I need help to Serve a writ to recover a loan

[AndyOrch]

What does it state on the General Order...does it allow you to vary ?

[burmafriday]

Hi Andy

great to see you - yes it does

 

this is what it says

judgment set aside and defendants file direction questionnaire by 03 March

 

It stated that because this order is made without a hearing the parties have the right to apply to have the order set aside varied or stayed.

A party making such an application must send or deliver the application to court (together with any appropriate fee) to arrive within

seven days of service of this order. If the application is one which requires a hearing and

 

a. The party making the application is the Defendant

b. the Defendant is an individual

 

then upon the filing of the application the claim will be transferred to the Defendant's home court.

In all other cases requiring a hearing the claim will be transferred to the preferred court.

 

So - I have to do it within seven days but - I only received the order today 18 Feb.It was dated 12 Feb.

I guess i can fax it to the court today (19 Feb) What form do i use... N244? and what do i say? on what basis may i apply object to

this order.

 

i shall be extremely grateful for your help

all the best

BF

 

HI

I phoned the Court and asked why i was not notified of the application for judgment to be set aside and why it was set aside after such a long period

the lady from the court simply said i should write in and submit my objections.

i shall be grateful to receive any comments and suggestions from CAG

Many thanks

BF

[AndyOrch]

So the order was made without an hearing...I would be questioning why the court thought it did not require one.Need to give this some thought BF lets not rush it and dont worry about the date(have you retained the envelope and if so write recieved date)....dates don't seem to apply to the defendant so they shouldn't for you when a court can allow a set a side after 3 months and without an hearing.

 

 

Yes you will require an N244 it will require an hearing...look up the relevant CPR to set a side (13) and look at CPR 1 and 3 for your objections.Make a start and we can finalise something for tomorrow.

 

Regards

 

Andy

[burmafriday]

hi Andy

I did try to reply to you late last night and early morning but something happened to the CAG site and i my reply did not transmit. I gave up as it was 4am.

 

in answer to your question Yes it was made without a hearing.

I researched on CPR as you mentioned. I found that the CPR 's which applied were CPR 23.9 and 23.10

 

i hv to submit my objection using N244 as you say.

what was unclear in the CPR's were

a. they mentioned that the Defendant must submit his application to set aside judgment "promptly" But there is no mention of how long is "promptly"

b. Then there is a time limit ... but i could not establish what the time limit is

c. then the Defendant must give a good reason why.. his reason is he did not receive the judgment

 

I have structured my reply/objection but can you advise on the above?

 

thank you very much

all the best/BF

Edited February 20, 2014 by burmafriday
spelling

[AndyOrch]

Ok looking at the bigger picture and accepting that its been set a side do they have a defence with any merit? by saying he did not receive the judgment...you mean the claim pack N1?

[burmafriday]

Hi Andy

 

to be honest i am pretty much ready to submit my appeal.

but what to i say?

 

"I am appealing against the order to set aside judgment of this case as per the order dated...." ?

 

thanks

BF

[AndyOrch]

I appreciate that BF but your application may be in vain that is why I try to establish all the facts first.Should said application fail then you will be ready for the next stage which would be responding to any defence.

 

Simple things like " they did not receive the Judgment " what do you mean ? the claim pack N1 or the General Order N30 ? There is a worlds difference.

 

This is vital to your application and reasons in objecting to the set a side.

[burmafriday]

hi Andy

your posts #115 and #117 just came through.

thank you for that.

 

Ok to answer your post #115,

no they do not have a defence with any merit.

i am not clear what reason was used as a basis to apply to have the judgment set aside as i was not informed and there was no hearing

 

I phoned the court to establish what reason he used but they would not tell me

 

but i was awarded default judgment because he failed to reply and submit his N181 Allocation Questionnaire (see posts # 71, 74 and 75)

even though the court reminded him and extended his deadline for submission.

and,

when i wrote to him giving him notice to pay up he wrote back saying he was unaware that judgment had been ordered.

