Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

£19.99 + £1.50 (P&P)

+ Reply to Thread
Page 3 of 28
FirstFirst 1 2 3 4 5 13 ... LastLast
Results 41 to 60 of 552
  1. #41
    r&b r&b is offline
    Classic Account Holder
    Help the CAG!!
    Make a contribution
    r&b Highly informative r&b Highly informative r&b Highly informative r&b Highly informative r&b Highly informative r&b Highly informative r&b's Avatar

    Follow Real_CAG on Twitter

    Cagger since
    Dec 2008
    Posts
    1,193

    Default re: Trying to set aside judgement - APPEAL **WON**

    little bump here,
    anyone know the answer to the above?

    robin, if it were me, id try and make as much fuss as poss with any innaccuracies, but my guess would be that it depends on the judge on the day, some may say just chge it others may not.
    hopefully someone can give a definitive answer however.

    "Never in the history of the world has there been a situation so bad that the government can't make it worse."

    LINK FOR CCA1974:
    http://www.statutelaw.gov.uk/legResu...=1&SortAlpha=0

    LINK FOR CPR:
    http://www.justice.gov.uk/civil/proc...enus/rules.htm
    Follows
    0
    Following
    0

  2. #42
    Basic Account Holder RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative

    Follow Real_CAG on Twitter

    Cagger since
    Jul 2009
    I am in
    A sleepy village hidden from all
    Posts
    750

    Default re: Trying to set aside judgement - APPEAL **WON**

    Thanx again R&B.
    I've taken on board all you have said before and feel that I still need to write to court re app to set asideicon (not a defense). I've been busy drafting it and will post it here when done. All feedback welcome when I post it.

    Quick question. Seem "bump" in many threads. Im guessing its when someone is asking for other help. Am I right?


  3. #43
    Basic Account Holder RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative

    Follow Real_CAG on Twitter

    Cagger since
    Jul 2009
    I am in
    A sleepy village hidden from all
    Posts
    750

    Exclamation re: Trying to set aside judgement - APPEAL **WON**

    OK here goes. To follow is draft letter to court and claimant re hearing date for set asideicon. As previously stated, this is all new for me and trying to get it right first time. Comments greatly appreciated:

    Dear Sir or Madam,
    I would refer to my application for a set aside of the Judgment given in this case to the Claimant and am writing to expand further on my application. I appreciate that I will have an opportunity to do this at the hearing but I would like to bring the following to the courts attention at this stage to ensure sufficient time is allowed at the hearing.

    I believe that since the claimant first contacted me they have acted in a business practice that has been deceitful, oppressive, unfair and improper, whether unlawful or not. To support this statement I show below the sequence of events for the entire time the Claimant has been known to me.

    1. The Claimant sent a letter dated XX December 2008 addressed to “The Occupier” at my above address (Copy attached). This was the first time I had heard from this company. I had never heard of them before this nor had they ever written to my address before during the time I have lived here. They falsely stated in the letter that post had been returned “gone away”. Post had not been returned “gone away”, I now believe it was just a ruse on their part and I ignored the letter.

    2. Second letter received from Claimant dated XX January 2009. This was addressed to me and was headed “FORMAL DEMAND FOR PAYMENT” (copy attached). They have failed to properly identify themselves or in what capacity they were writing to me as their letter clearly states they are debt collectorsicon and they are collecting money due to “ROBINSON WAY EX Capital Oneicon”.

    3. I sent a letter to the Claimant dated XX January 2009 (copy attached). Basically, I pointed out that (a) it was unclear who they were and in what capacity they wrote to me, (b) requested a copy of a Credit Agreement, (c) responded to their letter dated XX/12/2008, questioning the reason for it, and (d) asking who they were. The Claimant never replied to this letter.

    4. Third letter received from Claimant dated XX February 2009 stating “APPOINTMENT FOR HOME VISIT” (Copy attached). Again letter unclear who they were and in what capacity they were writing to me as again they state they are debt collectors collecting money due to “ROBINSON WAY EX CAPITAL ONE”.

    5. There was no further correspondence to or from the Claimant until a Claim Form was received dated XX March 2009. The Claimant was stated as ROBINSON WAY & CO LTD (ASSIGNEES OF EX R/O: CAPITAL ONE).

