Setting Aside A Judgement? Advice Please?

[jqinfo]

I will give it a try, I know when I asked for an adjournment it was turned down and she has a foreign accent and is very excitable without a good command of the English language!!

 

Thank you.

JQ

[Andyorch]

I will give it a try, I know when I asked for an adjournment it was turned down and she has a foreign accent and is very excitable without a good command of the English language!!

 

Thank you.

JQ

 

Ask her to use an interpritor if ness or someone calm to speak on her behalf.Dont leave it too late or you will miss notice to adjourn.

 

Andy

[surfaceagentx20]

There are a number of issues here. They are:

 

• the validity of the service of a claim form issued for service within the jurisdiction and served by post at a time when the Defendant was not within the jurisdiction
  
• the vality of any judgment entered in default
  
• the status of an application to set aside not made by the Defendant or solicitor on his behalf.
  

Validity of service

A claim form issued for service in the jurisdiciton and delivered to the Defendant by post at a time when the Defendant was not within the juridiction was held to constitute bad service.

 

Per Collins J in Challeram v Challeram [2002]

“.. it has always been, and remains, a fundamental rule

of English procedure and jurisdiction that a defendant may be

served with originating process within the jurisdiction only if he

is present in the jurisdiction at the time of service, or deemed

service. The Barclays Bank case* is simply an illustration of this

principle (as is another case, not cited in argument, Cadogan

Properties Ltd v Mount Eden Land Ltd [2000] IL Pr 722, in

which the Court of Appeal held that if the defendant is outside

England, an order for substituted service in England could not

be obtained unless permission to serve proceedings out of the

jurisdiction had been obtained). CPR Pt 6 contains general rules

about service of documents and does not only apply to service of

a claim form…but I do not consider that CPR 6.5 has swept

away the general principle so far as it relates to service of the

claim form.”

 

*Barclays Bank Swaziland Ltd v Hahn [1989] 1 WLR 506

 

This approach was followed in Fairmays v Palmer [2006]

 

Since then and with effect from 1 October 2008 CPR Part 6 has changed and CPR 6.9 has application to service of the claim form where the Defendant has not specified an address within the jurisdiction at which the claim form may be served. now provides:

 

6.9(1) This rule applies where

(a) rule 6.5(1) (personal service);

(b) rule 6.7 (service of claim form on solicitor); and

© rule 6.8 (defendant gives address at which the defendant may be served),

 

do not apply and the claimant does not wish to effect personal service under rule 6.5(2).

 

(2) Subject to paragraphs (3) to (6), the claim form must be served on the defendant at the place shown in the following table.

Nature of defendant to be served

Place of service

1. Individual Usual or last known residence.

 

 

(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1 .. in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (“current address”).

 

(4) Where, having taken the reasonable steps required by paragraph (3), the claimant—

(a) ascertains the defendant’s current address, the claim form must be served at that address; or

(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is—

 

(i) an alternative place where; or

(ii) an alternative method by which,

 

service may be effected.

 

(5) If, under paragraph (4)(b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15.

 

(6) Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant—

(a) cannot ascertain the defendant’s current residence or place of business; and

(b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b).

We are told (post no3) 'We were discussing the dispute with the solicitors, they said they would ring back. I informed them that my friend was leaving the country imminently. My friend left the country, the summons was received after she left..'

 

We are also told (post no6): 'As far as I am aware, she wont be back before the end of October, depending upon her sorting out her mother's estate (the family took it all and she was next of kin, but in England) and that is not definite!'

 

Whilst we are told the Defendant would be abroad and was abroad at the time of service, there is also evidence that the Defendant intends to return albeit no earlier than the end of October. That intention would be in keeping with her not having given up her residence in the UK and arguably the obligation under CPR 6.9(3) would not have arisen. In any event there is no evidence that the solicitors were told where else, once the Defendant had left the country, the Defendant might be served. Although a case might be advanced under the fundamental rule set out in Challeram, it should be noted that Challeram was a 2002 decision and Fairmay a 2006 decision, since when CPR 6 has changed as described above. I do not know of any decisions post 1 October 2008 on the point and it seems to me there is some risk that an analysis of the position along the lines I have made would result in the court finding there had been valid service of the proceedings notwithstanding the Defendant was abroad at the time of service.

