Judgment set aside

[CS47]

We bought a Toyota Celica T Sport in August which developed a serious problem on the first day (big end bearing failure). We obtained judgment against the dealer for just over £5,000 in December. He didn't turn up. He then made an application to set aside on the basis that the court staff told him that if he submitted evidence and said he couldn't come his case would be considered on the papers. He didn't give the reason for not coming until the day of the application (both him and his co-director were in bed with flu on the same day!") There was no medical certificate. The form didn't state the reason for non-attendance. He submitted papers to back up the application the day before the application (over a month after applying). Basically, he has broken all the procedure rules for submitting the application.

 

We have an engineer's report approved by the Court to rely on. He has no evidence apart from an MOT, but his case is that we must have broken the car by driving it too fast on the motorway. He has no evidence of this.

 

The judge seems to have believed he was misled by the Court and that he and his co-director were in bed with the flu on the same day, with no medical certificate backup and only mentioned at the last minute. She stated she had not had the time to read the papers at all, would not consider the strength of his case at all and set aside the judgment.

 

We are both shellshocked. My husband carefully followed all the rules of procedure in this case, submitting papers to the court and the defence properly. The defence have broken all the rules but have succeeded in getting our juidgment set aside.

 

The judge in setting the judgment aside did not follow the rules. We purchased the book "Small Claims Procedure" by Patricia Pearl. It deals with making an application to set aside:

 

"The Court may grant an application to set aside the judgment only if the applicant:

(a) had a good reason for not attending or being represented at the hearing or giving written notice to the court under rule 27.9 (i);

AND

(b) has a reasonable prospect of success at the re-hearing"

 

"The form must cover not only the reason for missing the hearing but also why the party has a reasonable prospect of success."

 

Do we have any right of appeal against this decision?

[AndyOrch]

Rather than spending time on fighting the set a side I would concentrate on progressing your claim.Did you object to their application to set a side and submit a WS within the time specified?

 

Regards

 

Andy

[CS47]

Yes. We sent a letter objecting to the set aside, with statement of truth and summary of reasons as soon as we received the application.

 

One of the reasons the judge allowed the application is that the defendant had submitted a defence with lots of paper, so she didn't have time to read it. We feel his tactic in defence is to submit a lot of paper, even though none of it makes any sense, and has no evidence or proof. We have submitted a carefully put together tabbed bundle. His paperwork is a shambles.

 

As we are now asking for well over £5,000 we think we can justify the expense of a solicitor even though we might not get it back. We have read somewhere that if the claim goes over £5,000 you are advised to get a solicitor and that we may be able to get up to £690 costs. Is this right?

[AndyOrch]

If the claim runs to Fast Track (over 5K) you will receive all costs if your claim succeeds.Like wise if you fail you will pay the defendants costs.

 

Just reverting back if you made objection to the application....was there an hearing...was the Courts response to your WS?

[CS47]

The Court sent us a reply to our statement objecting, saying "This can be considered on 4th February" (the date of the hearing of the application). We put all the points our letter to the judge (or as many as we were able to), but to no avail.

 

Can we transfer from Small Claims to Fast Track, now that our claim is over £5,000? Is it a good idea to do that? (if we can)

[AndyOrch]

If the claim was 5K it is SCT. You shouldn't need a solicitor SCT or FT...is that the only reason to change track because of his fees?

[CS47]

We don't know what fees will be yet. But yes, it''s anticipating how much they are likely to be. We can keep it to an minimum as we are really organised with doing papers and that side of things, but we really just want the advice and help with presenting the case. We think the defendant has made the case unnecessarily complicated now, so feel we need help. We also feel so stressed now that we just want a solicitor to take over the case. Our claim is now £5,400 ish.

[AndyOrch]

Has the court placed track yet or are we still at unallocated?

 

" Our claim is now £5,400 ish." what was the default judgment amount?

[CS47]

We were Small Claims. We had hearing on 14/12/12. Defendants didn't turn up. We got judgment for "£5185.96, which was set aside on 4/2/12. The original hearing had a time estimate of 1 and a hallf hrs. Judge has now said it should be 2 hrs next time, so she obviously thinks it is getting more complicated.

[AndyOrch]

Because it was a default judgment allocation was dispensed with.Now that the set a side is allowed the Defendant has submitted a defence you will receive directions on how to progress the claim.I would think the amount is borderline even though you exceed the threshold it could still be dealt with in Small Claims Track...it shouldn't be complicated and you as the claimant should not allow it to be complicated.

 

Regards

 

Andy

[CS47]

I am not sure about that, as the judge said the case would be listed for re-hearing as soon as possible. The defendants didn't turn up on 14/12/12. But they had submitted a defence. The judgment was given just "On hearing the Claimant and in the absence of the defendant". Is that a default judgment? Do we go back to allocation?

 

I agree, it should not be complicated, but the defendant is making it so. But the main thing is we just are so stressed by it that we feel we need professional help.

[AndyOrch]

Not sure about what?

[CS47]

About it going back to allocation.

 

I have just opened the post and it is to be relisted in Small Claims Court for a two hour hearing on 3rd May!

[AndyOrch]

" I have just opened the post and it is to be relisted in Small Claims Court for a two hour hearing on 3rd May!"

 

so as per my post#10 then...." you will receive directions on how to progress the claim." and is SCT as stated.

 

CS you may find this sticky invaluable to the process of litigation and what you should expect :- http://www.consumeractiongroup.co.uk/forum/showthread.php?356814-The-Process-of-Litigation..-Court-Claims-Defences.

[CS47]

That is helpful, thanks. But presumably that means that it is not going through allocation again?

[AndyOrch]

No AQs have probably been dispensed with...it is tracked SCT....so any costs you can recoup will be minimal.