    6. At this time exceptional circumstances, as explained later, meant that I was unable to take advice or be able to attend court to defend myself, therefore I felt I had no choice and reluctantly returned the admission in accordance with CPR 14.4, requesting time to pay in accordance with CPR 14.9 (Copy attached). I have proof of posting by first class recorded delivery on 31 March 2009 and proof of delivery on 01 April 2009.

    7. I then received a Default Judgment dated XX May 2009.

    8. On XX May 2009 I telephoned the claimant solicitors, Horwich Farrelly. I spoke to a person called XXXX on extension XXXX (she refused to give her last name) and she confirmed that they had received the request for time to pay but the amount offered was not acceptable to them. I pointed out that I believed they had not acted in accordance with Court rules and she said that there was nothing they could do and suggested I applied to set aside Judgment. I requested that they agree to the default judgment being set aside so it could be dealt with without a hearing and save on costs and court time, but they declined.

    9. Notice of hearing for set aside received dated 25 June 2009.

    10. Claimant applied for and received an Interim Charging Order on 29 June 2009.

    I would ask the court to agree with me in determining at the very least the claimant has acted unfairly.

    I would also aver that the Claimant failed to deal with the admission in accordance with CPR 14.4, requesting time to pay in accordance with CPR 14.9 and that obtaining a Judgment for Claimant In Default is an Irregular Default Judgment as the Claimant failed to follow CPR 14.9 and 14.10 with the rate determined according to 14.11. I believe that this alone allows the court under CPR 13.2 or 13.3 to set aside judgment.

    Further, the above events show that the Claimant failed to follow Pre-action Protocols as set out in Practice Directions – Pre Action Conduct.

    Quite simply, if the claimant had acted with professional diligence and also followed pre-action protocols I would have been clear with what I was dealing with and would have asked for some time to deal with the exceptional circumstances, explained below, to allow me the opportunity to take advice and consider my defence.

    The exceptional circumstances making it impossible at this time for me to make proper decisions, take advice or attend court to defend myself were that I was totally drained both physically and mentally and had received very little sleep for many weeks as I was caring for my mother in the later stages of a long and painful battle with cancer. From February 2009, my mother was unable to care for herself, was bed ridden and needed 24 hour care and attention. She remained at home with me until she passed away XX April 2009, with her funeralicon on XX April 2009. In addition to this for some considerable time I had been looking after my 2 young children (now 5 and 6 yearsicon), and my wife who is suffering and continues to suffer from severe depression requiring my care. Additionally, I was caring for my seriously ill father until he passed away XX November 2008.

    With regards to the Particulars of the Claim, given the opportunity, I believe that I can successfully defend this action and give below a brief summary of my defence.

    I deny that I am liable as alleged in the Particulars of Claim, or at all.

    In respect of the alleged agreement it is denied that any such agreement was entered into by me and the Claimant is put to strict proof that such an agreement exists.

    Should it be proved that such an agreement exists, it is denied that the claimant has the legal right to enforce that agreement and therefore is put to strict proof of their rights of ownership by way of Assignment.

    I deny that a valid Notice of Assignment was received and therefore puts the claimant to strict proof that one was issued in line with the Law of Property Act 1925.

    I deny that a default notice was received from the claimant and therefore the claimant is put to strict proof that one was issued and of the contents supposedly stated therein.

    I deny that a termination notice was received from the claimant and therefore the claimant is put to strict proof that one was issued.

    Should it be proved that such an agreement exists, it is claimed that the claimant has acted unfairly and therefore the claimant is put to strict proof that they have acted fairly.

    In the circumstances the court is invited to conclude that there are reasonable grounds to suppose that I will be able to successfully defend the Claimants claim at trial.

    Please note that I will respond to the application for a Charging Order later, but within time limits.


    ------ Spent long time doing this but understand it may need tweaking. I'm not proud just need continued guidance -------


  4. #44
    r&b r&b is offline
    Classic Account Holder
    Help the CAG!!
    Make a contribution
    r&b Highly informative r&b Highly informative r&b Highly informative r&b Highly informative r&b Highly informative r&b Highly informative r&b's Avatar

    Follow Real_CAG on Twitter

    Cagger since
    Dec 2008
    Posts
    1,193

    Default re: Trying to set aside judgement - APPEAL **WON**

    hi robin,
    i think ur points are valid but im just worried that u may be giving them a heads up on your plan of attack.
    i believe that for the set asideicon u really need to just deal with the facts of the judgment. u may be better off waiting until u get some form of reply to ur disclosure requests such that u can then attack from that angle and have the back up of statutes and case law to guide the judge.
    did u add the other docs (DN/TN/NoA) to ur 31.14 request btw?

    alternative views have been rather sparse which is unusual so if anyone has any please air them.....

