Help Please. What a cockle up.

[Isiris]

This is posted for a friend who is a car dealer.

 

On his own private land was a car with a sold notice in the window. A DVLA agent came and clamped the car. My friend on realising contacted them and said im a trader so no clamping allowed. They said well the managers not in, Ill get him to ring you on Monday. On the Sunday, they came and removed the car. This was before the 48 hours had expired.

 

He raised a claim in the county court and by default, got a default judgement for the full amount of the car sale of £2300. With exes it was £2400. He issued a writ of fi fe and on the 28th September 12, the HCEO executed the warrant and the defendant paid in full. The money was held for the 14 days and the HCEO released the money, appearing in his account yesterday.

 

He has now received a Notice of Hearing and a AQ form to complete. He phoned his local office who said that the judgement had been set aside WITHOUT A HEARING on the 9th October 12 (No paperwork received to this effect as they are 14 days behind) With the Notice of hearing is the defendants defence dated 8th August though when the HCEO went, they admitted they hadnt done it.

 

My friend is obviously peed off that this can happen. He has followed the letter of the law, as has the HCEO and wants to know where he stands as he wants to initially appeal against the Set Aside.

 

1. If the end result is a loss for my friend, whos liable for the HCEO fees?

2. The court never informed anyone of the Set Aside hearing, nor did they inform the HCEO that it had been Set Aside, though they would have known of the writ of fi fe.

3. Can a court really set aside without an hearing. Surly not?

 

Thoughts please

[Isiris]

Anyone?

[Isiris]

This is posted for a friend who is a car dealer.

 

On his own private land was a car with a sold notice in the window.

A DVLA agent came and clamped the car.

My friend on realising contacted them and said im a trader so no clamping allowed.

They said well the managers not in, Ill get him to ring you on Monday.

On the Sunday, they came and removed the car.

This was before the 48 hours had expired.

 

He raised a claim in the county court and by default, got a default judgement for the full amount of the car sale of £2300.

With exes it was £2400.

 

He issued a writ of fi fe and on the 28th September 12,

the HCEO executed the warrant and the defendant paid in full.

The money was held for the 14 days and the HCEO released the money, appearing in his account yesterday.

 

He has now received a Notice of Hearing and a AQ form to complete.

He phoned his local office who said that the judgement had been set aside WITHOUT A HEARING on the 9th October 12

(No paperwork received to this effect as they are 14 days behind)

With the Notice of hearing is the defendants defence dated 8th August though when the HCEO went, they admitted they hadnt done it.

 

My friend is obviously peed off that this can happen.

He has followed the letter of the law, as has the HCEO and wants to know where he stands as he wants to initially appeal against the Set Aside.

 

1. If the end result is a loss for my friend, whos liable for the HCEO fees?

2. The court never informed anyone of the Set Aside hearing, nor did they inform the HCEO that it had been Set Aside, though they would have known of the writ of fi fe.

3. Can a court really set aside without an hearing. Surly not?

 

Thoughts please

[AndyOrch]

Hi Isiris

 

Just giving this a nudge for you but I assume you have researched and digested CPR 13?

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13

 

Regards

 

Andy

[Isiris]

Good morning Andy, still burning the midnight oil I see.

 

Yes I did look at all the variants but at this moment in time, my friend has neither received notice that the judgement has been set aside, only confirmation of this because he has received the AQ. When he rang the court they said the Judge did it without a hearing but on what grounds? They have received the claim form, they acknowledged service so I am struggling how the DJ allowed it and even more so without a hearing.

[AndyOrch]

Hi Isiris

 

From another angle did the defendant complete AoS or Defence " He raised a claim in the county court and by default, got a default judgement for the full amount of the car sale "

 

CPR 12.1

In these Rules, ‘default judgment’ means judgment without trial where a defendant –

(a) has failed to file an acknowledgment of service; or

(b) has failed to file a defence.

 

 

If not lets look at the application to set a side

 

CPR23.7

 

(1) A copy of the application notice –

(a) must be served as soon as practicable after it is filed; and

(b) except where another time limit is specified in these Rules or a practice direction, must in any event be served at least 3 days before the court is to deal with the application.

(2) If a copy of the application notice is to be served by the court, the applicant must, when he files the application notice, file a copy of any written evidence in support.

(3) When a copy of an application notice is served it must be accompanied by –

(a) a copy of any written evidence in support; and

(b) a copy of any draft order which the applicant has attached to his application.

(4) If –

(a) an application notice is served; but

(b) the period of notice is shorter than the period required by these Rules or a practice direction,

the court may direct that, in the circumstances of the case, sufficient notice has been given and hear the application.

(5) This rule does not require written evidence –

(a) to be filed if it has already been filed; or

(b) to be served on a party on whom it has already been served.

(Part 6 contains the general rules about service of documents including who must serve a copy of the application notice)

 

Applications which may be dealt with without a hearing

CPR23.8

 

The court may deal with an application without a hearing if –

 

(a) the parties agree as to the terms of the order sought;

(b) the parties agree that the court should dispose of the application without a hearing, or

© the court does not consider that a hearing would be appropriate.

 

 

and:-

 

Application to set aside or vary order made without notice

CPR23.10

 

(1) A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside(GL) or varied.

(2) An application under this rule must be made within 7 days after the date on which the order was served on the person making the application.

 

http://www.justice.gov.uk/courts/pro...l/rules/part23

 

 

 

Regards

 

Andy

[wonkeydonkey]

This is posted for a friend who is a car dealer.

 

On his own private land was a car with a sold notice in the window.

A DVLA agent came and clamped the car. for what reason?

My friend on realising contacted them and said im a trader so no clamping allowed.

They said well the managers not in, Ill get him to ring you on Monday.

