County court set aside hearing - claimant attendance?

[eastender]

A contact of mine has obtained a judgement for some professional work
done for an agency and it looks to me like a rock solid case. But the
agency (trading as an individual it seems) has applied to have the
judgement set aside and a date has been set.

Is it imperative for the claimant to also attend this hearing - in this
case it will involve a round trip of several hours and it's a short
slot. Or can he obtain the grounds for the set aside in advance and
lodge an objection?

E.

[Martin Bonner]

On Monday, May 5, 2014 11:56:21 AM UTC+1, eastender wrote:
> A contact of mine has obtained a judgement for some professional work
> done for an agency and it looks to me like a rock solid case. But the
> agency (trading as an individual it seems) has applied to have the
> judgement set aside and a date has been set.

Was the original judgement obtained in default? (In other words, the
defendant didn't turn up). If so, it'll be very hard to prevent the
judgement being put aside, and your friend will have to actually prove
his case.

[Chris R]

>
>
> "eastender" wrote in message news:2014050511562177230-nospam@nospamcom...

Very unwise not to attend (or be represented) at the hearing unless he knows
exactly what's going to happen and it isn't contested. Is this judgment in
default? Depending on what has happened, this may be more about the reasons
why the judgment is irregular or the defendant's excuse for not responding
than about the merits of the case.

Costs are likely to be awarded (even in a case that should end up on the
small claims track) so it's better to agree the application if it's likely
to succeed, and it's worth considering being represented by a local
solicitor or barrister if it's likely to fail.

He should get the defendant's witness statement in support of the
application in advance, and he should lodge his own witness statement if
possible, certainly if any of the facts are contested.

If you are able to post more information about the circumstances of the
judgment (without identifying the parties) you may get more help here.
--
Chris R

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======end legalstuff======

[eastender]

The position is that they were served with the papers, didn't respond
to the court and so have a judgement against them. After now trying to
enforce the judgement they have applied to the court to have it set
aside. In fact they paid a third of the sum before - he started the CCJ
when they wouldn't pay the rest.

i don't understand why it will be hard to prevent the judgement being
set aside when they didn't defend it. They certainly got the papers.

E.

[Fredxxx]

Why?

If set aside there'll be another new hearing. Why make two round trips
when one would be sufficient?

I have heard a that judges will accept a telephone conference where the
alternative is excessive travel times and potential costs.

[Paul Rudin]

eastender <nos...@nospam.com> writes:

> i don't understand why it will be hard to prevent the judgement being
> set aside when they didn't defend it. They certainly got the papers.

The test for setting aside judgement in default of acknowledgement of
service is if the defendant has a real prospect of successfully
defending the claim, or there is some other good reason why the judgment
should be set aside, or the defendant should be allowed to defend the
claim.

In deciding whether to allow this the court will take into account
whether the application to do so was made promptly.

See CPR 13.3
<http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13#13.3>

It's actually quite a low threshold.

[eastender]

On 2014-05-05 14:58:11 +0000, Paul Rudin said:

> It's actually quite a low threshold.

You're telling me - seems you can ignore court papers and wait for a
default judgement and then start messing about.

E.

[steve robinson]

Thats about it

--

[Paul Rudin]

But it'll probably cost you money.

[Francis Davey]

Le lundi 5 mai 2014 21:20:11 UTC+1, steve robinson a �crit�:
>
> Thats about it
>

This may have all changed in the post Jackson/Mitchell world. Reports I am hearing suggest that implementation at the district judge level are inconsistent but a much harder line is being taken.

The original Woolf view was that, broadly speaking, provided there was no prejudice to the other party and any costs were compensated then there was no good reason for justice to lock someone out from what could be a valuable case to them. That does seem broadly sensible and was fairly workable.

Francis

[The Todal]

I disagree - I think the threshold is quite high.

You haven't told us enough about the issues. The defendant has to
demonstrate to the court that he has a real prospect of successfully
defending the claim. The Notice of Application should have a witness
statement annexed to it (or in the box at the end) stating why the
defendant believes he has a real prospect.

The claimant probably should not agree to judgment being set aside
unless he agrees that the defendant has an arguable defence.

By not turning up, he would give the judge the impression that he didn't
really care either way. He must turn up. He could ask the defendant's
solicitor if he will agree to have the application heard by telephone.
If both sides agree, the judge will almost certainly list it for a
telephone hearing.

The claimant should claim his costs of the hearing - which would be the
value of the time he has spent preparing for the hearing, and any
travelling expenses and loss of earnings. The judge would normally award
those costs to the claimant but he would need to see a calculation.

[Ian Jackson]

In article <bss19l...@mid.individual.net>,

The Todal <deadm...@beeb.net> wrote:
>The claimant should claim his costs of the hearing - which would be the
>value of the time he has spent preparing for the hearing, and any
>travelling expenses and loss of earnings. The judge would normally award
>those costs to the claimant but he would need to see a calculation.

Would the claimant be entitled to those costs in a case on the Small
Claims Track ? (Although actually I guess the OP's case probably
hasn't been allocated to a track yet...)

--
Ian Jackson personal email: <ijac...@chiark.greenend.org.uk>
These opinions are my own. http://www.chiark.greenend.org.uk/~ijackson/
PGP2 key 1024R/0x23f5addb, fingerprint 5906F687 BD03ACAD 0D8E602E FCF37657

[Chris R]

>
>
> "Ian Jackson" wrote in message
> news:Opr*RH...@news.chiark.greenend.org.uk...

>
> In article <bss19l...@mid.individual.net>,
> The Todal <deadm...@beeb.net> wrote:
> >The claimant should claim his costs of the hearing - which would be the
> >value of the time he has spent preparing for the hearing, and any
> >travelling expenses and loss of earnings. The judge would normally award
> >those costs to the claimant but he would need to see a calculation.
>
> Would the claimant be entitled to those costs in a case on the Small
> Claims Track ? (Although actually I guess the OP's case probably
> hasn't been allocated to a track yet...)
>

Quite. This can come as a shock to parties, as i pointed out in my first
response.

I had a debt collection a while ago which would have gone on the small
claims track, where judgment was obtained in default, and the defendant
applied to set aside very late and with an unarguable defence. He got costs
awarded against him for counsel attending the hearing (and a previous
adjourned hearing due to a court mistake).

[rosec...@gmail.com]

Hi
I have similar problem with a case against my landord. Is this post stilll live for me to stte my case as I need help with my witness statement whilst awaiting the court's date for a hearing as the defenadant has applied for my judgement to be set aside.

[R. Mark Clayton]

On Monday, 5 May 2014 11:56:21 UTC+1, eastender wrote:

Which court did s/he use, couldn't they select one near them rather than the defendant, or try and get the case moved.

[The Todal]

I think the 2014 post has expired but yes, you can bring up the topic again.

Can you explain what you are suing for?

Is there a hearing date for the application to set aside? You ought to
attend, though it may be that the judge won't be swayed by any arguments
you want to put forward and will just look at the case you have pleaded
and the proposed defence.

You should ask for your expenses for attending the hearing though - any
travelling expenses and any loss of wages.

[brianwh...@hotmail.com]

If you can demonstrate any or all of the following:

1. The defendant has no real prospect of successfully defending the claim;
2. The defendant has unduly delayed in making his application to set judgment aside;
3. The defendant is playing games (e.g. it consciously chose not to defend the claim, and is only now applying to set aside to try and avoid enforcement of the judgment),

you should have a reasonable prospect of resisting the D's application.

Otherwise, you'll have an uphill struggle.