    "Never in the history of the world has there been a situation so bad that the government can't make it worse."

    LINK FOR CCA1974:
    http://www.statutelaw.gov.uk/legResu...=1&SortAlpha=0

    LINK FOR CPR:
    http://www.justice.gov.uk/civil/proc...enus/rules.htm
    Follows
    0
    Following
    0

  5. #45
    Basic Account Holder mandyjayne Novitiate mandyjayne Novitiate mandyjayne's Avatar

    Follow Real_CAG on Twitter

    Cagger since
    Jan 2008
    I am in
    Down South near Albert Square
    Posts
    641

    Default re: Trying to set aside judgement - APPEAL **WON**

    Hi robin

    your doing very well with all this... im going to put on my thread....

    http://www.consumeractiongroup.co.uk...ml#post1806364

    Its quite long reading but you can skim over bits, mine is very similar to yours and you may get some ideas from it...i also added to my set asideicon application whilst it was already with the court.

    As r&b has said you may not need to be so elaborate with your addition to the N244icon.

    And "BUMP" means bump up my post, just shoots you back up to the top of the pile for extra help.

    Someone will be along to advise on what you should/should not send very soon....hang on til early evening as some of the site team will prob be logged on then, if no reply try your red triangle again

    R&b is keeping you on track

    All the best

    MJ

    Follows
    0
    Following
    0

  6. #46
    Site Team citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB's Avatar

    Follow Real_CAG on Twitter

    Cagger since
    Dec 2007
    I am in
    Back of beyond
    Posts
    58,196

    Default re: Trying to set aside judgement - APPEAL **WON**

    Robin, I have hit the triangle for you.. site team are now aware of your query.


    Please consider making a small donation to help keep this site running
    Click here to donate through PayPal (opens in a new window)



    1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE
    2: Take back control of your finances - Debt Diaries
    3: Feel Bullied by Creditors or Debt Collectors? Read Here
    4: Staying Calm About Debt Read Here
    5: Forum rules - These have been updated - Please Read

    BCOBS

    2: Does your Bank play fair - You can force your Bank to play Fair with you
    3: Banking Conduct of Business Regulations - The Hidden Rules
    4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly
    5: Fair Treatment for Credit Card Holders and Borrowers - COBS



    Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

    PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE
    Follows
    0
    Following
    0

  7. #47
    Basic Account Holder RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative

    Follow Real_CAG on Twitter

    Cagger since
    Jul 2009
    I am in
    A sleepy village hidden from all
    Posts
    750

    Default re: Trying to set aside judgement - APPEAL **WON**

    Hi R&B
    Thanx again for advice. Guess I'm trying to be a bit too open with other side at this time. OK an I right that despite what was originally put on my N244icon for the set asideicon that I can add to it and elaborate to it at the hearing.

    Would I be able to produce the copy letters referred to in my earlier posting as this was not included in part 10 of N244 nor was a statement that I felt I could successfully defend the POCicon.

    Thanx MJ for joining in.I will look at your thread later. I'm sure we are all the same when it comes down to opinions on what to do. We are always worried that something so important can go badly wrong. Will let you know where your thread will help.

    Finally thanx citizenb for getting the site team involved. Just hope I can learn more and help others in time.


  8. #48
    Basic Account Holder RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative

    Follow Real_CAG on Twitter

    Cagger since
    Jul 2009
    I am in
    A sleepy village hidden from all
    Posts
    750

    Default re: Trying to set aside judgement - APPEAL **WON**

    Sorry R&B
    Yes I did include DN/TN/NoA


  9. #49
    Site Team 42man Highly authoritative 42man Highly authoritative 42man Highly authoritative 42man Highly authoritative 42man Highly authoritative 42man Highly authoritative 42man Highly authoritative 42man Highly authoritative 42man Highly authoritative 42man Highly authoritative 42man Highly authoritative 42man's Avatar

    Follow Real_CAG on Twitter

    Cagger since
    May 2007
    Posts
    26,190

    Default re: Trying to set aside judgement - APPEAL **WON**

    It might possibly be a good idea to submit a Witness Statement as opposed to writing a letter.....

