N164 Appeal help

[Bear23]

Re: N164 Appeal help

it is iv been silly and hasty as I have had success before at the application stage, didn't take the right advice now paying for it. Appreciate all your help from you and all the members. Its sites like this that really make the difference and win or lose your gotta fight!!!! :tinysmile_twink_t2:

[nemesis45]

Re: N164 Appeal help

I don't think I can advise any differently to you Nem.

At a loss I know the learned judge concerned, always where at all possible gentle with LIP's
I agree application to vary judgement order is the Only way forward.

nem

[Bear23]

Re: N164 Appeal help

your right - ok so how do I go about applying to vary the order ? any links you can direct me to? appreciate your help.

say I could afford to pay £2,000 as a one off payment to these people the debt is £3,899.88 which includes interest court fees etc., the original debt is £3,000. What do you think my chances are and can I do this under a vary order?

[nemesis45]

Re: N164 Appeal help

it is iv been silly and hasty as I have had success before at the application stage, didn't take the right advice now paying for it. Appreciate all your help from you and all the members. Its sites like this that really make the difference and win or lose your gotta fight!!!! :tinysmile_twink_t2:

Hello Bear,
I'm sorry that we cannot get further with this for you.
My advice for what it's worth is to write to the solicitors with an up to date I & E statement as ask them to approach the claimant
in regard to variation of the judgement order.

You will need to make an offer that is reasonable/affordable/sustainable backed up by the I & E statement.
Hopefully they will agree possibly without going back to the court.

nem

[Bear23]

Re: N164 Appeal help

As a vary order will it be classed as a CCJ still?

[nemesis45]

Re: N164 Appeal help

As a vary order will it be classed as a CCJ still?

Yes I'm afraid so, I have to agree with [MENTION=6]Amethyst[/MENTION] having read all of the thread
again there are no grounds for set aside and an appeal is doomed to fail.
nem

[Amethyst]

Re: N164 Appeal help

your right - ok so how do I go about applying to vary the order ? any links you can direct me to? appreciate your help.

say I could afford to pay £2,000 as a one off payment to these people the debt is £3,899.88 which includes interest court fees etc., the original debt is £3,000. What do you think my chances are and can I do this under a vary order?

Varying an order is http://www.legalbeagles.info/forums/...judgment-order

The time for negotiating was before the hearing, and yes you might have got away with £2k then. Now though they have the upperhand, you could speak to them and tell them you are submitting an application to vary the order to installments of £50 a month - but you might be able to get X amount together if they would mark it as settled ........... if you settle it in full within 28 days from the judgment you won't have the marker on your credit file.

[Bear23]

Re: N164 Appeal help

hello all,

Ok well I went ahead and went for a set aside which I have today received notifcation that a new hearing will be set for the end of February.

I have been advised (on another site) to now to do an Unless order under a N244 form asking for an order to be made as of question No. 3 An Order (A draft of which is attached) that the Claimant shall provide the Defendant with copies of the documents listed in the draft Order, pursuant to its duties under CPR18 request, within 7 days of the Order: In default of the above the claim stands struck out without further Order.

my question is that do you think (and I use both sites to get a wider range of advice) I should not go down the route on an Unless Order and just attend the next Hearing ?

As ever you advice and help is always appreciated.

Many thanks
Bear23

[Amethyst]

Re: N164 Appeal help

Part 18 is not suitable for an unless order application in small claims. You have to set aside the judgment before you can apply for unless orders anyway.

What did you ask for in your Part 18 ?

We do things very differently from GOODF so you might just be confusing yourself using both sites for the same case.

Also would need to see your application to set aside.

[Amethyst]

Re: N164 Appeal help

Here ( just as I feel I need to evidence what I am saying ref difference of opinion with GOODF )

CPR 27

27.2

(1) The following Parts of these Rules do not apply to small claims –

(a) Part 25 (interim remedies) except as it relates to interim injunctions(GL);

(b) Part 31 (disclosure and inspection);

(c) Part 32 (evidence) except rule 32.1 (power of court to control evidence);

(d) Part 33 (miscellaneous rules about evidence);

(e) Part 35 (experts and assessors) except rules 35.1 (duty to restrict expert evidence), 35.3 (experts – overriding duty to the court), 35.7 (court’s power to direct that evidence is to be given by single joint expert) and 35.8 (instructions to a single joint expert);

(f) Subject to paragraph (3), Part 18 (further information);

(g) Part 36 (offers to settle); and

(h) Part 39 (hearings) except rule 39.2 (general rule– hearing to be in public).