 

Validity of Judgment

If the court found the fundamental principle as enunciated in Challeram applied after 1 October 2008, the judgment would be a nullity and set aside for lack of proper service. If the court found the fundamental principle had lapsed with the introduction of new CPR 6 on 1 October 2008, there are reasons to suppose the judgment would stand, subject to the usual considerations as to whether the Defendant was able to show in an application to set aside the default judgment that she had reasonable prospects of success.

 

Status of application

An application made in litigation if not made by the litigant herself must be made by a person having power to conduct litigation.

 

Courts and Legal Services Act 1990 section 28 provides:

 

Rights to conduct litigation.

(1) The question whether a person has a right to conduct litigation, or any category of litigation, shall be determined solely in accordance with the provisions of this Part.

 

(2) A person shall have a right to conduct litigation in relation to any proceedings only in the following cases

(a) where

(i) he has a right to conduct litigation in relation to those proceedings granted by the appropriate authorised body; and

(ii) that body’s qualification regulations and rules of conduct have been approved for the purposes of this section, in relation to that right;

(b) where paragraph (a) does not apply but he has a right to conduct litigation in relation to those proceedings granted by or under any enactment;

© where paragraph (a) does not apply but he has a right to conduct litigation granted by that court in relation to those proceedings;

(d) where he is a party to those proceedings and would have had a right to conduct the litigation, in his capacity as such a party, if this Act had not been passed.

 

(2A) Every person who exercises in relation to proceedings in any court a right to conduct litigation granted by an authorised body has

(a) a duty to the court to act with independence in the interests of justice; and

(b) a duty to comply with rules of conduct of the body relating to the right and approved for the purposes of this section;

and those duties shall override any obligation which the person may have (otherwise than under the criminal law) if it is inconsistent with them.]

 

(5) In this section—

“authorised body" means

(a) the Law Society;

(aa) the General Council of the Bar;

(ab) the Institute of Legal Executives; and

(b) any professional or other body which has been designated by Order in Council as an authorised body for the purposes of this section;

 

“appropriate authorised body", in relation to any person claiming to be entitled to any right to conduct litigation by virtue of subsection (2)(a), means the authorised body

(a) granting that right; and

(b) of which that person is a member;

 

“qualification regulations", in relation to an authorised body, means regulations (however they may be described) as to the education and training which members of that body must receive in order to be entitled to any right to conduct litigation granted by it; and

 

“rules of conduct", in relation to any authorised body, means rules (however they may be described) as to the conduct required of members of that body in exercising any right to conduct litigation granted by it.

Making an application to set aside judgment is conducting litigation and accordingly, unless the person conducting the ltigation is authorised by section 28, that application was always susceptable to striknig out for being an application made by a person lacking authority to make it. That is why you have been told by the court to find a solicitor, ie a person having a right to conduct litigation. I confirm if the Defendant is not going to make the application to set aside judgment herself, any application made on her behalf must be made by a solicitor or other person authorised under section 28.

 

After saying all this, so long as the application is made by an authorised person the essential considerations for the court will be whether the Defendant can show she has reasonable grounds for successfully defending the claim. These grounds haven't been discussed as yet. Mind you, since you've only got until 25 September, you're better off spending your time providing detailed instructions to a solicitor rather than this forum.

 

x20

[jqinfo]

Thank you x20 for your indepth response. I think I have taken it all in!

 

I am still trying to find a solicitor to take on the set aside, without having to review the whole of the negligence issue first, costing a fortune! Tomorrow I will be on the phone once again!!

 

I am in a panic though!

 

Thank you once again.

 

JQ

[jqinfo]

Quick update - I cannot tell you folk how sick I feel right now! The responsibility I have is one thing, but the thought of the actual case being struck out being my fault for not managing to get a solicitor is filling me with dread!

 

I have two appointments tomorrrow, one who may not be available Fri for the court hearing; and the other who says we may have to pay an amount into the court if my friend is allowed to defend her case! Everythime I think I am a step nearer to moving to a better conclusion, there is another obstacle!!

 

God give me strength!

