Penfold V Amber Home Loans

[Penfold92]

OK got my hearing date through today and it is 28th May, which all things being told is not too bad I guess...So I will wait until 2 weeks before to get my arguement against together and send it to the court 7 days before and give the poor sol turning up that afternoon a copy...LOL

 

Penfold

[car2403]

I'd be tempted to get the arguments in earlier than ordered - when they see them, it may push a settlement from them, as they won't want to go to the final hearing, IMO.

 

I'm a big fan of settlement negotiations, as you well know, Prabs.

[Penfold92]

Oh yes I know Car, but remember I have already done that including the POC's. Remember?

 

I am hoping they don't ...

 

Penfold

Edited June 14, 2008 by Penfold92

[car2403]

Oh yes I know Car, but remember I have already done that including the POC's. Remember?

 

I am hoping they don't ...

 

Penfold

 

LOL! You nutter!

Edited June 14, 2008 by car2403
Edited at OP's request

[Bona]

Its dosnt work like that im afraid in my opinion dont give to much away they might well settle but nothing will happen until a few days before

[Penfold92]

Thanks Bona,

 

I know what you mean...

 

Also I doubt they will settle this before the set aside hearing.

 

Penfold

Edited June 14, 2008 by Penfold92

[Lula]

What it is to know everything eh ?;)

[Penfold92]

Thanks Lula, i'll take that as a compliment...

[Lula]

Thanks Lula, i'll take that as a compliment...

 

Oh it was, I wouldnt want to argue with you because a) I am terrible, always think of the clever things to say AFTER the row has finished and b) you live not too far away from me heheheh:rolleyes:

[Lula]

Thanks Lula, i'll take that as a compliment...

 

Oh it was, I wouldnt want to argue with you because a) I am terrible, always think of the clever things to say AFTER the row has finished and b) you live not too far away from me heheheh:rolleyes:

[car2403]

Lula, the grovelling is enough - no need to post it up twice!

 

Anyway, Prabs is far too nice and helpful to get in to an argument.

[Penfold92]

Lula, the grovelling is enough - no need to post it up twice!

 

Anyway, Prabs is far too nice and helpful to get in to an argument.

 

 

Thanks mate! Penfold

Edited June 14, 2008 by Penfold92

[Penfold92]

Its dosnt work like that im afraid in my opinion dont give to much away they might well settle but nothing will happen until a few days before

 

Hi Bona,

 

I think on reflection I agree with you in the sense that the hearing date of 28th May is for the application to set aside and so I can't see them settling merely being vexatious litigants and that is why I want to make sure the Judge hears me out at the Hearing and realiases that even though the CPR's state the issue of defedning the case this cannot apply in this case as they cannot defend the DPA breaches. That combined with the convenient not receiving the claim or the judgment puts them in a real corner in my opinion...

 

Maybe I will send them the skeleton arguement a week before to be nice, but then again nah...

 

The Court has not made any order regarding this so I imagine that I can turn up on the day and give everyone a copy of my arguements? Does that sound about right?

 

Thanks,

 

Penfold

[Bona]

My advice is stay quiet you dont have to do anything untill the day suprise is my motto dont let them think about a reply to your arguments they wont give YOU that courtesy

[Penfold92]

Agreed

[car2403]

The Court has not made any order regarding this so I imagine that I can turn up on the day and give everyone a copy of my arguements? Does that sound about right?

 

It's better to send them in advance - if they can't defend, they can't defend, but lets stick to CPR, even if they can't, eh?

[Penfold92]

It's better to send them in advance - if they can't defend, they can't defend, but lets stick to CPR, even if they can't, eh?

 

 

Come on mate, even you would agree that in this case, where there is no specific direction to supply info, it makes sense to hit them at the hearing and in doing so show the Judge that the CPR's have been followed by me and the COurt and the only people playing silly buggars are the defence and so DO NOT SET ASIDE THE JUDGMENT PLEASE....

 

Or you think by giving them a chance to defend then they cannot argue they need time to look into it? The thing is remember I have already sent them the POC's without being requested to and sent them an offer of settlement prior to this hearing and so they have had plenty of time to settle, negotiate or supply proof...none of those would have been done and so I feel that the silence approach may, in this case, work for me...

