, or
Find the letter informing him of the trial date, but he's already said he's turned the house upside down looking for it. If it can't be found , he can ask the court office for a copy. His best bet might be to go round to the court.

what's the fee for setting aside ? A couple of hundred? Surely, that's a poor bet for such a small case, unless there's obviously a good reason for non attendance, eg because he was informed of the wrong date. Hence, the letter is essential.

[gazfocus]

Thanks guys for your posts. It sticks in my throat and I did so with gritted teeth but I opted to just pay the judgement and let it go. At the end of the day, it was my error in missing the court date, and I don’t want it on my credit file for 6 years so seemed like the most sensible option.

I also offered my neighbour an olive an olive branch and told him I bear no ill feeling towards him and that I’d like to maintain good relations so we will see how that plays out but for now, this is done with.

I sincerely appreciate all the advice given on here and am so annoyed with myself that I slipped at the final hurdle but life goes on and I can stop getting stressed over this now. You guys are awesome!

[Amethyst]

I think you have the best attitude towards this - morally I reckon you come out on top - you're right sometimes it's better just to let it go - big picture and all that - just make sure court are informed you have paid the judgment in full so it doesn't get entered on the credit file - then you can put it behind you and hopefully your neighbour does the same xxx