Judgment set aside

[Kayla]

hi can anyone help please. I am the claimant and attended a hearing yesterday for the defendant to set aside the judgment against her. She failed to file her DQ’s in time, general sanctions order was made, defence was then struck out and I was awarded judgment on 3rd may this year. I got all the way to paying high court enforcement officers to get involved and they couldn’t do anything as there was a stay of execution in place.
anyway at the hearing yesterday the DJ set the judgment aside, he said that he believed she sent in her DQ’s and blamed the Royal Mail! He believed the defendants lies and set aside. I took evidence with me and he didn’t want to see any of it.The case is now going to trial. My question really is can I appeal the DJ decision? As I understand it the time scales are in place for a reason, I filed all DQ’s in time and I won judgment, she has got away with this after me paying over £400 to get the money from her.
im worried about paying more money to take it to trial and would also like to know if I can stop all this at any time before it goes to trial (just so I can make a decision)

thanks in advance
kayla

[Amethyst]

The money you have paid out for enforcement can be added to the final judgment should you go on to succeed.

Her defence was only struck out due to the Directions Questionnaire not being filed. Sadly, we have seen this happen a fair bit lately, I think the Judge is generous blaming Royal Mail as mostly it seems to be the court losing documents that's causing a problem.

The claim will proceed on her defence as if the DQ's had been filed. Of course no one at the court has yet actually looked at the claim, other than to decide a track and to send out the DQ's so the default judgment isn't any indication of the merit of the claim ( or the defence ).

Once the case has been allocated, if small claims, there will be opportunity to mediate - and possibly agree settlement to prevent it going to trial, but that really depends on how strong your claim is vs her defence, and of course there are negotiation and settlement opportunites throughout.

Do you want to go through the claim and defence a little bit so we know what the case is about ?

[Kayla]

Thanks for this, I’m still confused as to how he can set it aside if she didn’t get documents back in allocated time.
the particulars of the claim are:
while driving along a 60mph road at 29mph the defendant could not control her horse (which was being guided on a path my the defendant) and it spooked and pushed the defendant into the path of the claimants car causing £1700 worth of damage to the passenger door. The claimant is only asking for half the money towards repairs but the defendant claims that the claimant was negligent by:
driving too fast (29mph) in the circumstances.
failed to slow down.
failed to allow any reasonable distance (defendant was on a path)
failed to give any warning.
failed to stop/slow down.

claimants response:
drove at 29 and there is video evidence from car camera.
no need to slow down as was not speeding.
defendant was on a footpath so there was no need to give any distance.
what sort of warning does the defendant want, if horn had been tooted that would have spooked the horse more.
claimant stopped when the collision occurred.

the defendant was NOT wearing reflective gear which is stated in the Highway Code, she went and bought reflective gear a few weeks later for which I have photographic evidence
I have quoted a few parts from the Highway Code which the defendant did not adhere to

[Amethyst]

Okay, as it was a procedural issue that the default judgment was obtained off the back of ( strike out of defence due to non submission of the DQ ) - and the Judge has agreed that it was a mistake ( the DQ had been sent just not received/logged) then that stands, the strike is lifted, the setaside granted and the claim proceeds as normal. Has the DQ now been submitted or were they ordered to resubmit by X date ?

Claimant - you - car driver
Defendant - person walking the horse

The horse spooked as you drove past and pushed the person walking the horse into the path of your car causing damage to the car (but the defendant was okay ? )

Presumably you have all the relevant highway code parts to show you acted in accordance. I'm not sure Horses are meant to be on the path unless its a designated bridleway ?

Was it daytime/nighttime - good visibility/conditions etc?

Do you also have quotes for repairing the damage?

Any insurers involved ? ( Did you report to your insurer? )

des8

[Kayla]

Yes claimant is driver, defendant is girl with the horse
she claimed she hurt her hand but there is no evidence of that
I have copied all relevant points on the Highway Code
it was 5pm in October but it wasn’t dark, visibility good (video evidence will show this) but you couldn’t see the horse until you were close up
defendant should have reflective gear in all conditions day or night
there was a police report filed to which I have copy
there are body shop repair quotes and a credit card payment slip showing the claimant paying for full amount on card
insurance company were contacted immediately

[des8]

It doesn't really help your case but the animal should not have been on the footpath (Highways Act 1835 sec 72)
Reflective gear for riders is for night time use; during daylight hours light coloured or fluorescent gear is recommended.

In any case the clothing is not a matter in this case as it seems you had seen the animal.

Whether you were driving too fast or did not leave sufficient room is very debatable.
Was there a verge between the path and the carriage way?
If not did you move over to the far side of the road, or did you maintain station on your side of the road?

IMO (as driver and rider!!) 29 mph is too fast passing any livestock,(regardless of the speed limit) and horses need a very wide berth.
The British Horse Society recommends a maximum speed of !5mph when passing horses

However , for your claim to succeed you must prove the person in control of the horse was in some way negligent, and that negligence caused or contributed to your loss.
You claim the defendant could not control her horse ....was the horse under control before being spooked by your approach?

Being nosey now :what sort of car has a door worth £1,700?

[Kayla]

I can’t really add to this as the video evidence shows clearly the incident and that driver was not at fault (as also stated in police report) it would take an expert to look at video evidence to judge themselves
the horse was not spooked by the claimants approach (again shown in video evidence)

as for the car, it was a 3 month old at the time Golf R so yes the damage was that much in cost (wouldn’t go to any back street garage to get it repaired)

[des8]

Whilst you the driver were not at fault, for your claim to succeed you will still have to show the person leading the horse was negligent.

From a cost perspective as the car was new I assume you were comprehensively insured, and really are pursuing the third party for your uninsured losses.
If your insurers did not think it worthwhile looking to the third party for reimbursement, it might not be worth your while either.
This could be because of the difficulty of proving negligence, or because the third party has no assets to pay any judgement anyway.

If you start an action you can always discontinue it.