 

Then i received the order that judgment has been set aside.

 

i will phone the court again - may be a different person may give me why judgment was set aside.

 

so yes i agree with you. its vital to my application

 

regards

BF

[AndyOrch]

You need to know what was stated within their application...was it supported by a Witness Statement...why was there not an hearing.....why was you not informed or asked your opinion or allowed to submit a WS in objection on the set a side...once that is clarified then we can progress.

 

Andy

[burmafriday]

Hi Andy

i phoned the court and asked if they can give me the reason the defendant used in his application to set aside judgment.

I was told that i have to make a formal request using form N244

a. asking to see a copy of the defendant's application

b. asking for extension of time to submit my appeal against the set aside order

so i will do that today and will keep u advised

thanks so much for yr help.

all the best/BF

 

hi Andy

i just read yr post - it came in after i sent my post

yes thats what i told the court when i called them and i got a different response.

thanks very much again

BF

[AndyOrch]

Ok so what do you have on your N244 up to now.........BTW its not an appeal...an appeal is to change a judgment...you are making an application to vary an order.

You should have been served a copy of the application and any WS in support of by either the court or the defendant...

[burmafriday]

hi Andy

thanks for yr message. OK after my conversation with the court, i have to submit a N244 form and

a. ask to see a copy of Defendant's the application to have the judgment set aside

b. apply for extension of time to enable me to apply to vary the judgment

I cannot apply to vary the order unless i see the Defendants application and his reasons - as you say

his reasons are vital

i will get this done tonight

All the best

thanks very much

BF

[AndyOrch]

You shouldn't need to make application to see the defendants application/WS it should be served on you by either the Court/Defendant....general legal process protocol...hence the saying " file and serve "

[burmafriday]

Hi Andy

below is the text for my N244 - please give me your thoughts and comments. Am I too succinct?

 

Judgment of this case dated 20 November 2013 has been set aside by an order made on 12 February 2014. I am the Claimant and I would like an opportunity to submit an application to vary this order. I was not advised that the Defendant applied to set aside judgment. I received this order on 19 February 2014. Seven days was allowed for a written application to vary this order. Clearly, this deadline could not be met. I ask the court to grant an extension of seven days to give me time to make a submission. Furthermore, I request to have a copy of the Defendants Application as I need to know what was stated. This is vital to the Claimant's application and reasons in objecting to vary the set aside order. I respectfully request an explanation as to why the court felt that an order should be made without a hearing, why the court felt it did not require one and why the Defendants application was considered without informing the Claimant nor giving the Claimant the opportunity to object.

 

I am not attaching a draft order and i stated that this application should be dealt with, without a hearing.

 

look forward to hearing from you

Thanks BF

[AndyOrch]

Have a read of this thread it may be useful as it is similar :-

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?354380-MBNA-Charges-refused/page11

[burmafriday]

HI Andy

thanks for your posts

if I shouldn't need to make application to see the defendants application/WS, then they should it to me

thanks for your link in yr post #126 - i checked it out - very interesting reading

still on-going i see. But the WS in there is very good and useful for me.so thanks

 

thanks for spending the time to look at my stuff. I see you are real busy in CAG and so I am very grateful

that you give me some of your valuable time. When do you get any R+ R?

 

Is my N244 ok ? any comments as i will submit it tmrw.

 

thanks Andy

 

good night

BF

[AndyOrch]

Hi BF

 

Very quickly as its getting late and my eyes are now starting to close.

 

You don't make an application to request permission to make an application.You certainly dont make application to request a copy of the defendants N244/supporting evidence.

 

The court is at fault here not you...

 

they failed to inform you of the application therefore disadvantaging you in objecting.

they Failed to send you a copy of the N244.

they failed to set an hearing and made the order of its own accord.

 

Their errors why should you pay a fee to gain recourse?

