Application made by Debtor to overturn a County Court hearing judgement***Dismissed***

[idveuk]

Hi all,

 

I'll attempt to summarise with as much relevant detail as possible.

 

Just over a year ago we had a plumber who bodged aspects of a bathroom refit. We refused to pay the full amount but sent him a reasonable amount to cover the work that was to an acceptable standard. He refused our offers and demanded the balance and subsequently took us through small claims process.

 

We defended the claim and submitted a counterclaim as on reflection and basing on the law of chitty contract we had actually made overpaymemt to him.

 

He failed to attend a preliminary hearing (car broke down), we later applied to use an expert witness and submitted report. A final hearing was set and I prepared all defence papers and statements. A few days before the hearing I checked to ensure he had paid the hearing fee and was advised he had requested to cancel the claim.

 

The Counterclaim continued on its own and I paid the hearing fee for this. On the morning of the hearing the Claimant emailed the court 2 hours before requesting adjournment, saying he wasn't aware a counterclaim could continue and saying I hadn't sent him the expert report. He also emailed me saying he'd cancelled his claim and asked me to do the same with the Counterclaim. (This was 15 mins before I was leaving to go to Court).

 

I attended court and was cross examined by the Judge, answered some queries she had and then made judgement in my favour to a sum of just shy £700 on the basis of overpayment, poor workmanship etc.

 

Two months later (and 3 days after the date set for them to pay) I contacted the Plumber advising I would apply for enforcement action. He replied advising no payment will be made and an appeal had been submitted. I contacted the court who advised he had sent a letter applying to overturn the judgment on the basis he was unable to attend the hearing and that the judgment was unfair. A hearing date will be set and I understand I will need to attend this.

 

Anyone with similar experience or advice/thoughts on what I need to prepare?

[BankFodder]

You should contact the court and ask them to provide you a copy of whatever application the plumber has made. Clearly, he has asked for a set-aside. You say that he sent a letter to the court but actually he should have sent a form N244 with a fee – presently about £255.

 

If he hasn't made a formal application accompanied by fee then I would say that that is one ground for challenging his application.

 

A set-aside is granted if the defendant can show that they didn't receive the claim papers and secondly if they can persuade the judge that if they were permitted to defend the matter that they stand a chance of success at trial.

 

The best thing you can do is to get a copy of whatever application he has made and then come back here and we will help you respond to it. However, at the set-aside hearing, you will need to show that if he was permitted to file a defence your counterclaim, that he would be more than likely to lose.

[idveuk]

You should contact the court and ask them to provide you a copy of whatever application the plumber has made. Clearly, he has asked for a set-aside. You say that he sent a letter to the court but actually he should have sent a form N244 with a fee – presently about £255.

 

If he hasn't made a formal application accompanied by fee then I would say that that is one ground for challenging his application.

 

A set-aside is granted if the defendant can show that they didn't receive the claim papers and secondly if they can persuade the judge that if they were permitted to defend the matter that they stand a chance of success at trial.

 

The best thing you can do is to get a copy of whatever application he has made and then come back here and we will help you respond to it. However, at the set-aside hearing, you will need to show that if he was permitted to file a defence your counterclaim, that he would be more than likely to lose.

 

So the good news is that he received copies of the counterclaim papers with witness statements and expert report as these were sent by recorded post (for which I evidenced post office proof of postage to the Court at the hearing).

 

I'm struggling to understand what grounds he will plead, however I do know he is stubborn so it didn't surprise me!

 

As soon as I have the hearing notice I'll provide an update.

 

Thanks.

[AndyOrch]

Thread moved to the appropriate forum.Please continue to post here.

 

Regards

 

Andy

[idveuk]

So the good news is that he received copies of the counterclaim papers with witness statements and expert report as these were sent by recorded post (for which I evidenced post office proof of postage to the Court at the hearing).

 

I'm struggling to understand what grounds he will plead, however I do know he is stubborn so it didn't surprise me!

 

As soon as I have the hearing notice I'll provide an update.

 

Thanks.

 

OK, so I received a copy of the N244 application with the hearing notice and he'd written a few pages of evidence to rely on. I'll summarise the main points below:

 

- He claims he was unable to attend the counterclaim hearing due to difficulties with work and family.