(2) The other Parts of these Rules apply to small claims except to the extent that a rule limits such application.

(3) The court of its own initiative may order a party to provide further information if it considers it appropriate to do so.

Also, you are aware of potential of having costs awarded against you for the hearing ? ( just making sure)

Costs thrown away
Where, for example, a judgment or order is set aside, the party in whose favour the costs order is made is entitled to the costs which have been incurred as a consequence. This includes the costs of –

preparing for and attending any hearing at which the judgment or order which has been set aside was made;
preparing for and attending any hearing to set aside the judgment or order in question;
preparing for and attending any hearing at which the court orders the proceedings or the part in question to be adjourned;
any steps taken to enforce a judgment or order which has subsequently been set aside.

this would be because you didn't attend the original hearing and this is the reason you have applied to set-aside, not because of anything the claimant has done.

Have you any evidence of the 'bullying and intimidation' ? if indeed you did state that in your set-aside application of course.

2. the Defendants failed to attend the hearing, due to feeling bullied and intimidated as our CPR 18 request was denied. We wrote to the Court explaining this, not realising that Judgement would be awarded against us if we did not attend. For which we would like to apologise to the Court as we intended no disrespect but simply misunderstood the situation as we do believe we have a valid defence against this claim, namely:

[Bear23]

Re: N164 Appeal help

I made an application for a set aside in January on the N244 form, I asked for the following

3. what order are you asking the court to make and why?

An order that the judgement in this case dated XXXX be set aside under SPR39.3(3) where a party does not attend and the Court gives Judgement or makes and Order against him, the party who failed to attend may apply for the Judgement or order to be set aside.

I sent his with my witness statement and my £155.00 Fee.

I then received a Notice of Hearing, so I believed that this meant the order has been set aside and I could then in the meantime apply for an Unless Order, but I was wondering if you would think it would be best just to attend the actual hearing?

The previous post was not advice given from the GOOFD website its various info I picked up from threads on your site.

I know there may be a conflict of advice, but I believe this case from the amount of posts and forums that I have been trolling trough, is quite unique and if anyone finds themselves in a similar situation it would be good to have this post with advice on this site as well as the other site J xxx

Again, thanks for your help.

[Amethyst]

Re: N164 Appeal help

The judgment stands until such time as you have it set-aside. That you have a hearing is because you sent an application requesting a hearing, and it is at that hearing that it will be decided if the judgment will be set aside and you will be able to then submit your defence. (and do any requests/unless orders etc) You do need to attend the hearing.

Did you also submit a draft defence ? Part of the setaside in these circumstances is to see if you have a reasonable chance of success with your defence.

Did you include in your setaside witness statement about bullying and intimidation ? If so do you have evidence of this ?

[Bear23]

Re: N164 Appeal help

We did not submit a draft defence no, just a Witness Statement and yes we did make one of the points about bullying, but we have no evidence, we have thrown any letters sent away and we disconnected and changed our telephone line of the old number due to the amount of calls.

[Amethyst]

Re: N164 Appeal help

For your reference

Failure to attend the trial

39.3

(1) The court may proceed with a trial in the absence of a party but –

(a) if no party attends the trial, it may strike out(GL) the whole of the proceedings;

(b) if the claimant does not attend, it may strike out his claim and any defence to counterclaim; and

(c) if a defendant does not attend, it may strike out his defence or counterclaim (or both).

(2) Where the court strikes out proceedings, or any part of them, under this rule, it may subsequently restore the proceedings, or that part.

(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside(GL).

(4) An application under paragraph (2) or paragraph (3) must be supported by evidence.

(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend the trial, the court may grant the application only if the applicant –

(a) acted promptly when he found out that the court had exercised its power to strike out(GL) or to enter judgment or make an order against him;

(b) had a good reason for not attending the trial; and

(c) has a reasonable prospect of success at the trial.

[Amethyst]

Re: N164 Appeal help

We did not submit a draft defence no, just a Witness Statement and yes we did make one of the points about bullying, but we have no evidence, we have thrown any letters sent away and we disconnected and changed our telephone line of the old number due to the amount of calls.

when did you change your telephone line ?