Wrongly entered judgement set aside but no strike out?

[KayCatt]

Hi everyone,
I’m new here. I’ve been in a long standing dispute with my freeholder over service charge demands. I withheld payment as she hadn’t followed section 20 consultation requirements for major works. We both own properties in the same block. She lives upstairs and my flat is downstairs. I haven’t lived there for years, which of course she knows. It’s been tenantted on and off, She threatened court action and I expressed my intention to defend the proceedings. She then filed proceedings and had them served *at the flat she knew I didn’t live at. Obviously I didn’t receive them. She then obtained judgement in default (again I had no knowledge). She didn’t request payment of the judgement but instead proceeded to apply for a bailiffs warrant and changed the address to the company I work for. The first I knew of the claim was when bailiffs turned up at my work. I believe it’s clear she abused the court process to obtain judgement in default before I knew anything about it or could defend the claim. She refused to agree to set aside the claim. The court intervened and changed the address on the warrant. She then proceeded to apply for an attachment of earnings order. I panicked that before any application to set aside would be processed that my employer would be contacted. I therefore made payment of the full judgement amount to get, but sent an email making it clear that I believed the judgement was wrongly entered and the payment was being made without any admission of liability or prejudice to an application to set aside judgement,
My application to set aside was heard today. The judgement was set aside on mandatory grounds on the basis service hadn’t been effected. I then asked the judge to strike out the claim as service had not been effected within the 4 month period and asked for payment back of the monies I’d paid against the judgement. Stupidly I hadn’t made a formal application to set aside in my notice, but I thought this would follow the event if he was satisfied the claim hadn’t been served. The judge looked really confused when I asked for strike out. He said you now need to serve a defence. I asked to what, no claim had been served? He said “I’m not making any order on this today. I don’t know the law on whether the 4 months has run out or not. It’s confusing because the 4 months is up, but at the same time a judgement was entered so I don’t know whether her time is up”!! He didn’t make any order to make service good, he just made an order judgement was wrongly entered and then set aside on mandatory grounds and gave me my costs. What do I now do? Judgement was wrongly entered but I’ve paid her over in excess of £1000 when I also have a really good defence. Do I need to make a separate application for strike out and seek an order for the monies paid against a wrongly entered judgement?

[jaguarsuk]

You now need to file a defence to the claim and a Counter Claim for the amount you have paid plus fee for it, you'll have to argue that she should have followed section 20 consultation requirements for major works to require any payment.

The deadline for your defence and counter claim to be filed will be 14 days from the date of the hearing, so you'd best get cracking. File it with the court and serve a copy on all parties.

I'm not sure what the four month thing is that you keep mentioning?

[KayCatt]

Thanks Jaguars. My understanding is that the claim has to be served within 4 months of issue (CPR 7.5). The Judge made an order today for a set aside on mandatory grounds on the basis that it had not been validly served. He found that she was not entitled to serve at my last known address because she hadn’t made any attempts to ask for my current address. I could understand me having to file a defence if he’d set aside on discretionary grounds - because that would mean the claim had been served and it would simply afford me the opportunity to defend it. Surely now that he’s made an order that the claim wasn’t served, there is nothing for me to actually defend? He didn’t extend time for service or anything like that. He just didn’t strike out and seemed very confused

[jaguarsuk]

You could apply to strike out the claim on the basis you suggest, but it's a risk and if you get the same judge not one you're likely to be successful with.

If you just do nothing then the claimant can apply for summary judgement again and if she does you will not get a second set aside. If you don't have a copy of the claim form, then ask the other party for them to send you a copy and if they ignore you then you file a defence based on not having received the claim form.

The only thing in my opinion that CPR 7.5 will have a bearing on is the costs discussion after a ruling has been made in the hearing of the claim and if you file one counter claim.

You may ask for costs to be considered pursuant to CPR 27.14, but don't be surprised if you don't get any.

[R0b]

Thanks Jaguars. My understanding is that the claim has to be served within 4 months of issue (CPR 7.5). The Judge made an order today for a set aside on mandatory grounds on the basis that it had not been validly served. He found that she was not entitled to serve at my last known address because she hadn’t made any attempts to ask for my current address. I could understand me having to file a defence if he’d set aside on discretionary grounds - because that would mean the claim had been served and it would simply afford me the opportunity to defend it. Surely now that he’s made an order that the claim wasn’t served, there is nothing for me to actually defend? He didn’t extend time for service or anything like that. He just didn’t strike out and seemed very confused

I think you have misunderstood the default judgment and set aside process. The claim form has already been issued so it doesn't need to be re-issued unless the court makes an order to that effect.

Setting aside a default judgment is made on either mandatory or discretion grounds in accordance with the Part 13 of the CPR. Neither of them have any bearing on whether a defence must be filed or not because whatever the basis on which the default judgment is set aside, the claim does not get dismissed rather it restarts back to the position where you were required to file a defence.

Unless you attached a draft defence to your set aside application, the order will probably say that within 14 days from the date of the order, you will be required to file a defence and then the claim will proceed along the its usual procedural steps.

I have written an extensive guide on set aside applications, so if you are confused about any part of the process, I suggest you give it a read and then you should understand a bit better.

https://legalbeagles.info/forums/for...tailed-version

[KayCatt]

Thanks Rob. That thread is really useful. When I asked the Judge about next steps, he didn’t specify. The Judge made reference to the Claimant serving particulars or me filing a defence, then said he “didn’t know the law” (I swear!) and that he wouldn’t be making any orders, I’ve checked with the court today and there is an order *for the set aside and an order for my costs. That’s it, as mentioned in my original post, the Court found that the claim had not been served (not that it had t been issued). It was issued 18 months ago, but the Judge found it had t been served. Does that still mean I have to serve a defence as surely the time limit for a defence runs from date of service?

[R0b]

If it simply says that the judgment is set aside and a costs order in your favour then it would be an extremely odd order and the claim itself would be in a limbo. I'd be concerned by the judge's comments that he didn't know the law and should have took it upon himself to familiarise himself.

I think you need to press the court and ask them to confirm whether the claim has been dismissed or if you are required to file a defence.