 

Penfold

[Bona]

Im sure it will its there application so they will speak first they will say why the Judge should set it aside only then do you have a chance to say your bit have every thing ready I certainly wouldnt say a word before hand dont forget you are a litigant in person you cannot be expected to know everything they have the benifit of a legal department who were just lazy and are know struggling to get out of it

[car2403]

The Court doesn't have to rely on anything you say at the hearing that hasn't been submitted in advance of the meeting - if you don't do that and they don't allow you to rely on statements, your missing out on an obvious opportunity to reply to their application, IMHO.

[Bona]

I never had a problem in more than 20 court appearances as a litigant in person both as claiment and defendant

[Penfold92]

I agree with Bona on this one Car, this is their application to set aside. The Judge has not asked for any documentation to be filed and served before the hearing, so rather than talking off the cuff, I will say "here are notes I prepared against the setting aside of the judgment"

 

I can't see a problme with this, I have given them chances to resolve pre this hearing.

 

Penfold

[car2403]

I never had a problem in more than 20 court appearances as a litigant in person both as claiment and defendant

 

CPR Part 16.7(1);

 

A claimant who does not file a reply to the defence shall not be taken to admit the matters raised in the defence

 

IMHO, the best time to submit a reply to a defence entered with an application to set judgment aside on the basis that the defendant can said to have a realistic prospect of success after Judgment by Default is granted, has to be at least 7 days prior to any application hearing. This gives the Court the opportunity of reviewing your response to it at the hearing - the defendant would also have a right to reply to your response, which should be submitted 3 days prior to the application hearing - here's the rules for a summary judgment hearing, for example; (CPR Part 24)

 

EVIDENCE FOR THE PURPOSES OF A SUMMARY JUDGMENT HEARING 24.5 (1) If the respondent to an application for summary judgment wishes to rely on written evidence at the hearing, he must ---

(a) file the written evidence; and

(b) serve copies on every other party to the application,

at least 7 days before the summary judgment hearing.

(2) If the applicant wishes to rely on written evidence in reply, he must ---

(a) file the written evidence; and

(b) serve a copy on the respondent,

at least 3 days before the summary judgment hearing

 

If you don't follow this prior to the hearing, the application can go through unchallenged, as you're asking the Court to effectively "rubber stamp" the application as you haven't challenged it, or disclosed your challenge sufficiently effectively, IMHO.

 

Let's put it another way - we want to overly complicate the claim in such a way that it's impossible to defend it, (hence Penfolds comments about being unable to defend the DPA issues, here) so that the Court simply can't set judgment aside on that basis. Add that to the fact that the Court will usually not set judgment aside because they didn't receive the claim form/judgment, and you have a decent case to be heard on the day of the application hearing, rather than letting them drag the issue out to a full trial hearing.

[Penfold92]

Hi Chris,

 

That was brill and you know I appreciate it, but this is for a summary judgment hearing which this is not. This is a hearing to set aside the judgment. They (defendant) have to pursuade the Court as to why this should occur and I need to respond to that. As Bona says they talk first and I get to respond. So with no direct order from the Court I do not see why I need to supply them with my exact arguements since I have already supplied them enough info on the case by supplying them the POC and a some of my queries including why they did not respond to the DPA issues (all via recorded del).

 

So I cannot see why I will not be allowed to put my arguements to them and the Court on the day. I will use the litigant in person to my benefit and I cannot believe the sol they send (if any) will be able to argue their side without proper knowledge of the case and so as said before put them into a corner and see what happens...

 

Prabs

[car2403]

My point is, they have issued a defence - you'll get a chance to respond when/if the Court orders you to do so, but doing it early on has no prejudice. In fact, it means the Court has to consider your argument (which they may or may not do at the set aside hearing if it isn't submitted in writing beforehand) when considering the set aside.

 

I know it's a SJ direction, that's why I said it was an example. As there has been no directions, this doesn't apply here, but it gives a framework as to how to respond, IMHO. Happy to agree to disagree, obviously.

 

Either way... bring it on, Prabs - as you know, I'm in the same boat... 12 days and counting!

[Penfold92]

...

Edited June 14, 2008 by Penfold92