 

- He claims (and appears to blame) misleading advice provided by court officers, presumably also relating to the fact he didn't realise the counterclaim would proceed on its on.

 

- He furthermore mentions the emails he sent and request to adjourn the hearing and also refers to a previous adjournment request for the preliminary hearing (car broke down) and mentions £50 he paid but wasn't filed.

 

- He then also claims he was wasn't advised to send in an appropriate form (blaming court officers advice presumably)

 

He then refers to the Judge's summary judgment and suggests:

 

- Reference to no mention of his defence/reply to counterclaim bring incorrect as it was sent to court (I note here it was mentioned by the judge and referred to in the judgement)

 

- Claims no evidence provided regarding my witness statement and expert report being served on him by order deadline.

 

- Claims a calculation made by the judge for damages by his hourly rate is incorrect.

 

- He then progresses to say the judgement is unfair as he would effectively be working for free and paying for materials used too (the judgment order amounts to about what we paid him in the first place, but covers all the costs his poor workmanship caused)

 

- Finally claims he notified he court he was unable to attend a week before the hearing and again on the day of the hearing.

 

Clearly he cannot blame his failure to understand CPR and certainly cannot blame this on court staff (who are not allowed to provide legal advice).

 

His other points seem to play on letters not being received by the court, not receiving documents sent by me etc etc. Finally playing on the heart strings by him doing a poor job over 2 weeks (actually 9 days to be precise and on average 5-6 hours per day - which coincidentally the judge asked me about and used to calculate the hourly rate for costs) and not being paid.

 

What are your thoughts on how best to approach this hearing and application?

 

Thanks

[AndyOrch]

Set a side will fail...he obviously has no knowledge of the legal process...I doubt very much a court will overturn a Summary Judgment decision.

 

Andy

[idveuk]

Set a side will fail...he obviously has no knowledge of the legal process...I doubt very much a court will overturn a a Summary Judgment decision.

 

Andy

 

That's what I'm hoping. I assume I'll need to submit a statement/reply before the hearing though? There was no mention of it on the hearing notice.

[AndyOrch]

Summary Judgment is already in place therefore you shouldn't be required to offer further evidence or objection...its the defendant against the court ruling.

[idveuk]

Summary Judgment is already in place therefore you shouldn't be required to offer further evidence or objection...its the defendant against the court ruling.

 

OK thanks. I'll prepare some appropriate notes in any case should I require them. I'm hoping the court will see through the excuses and decline the application.

 

Hopefully that will be the end of it!

 

I'll post an update after the hearing in October.

[AndyOrch]

You could brush up on relief from sanctions..in case they try that route...

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03

 

And also summary judgment...the rules

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24

[idveuk]

You could brush up on relief from sanctions..in case they try that route...

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part03

 

And also summary judgment...the rules

 

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part24

 

I've assumed the judgment is a summary judgement as it was decided at a final hearing, would this be correct?

[idveuk]

I've assumed the judgment is a summary judgement as it was decided at a final hearing, would this be correct?

 

I think I may be wrong, from a quick read up on different judgements it would seem to be a judgement on merits as it was heard at a hearing?

[AndyOrch]

I've assumed the judgment is a summary judgement as it was decided at a final hearing, would this be correct?

I would assume so what did it state in the Notice of Judgment?

I think I may be wrong, from a quick read up on different judgements it would seem to be a judgement on merits as it was heard at a hearing?

I personally have never heard of a Summarty Judgment being set a side.....if anything they would have to appeal...not set a side,

[idveuk]

I would assume so what did it state in the Notice of Judgment?

I personally have never heard of a Summarty Judgment being set a side.....if anything they would have to appeal...not set a side,

 

It didn't have a particular heading, but was a summary of everything the Judge looked at and discussed with me at the hearing, followed by an order to pay damages, costs etc.

[idveuk]

Good news, attended hearing yesterday where the Judge heard the argument and reasoning from the Debtor but dismissed the application with the summary of no valid reason for not attending and only slim prospects of success had he been present at the Judgement hearing. Thanks for advice and help all!

[AndyOrch]

Well done idveuk ...as we expected.

 

Thread title amended

 

Regards

 

Andy