On the Sunday, they came and removed the car. they cannot enforce on a Sunday

This was before the 48 hours had expired.

 

He raised a claim in the county court and by default, got a default judgement for the full amount of the car sale of £2300.

With exes it was £2400.I take it this was the action taken by your friend?

He issued a writ of fi fe and on the 28th September 12,

the HCEO executed the warrant and the defendant paid in full. was the defendant a company or individual?

The money was held for the 14 days and the HCEO released the money, appearing in his account yesterday.

 

He has now received a Notice of Hearing and a AQ form to complete.

He phoned his local office who said that the judgement had been set aside WITHOUT A HEARING on the 9th October 12

(No paperwork received to this effect as they are 14 days behind)

With the Notice of hearing is the defendants defence dated 8th August though when the HCEO went, they admitted they hadnt done it. see below

 

My friend is obviously peed off that this can happen.

He has followed the letter of the law, as has the HCEO and wants to know where he stands as he wants to initially appeal against the Set Aside.

 

1. If the end result is a loss for my friend, whos liable for the HCEO fees?

2. The court never informed anyone of the Set Aside hearing, nor did they inform the HCEO that it had been Set Aside, though they would have known of the writ of fi fe.

3. Can a court really set aside without an hearing. Surly not?

 

Thoughts please

 

The defendant is clutching at straws, if he is claiming set aside due to no notification of service to the claim that is his right, I tend to suggest the set aside is not absolute..hence the reason for the allocation questionaire.....the Court wish to hear the defendants defence in person, to the original Claim your friend made, they will be looking to establish if the debt to your friend is proven (evidence) if your friend has a good claim the Court will refuse to make set aside and thats the end of it.

 

If the defendant can show without doubt the debt is not his, only then will the Court set aside the Judgment.

The HCEO should have received notice to a set aside having been made when due process to the Writ application was made, I think you will find the defendant has 'backdated' his claim for set aside but I think the Court will see through this ?????

 

It is important that your friend returns the AQ asap and also attends the hearing when a date for it is allocated.

 

I cannot offer you more as without sight of the paper trail it is very difficult to see what has taken place or when.

 

What HCE firm handled the Writ?

 

WD

[Isiris]

Hi Andy

 

He did acknowledge service but never filed a defence with the court. SO he cannot, IMO, claim he never received any forms.

[AndyOrch]

Right Isiris

 

Look at CPR 12.1

 

In these Rules, ‘default judgment’ means judgment without trial where a defendant –

(a) has failed to file an acknowledgment of service; or

(b) has failed to file a defence.

 

So if a AoS was submitted then you really should not have been granted a Default Judgment ?

 

Regards

 

Andy

[Isiris]

Thanks Andy

But

Surely doesnt the b mean that as he has failed to file a defence, then he could apply for the defaut judgement after the 33 days which he did.

 

I may not he explained that point properly

[AndyOrch]

Well thats what you will need clarification on:-

 

AoS submitted but no defence I assume that the N225 was used to request judgment.Why as an AQ been released if no defence submitted ( or has one been submitted and allowed without your knowledge)?

Application for a set a side allowed without hearing and no notice or application for S a S ever served to your friend.

 

Andy

[AndyOrch]

Dupe

[Isiris]

Andy Ill try and bullet point it as Ive not been clear, I appologise and thanks for your help.

 

1. Claim Issued at Huddersfield CC. This is then transfered to Salford to do the paperwork.

2. The defendant files and Acknowledgement

3. The claimant waits until the 33rd day and asks if a defence has been filed. Told no so applies for a default judgement.

4. About a week later, this is granted with a forthwith order

5. Claimant transfers claim up to High Court for enforcement.

6. HCEO calls at defendant who says, Its here my defence, ive got to send it in.

7. Defendant pays bailiff full amount including charges on 28th September 12

8. Sometime after he applied for it to be set aside and on the 9th of October 12, this was granted without an hearing.

9. 15th October 12 funds have stood for 14 days and are received in claimants bank account as no notice been given to HCEO that there has been any set aside.

 

 

I really hope this is clearer for you andy and again, thanks for your help

[AndyOrch]

Thanks Isiris yes I follow all that.

 

So basically they applied for set a side after payment ...submitted their defence late....the Court has accepted and now AQs are released.The Claim proceeds.

The Defendant is liable for your HCEO costs and any other costs upto execution.(At this stage)

 

Andy

[Isiris]

Thank you. Thas the only thing he was worried about.

[AndyOrch]

I would be raising the 2 points though :-

 

Why was the set a side allowed?

Why was your friend not served a copy of the application and hearing notice therefore disadvantaged and unable to oppose.

 

Let me know what transpires Isiris.

 

Regards

 

Andy

[Isiris]

Thanks Andy

 

How would he do this?

The set aside was approved at Salford and the paper work now at Huddersfield. Should he write to the court to object?

Its such a weird one that we are in your hands :)

 

Thanks again.

[AndyOrch]

You are now at the AQ stage this signifies that a defence has been accepted.Complete your AQ and make application within that AQ explaining the circumstances and your objections and request that the defence be struck out and Summary Judgment applied on the basis of bad procedure and lateness of the Defendant to respond and also the none notification of their application or Court notification.If you had received notification you would have made application to object and deny the set a side.

 

 

Post up your draft Isiris and I will check your wording and add CPR references.

 

Regards

 

Andy

[tomtubby]

A set aside can be done by the judge on his own motion.

[wonkeydonkey]

A set aside can be done by the judge on his own motion.

 

I agree this can be the case but the OP comments to having received the aq.which suggests the set aside was not given as absolute and is pending further review....alternatively the OP has referred to set aside when the action taken was a 'stay'?

[Isiris]

Will do, Ill get him to bring the paperwork tomorrow when I will meet him on somthing else. Thanks again