 

JQ

 

JQ

[jqinfo]

x20

 

May I ask please:

 

With regard to the return of my friend in October, her house is rented out and thus would have to come and stay with me. I believe the solicitors are aware of this because the tenant told me that they had called asking questions. With regard to validity of judgment, how would service at that address stand? The October date was not a definite due date, only a possibility and with this now she is trying to get back sooner, but it will only be temporary!

 

Also, with regard to section 28, if I hold a signed and witnessed authority to deal with her affairs and the solicitor has always dealt through me to ensure there is not confusion due to language barriers etc, does this count as "power to conduct litigation" on her behalf as a litigation friend?

 

Thank you in anticipation, I am trying to pre-empt solicitor's questions and be prepared!

 

JQ

[surfaceagentx20]

JQ,

As for Q1, the answer is found in whether the address at which the proceedings were served constitutes a valid address for service. I go back to what I said before in reference to CPR 6.9. CPR 6.9(2) directs where the proceedings are to be served. Note the use of the word 'MUST'. The valid address is the usual or last known address unless it can be shown that the Claimant had reason to believe the address was no longer the Defendant's residence.

 

You now tell us that your friend has rented the property out. That tends to suggest the address at which proceedings were served has or even had at the time of service, ceased to be her residence. You say the solicitors are aware of this because they have been around asking questions. However, what the solicitors now know matters not I am afraid. The relevant state of their knowledge will be the date of service, not so many weeks or months later. Besides, even if you were able to show the Claimant was aware the address had ceased to be your friend's address at the time of service, unless you are able to demonstrate that the Claimant ascertained some other address at which your friend might be served, CPR 6.9(6) permits service at the last known address. Did the solicitor ask where the tenant was paying the rent I wonder, or ask to be shown the tenancy agreement recording the address of the tenant's landlord?

 

As for Q2, the mere fact that your friend authorises you to deal with her affairs does not elevate you to the status of one of those persons in section 28(2). Neither does the authority mean that you become a litigant in person within the meaning of section 28(2)(d). It seems to me your authority extends to retaining someone having section 28(2) status to conduct litigation on behalf of your friend, but not to conduct litigation as if you were the Defendant in person.

 

As for your fears your friend's case may be struck out, strictly speaking your friend's ability to advance a case will be conditional upon the court setting the judgment aside and directing the service of a defence. At present therefore and since no direction for service of a defence has been made, your friend does not have a case which could be struck out. It is of course right to say there is a pending application and the application may be struck out. However, since that application was made by a person who had no section 28(2) authority to make it, it seems to me that unless a solicitor can be persuaded to take the case on in time, the application will be struck out. In my opinion it would be unjust for your friend to be later prejudiced by reason of any order made upon the hearing of an application which was made by a person who lacked section 28(2) authority. Your friend ought to be free to disown the application made in her name but without authority and make an original application of her own. This distinction is important for otherwise, if she were bound by the decision upon an aplication she had not made, her only remedy then would be to appeal.

 

I repeat also what I said earlier, namely that, the legal niceties aside, what will truly determine the outcome is whether or not your friend can demonstate she has reasonable prospects of succeeding at trial and whether she made an application to set aside the defalt judgment promptly after learning about it.

 

x20

[jqinfo]

Thank you x20

 

It does not look good then!?

 

Q1, she rented the property out before leaving, but I did not inform the solicitors of that, they found out when they called after I had said she was out of the country. So it would be the last known address, however they were perfectly aware that she would be leaving the country and that she would not receive the papers! The rent is not paid by the tenant but an insurance company, when it arrives, and the Landlord's address is c/o my address due to her being out of the country. All that is in the tenancy, which was prepared correctly through a letting agent!

 

Q2, if I have understood correctly, under S28 I would be able to conduct litigation on behalf of my friend, which is what I was trying to do? I do not think I have understood the exact difference to my position here?

 

Your comments regarding my friend appealing, that appears to provide a safety net if the case is struck out if it is deemed that I do not have S28 position to apply for the set aside to begin with, but only if it can be established that she had a valid case to defend?

 

May I ask what would have been a better way, having received the summons after she left the country and the judgment entered, to deal with this situation?

 

Thank you once again.

 

JQ

Edited September 22, 2009 by jqinfo
Typing error!