Claim issued against builder in the High Court - CCJ - App to setaside - Disposal Hearing

[Jacks1972]

My solicitor issued court proceedings against a builder. The builder did not acknowledge service so my solicitor applied for a default judgment. The Judge awarded a default judgment for an amount I overpaid the builder and made an order for a Schedule of Loss to be prepared and served on the court and the Defendant. The Defendant then had 14 days to respond to the Schedule of Loss otherwise the Judge ordered that the Defendant was de-barred from arguing any part of the Schedule or the amount. A date for a disposal hearing was also set. The Defendant did not respond to the Schedule of Loss. He then appointed another solicitor (he has been represented on and off in the last 18 months by 3 different solicitors) who asked for me to agree to set aside the first judgment. My solicitor refused and advised that if the Defendant was going to submit an application to have the first judgment set aside then this should be heard at the disposal hearing to save on costs. The Defendants solicitor waited until after office hours the evening before the Hearing and attempted to serve the Court and my Solicitor with a Defence, Counterclaim and Witness Statement. The Defendant failed to have the application stamped by the court and did not pay the court fee. However, a barrister was instructed by the Defendant. The Judge said he could not hear the Application to setaside the Judgment because the fee had not been paid and the documents had not been served properly. The Judge then ruled on a second Judgment in my favour. My barrister had to point out that a Part 36 offer had been put forward to the Defendant's then solicitor prior to court proceedings so the order was made plus costs. However, the Defendant's Barrister did not have any knowledge of the Part 36 offer and it was very clear that the Defendant's current solicitor had no idea either.

 

 

Now I know that there is a possibility that the Defendant can submit an application to setaside both judgments. The first has a good chance of being granted because he is playing the failure to serve properly card (the court inputted the incorrect postcode on his papers - although the correct address).

 

 

Obviously I can enforce judgment after 14 days but can only assume the Defendant will attempt to setaside both judgments in the meantime.

 

 

I would like to know how the Part 36 will affect the outcome and if he applies to have the second judgment setaside what will happen. I have a copy of his documents and they are filled with lies many of which I can prove. What is also concerning is that the Solicitor has signed the Statement of Truth which I think is highly unusual.

 

 

Any advice would be gratefully received if anyone has a similar experience.

[BankFodder]

Part 36 is very simply that if at court you are awarded les than some out of court offer - then in principle you would have to pay costs of both sides from the date the out of court offer was made.

However, in view of his unreasonable behaviour in litigating, I think that you have a very strong case for saying that a good portion of the costs - if not all, have been caused by him and should be yours in any event.

 

If he does succeed in a setaside application the you should instruct your solicitor to ask the judge to make any set-aside conditional on paying the sum claimed into court . In the circumstances, this is a very reasonable request and would protect you and make enforcement very easy if you win the case

[Jacks1972]

I've been awarded more at court so the defendant has to pay my costs. Has the defendant prejudiced himself by not telling his solicitor there was a part 36 offer? How will his solicitor treat this omission? Thanks for the advice on the condition of the set aside application.

[Ganymede]

My solicitor issued court proceedings against a builder. The builder did not acknowledge service so my solicitor applied for a default judgment. The Judge awarded a default judgment for an amount I overpaid the builder and made an order for a Schedule of Loss to be prepared and served on the court and the Defendant. The Defendant then had 14 days to respond to the Schedule of Loss otherwise the Judge ordered that the Defendant was de-barred from arguing any part of the Schedule or the amount. A date for a disposal hearing was also set. The Defendant did not respond to the Schedule of Loss. He then appointed another solicitor (he has been represented on and off in the last 18 months by 3 different solicitors) who asked for me to agree to set aside the first judgment. My solicitor refused and advised that if the Defendant was going to submit an application to have the first judgment set aside then this should be heard at the disposal hearing to save on costs. The Defendants solicitor waited until after office hours the evening before the Hearing and attempted to serve the Court and my Solicitor with a Defence, Counterclaim and Witness Statement. The Defendant failed to have the application stamped by the court and did not pay the court fee. However, a barrister was instructed by the Defendant. The Judge said he could not hear the Application to setaside the Judgment because the fee had not been paid and the documents had not been served properly. The Judge then ruled on a second Judgment in my favour. My barrister had to point out that a Part 36 offer had been put forward to the Defendant's then solicitor prior to court proceedings so the order was made plus costs. However, the Defendant's Barrister did not have any knowledge of the Part 36 offer and it was very clear that the Defendant's current solicitor had no idea either.

 

 

Now I know that there is a possibility that the Defendant can submit an application to setaside both judgments. The first has a good chance of being granted because he is playing the failure to serve properly card (the court inputted the incorrect postcode on his papers - although the correct address).

 

 

Obviously I can enforce judgment after 14 days but can only assume the Defendant will attempt to setaside both judgments in the meantime.

 

 

I would like to know how the Part 36 will affect the outcome and if he applies to have the second judgment setaside what will happen. I have a copy of his documents and they are filled with lies many of which I can prove. What is also concerning is that the Solicitor has signed the Statement of Truth which I think is highly unusual.

 

 

Any advice would be gratefully received if anyone has a similar experience.

 

All you can do is wait and see if he applies to set aside and deal with it at the time. Until then, just carry on with your side of things.

 

And it's not unusual at all for a Solicitor to sign the pleadings on their client's behalf.