 

Andy

[burmafriday]

HI Andy

its good that you are there. Thank you for that piece of advice.

Your comments are clear and you are totally correct. i did not think in that way.

I will write to the court to that effect.

All the best/BF

 

hi Andy

I have written to court and sent my formal complaint highlighting as per your observations together with my N244

used the old fashioned "Blanket Approach" ..........lets see what happens now.

will let you know

hv a great weekend.

BF

[burmafriday]

hi Everyone

 

just to keep you up to speed, i phoned the court and asked the latest situation.

1. I was told that the Defendants application to set aside judgment was submitted on 05 Feb without the need for a hearing and a judge considered it and granted it on 12 Feb

2. The reason used was that he did not receive any paperwork as the court was sending them to his solicitors and not direct to him.

3. So he claimed he never received any documents from the court.

4. I asked the court to verify that they received instructions either from his solicitors or himself confirming that he was no longer represented by his solicitors.

5. The court could not confirm to me and the lady I spoke to, suggested that i should write in and ask.

6. I did not receive a notification from the Defendant or his Solicitor about any change of a service address.

7. I was sending paperwork to his address and copying his solicitors.

8. so he would be receiving all documents i sent him and he ignored all of it.

9. The order issued when the judgment was set aside was that the Defendant is to submit direction questionnaire by 03 March.

10. According to the lady i spoke to, it would be five days later before the court can confirm whether or not he had submitted this on time.

11. So basically its likely that I will not know until around 07/08 March

12. regarding my application to see the Defendants Application and make an application to vary the order... is under consideration and most likely be heard next week though the lady could not confirm.

13. But she said that if the court did receive his DQ, the chances are the entire case would be transferred to his local court.

 

In my opinion, his solicitors have cooked this up to delay the whole process. If they had stopped representing him, surely the solicitors have a duty of care when they receive docs. from the court to

a. notify the court that they should send these docs. to the Defendant direct

b. notify the Defendant that these docs have been sent incorrectly to them

 

In any event, the solicitors should hv written to me and the court to confirm that they were no longer representing the Defendant

 

Any comments?

BF

Edited February 28, 2014 by burmafriday
spelling

[AndyOrch]

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part42

 

CPR 42.2 Change of solicitor – duty to give notice

 

Regards

 

Andy

[burmafriday]

hi Andy

many thanks for this. You are a star.

i hv written to the Court asking to see copies of any notifications given.

So basically, the solicitor and/or Defendant must give notice in this format.

 

If you recall, at the beginning of my post, I stated that the Defendant was a close friend.

I definitely believe that the Solicitors and the Defendant conspired to do this. I remember when the Defendant was charged with drinking and driving he was represented by the same firm of solicitors,

who dragged the case along for a year., then withdrew on the basis that they could no longer represent him. These Solicitors then referred the Defendant to another solicitor, who then

took over and spent another year dragging their feet in defending this guy ... who was found guilty anyway, But he was able to drive for two additional years before he was banned.

 

I can recall the case as i was a witness though this was in 2001. Do you think I should this highlight this in my statement and N244?

I will definitely apply to vary the order.

 

thanks again

all the best/BF

[AndyOrch]

Its not really a sanctional point but you should raise and refer to it.

 

Regards

 

Andy

[burmafriday]

Hi Andy

ok i got you but - how do you mean - its not "sanctional"

regards

BF

[AndyOrch]

The court would most probably let it go as long as they have informed the court.

[burmafriday]

HI Andy

thanks for your message Andy.

It sounds like the solicitors for the Defendants can be contemptuous towards the Claimant

The CPR 42.2 clearly states the rule they must follow.

I am waiting for the reply from the Court as i made a request asking to see copies of the notifications from the other side.

In the meantime, I will think about an appropriate response ... do you know of any cases where the case got kicked out

because the solicitors/Defendants behaved in this manner?

I will try and do some research too and if i find any, i will copy you.

thanks again Andy

BF