    PLEASE NOTE - I am not a legal expert, what is stated is my own opinion and from what I have learnt from this forum and my own experiences.

    DEBT COLLECTION LETTER/SAR/AGREEMENT TEMPLATES ARE HERE - http://www.consumeractiongroup.co.uk...65-legislation

    IF WE HAVE BEEN HELPFUL -PLEASE, PLEASE, PLEASE GIVE A DONATION TO HELP US TO CONTINUE HELPING YOU

    I AM HAPPY TO RECEIVE PM's AND I WILL RESPOND IF I FEEL I CAN ASSIST BUT WHEN YOU DO CAN YOU PLEASE PROVIDE A LINK TO YOUR THREAD ON WHICH YOU WOULD LIKE ME TO COMMENT - THANK YOU

    IMPORTANT - If you are sent a private message directing you for advice or support with your issues to another website,this is your choice.
    Before you decide,consider the users here who have already offered help and support.
    Private message facilities are offered for users to communicate issues that are/or could be seen to be inappropriate for posting on the main forum.Site rules explain this in more detail.
    If you are approached by private message with a view to asking you to visit another website,please inform the site team via the report icon.


    Forum rules - http://www.consumeractiongroup.co.uk...ease-read.html
    Follows
    0
    Following
    0

  10. #50
    r&b r&b is offline
    Classic Account Holder
    Help the CAG!!
    Make a contribution
    r&b Highly informative r&b Highly informative r&b Highly informative r&b Highly informative r&b Highly informative r&b Highly informative r&b's Avatar

    Follow Real_CAG on Twitter

    Cagger since
    Dec 2008
    Posts
    1,193

    Default re: Trying to set aside judgement - APPEAL **WON**

    hi 42man
    thanks for adding some clarity. would u suggest waiting until the OP receives some form of documentation from his requests or submitting smth along the lines of his posts 27 & 43 as soon as poss?

    "Never in the history of the world has there been a situation so bad that the government can't make it worse."

    LINK FOR CCA1974:
    http://www.statutelaw.gov.uk/legResu...=1&SortAlpha=0

    LINK FOR CPR:
    http://www.justice.gov.uk/civil/proc...enus/rules.htm
    Follows
    0
    Following
    0

  11. #51
    Basic Account Holder RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative

    Follow Real_CAG on Twitter

    Cagger since
    Jul 2009
    I am in
    A sleepy village hidden from all
    Posts
    750

    Default re: Trying to set aside judgement - APPEAL **WON**

    Hi 42man & r&b
    Just checked here quickly as I need to be out most of day but back this evening.

    Advice on Witness statement would be gratefully appreciated and to its content. Any advice on timing is important to me (hearing date for set asideicon and making charging order final 04/09)

    To clarify my situation further part 10 on N244icon app to set aside was.
    box ticked "the evidence set out below"

    "Form N9A together with my letter dated XXXXXX was served on the claimant by first class recorded delivery on XXXXX. The claimant failed to deal with the matter in accordance with court rules and wrongly made an application for and obtained the default judgment. On XXXXX I telephoned Horwich Farrelly and it was confirmed by a lady called Toni on Ext XXXX (she refused to give her last name) that they did receive the documents served XXXXXX and that they had not been processed in accordance with court rules. I asked that in order not to waste court time or incur unnecessary costs that they agree to the default judgment being set aside so it could be dealt with without a hearing. They declined. When asked if this could be resolved any other way they said no and I should apply for the default judgment to be set aside.
    Evidence attached. Copy of N94A and letter dated XXXXXX. Copy of proof of posting by first class recorded delivery.
    I would ask the court not to allow any enforcement of the judgment until after the hearing takes place to set aside the default judgment"


  12. #52
    Basic Account Holder RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative

    Follow Real_CAG on Twitter

    Cagger since
    Jul 2009
    I am in
    A sleepy village hidden from all
    Posts
    750

    Default re: Trying to set aside judgement - APPEAL **WON**

    Hi R&B and 42man
    Any further opinions on witness statement. Look forward to hearing back.


  13. #53
    r&b r&b is offline
    Classic Account Holder
    Help the CAG!!
    Make a contribution
    r&b Highly informative r&b Highly informative r&b Highly informative r&b Highly informative r&b Highly informative r&b Highly informative r&b's Avatar

    Follow Real_CAG on Twitter

    Cagger since
    Dec 2008
    Posts
    1,193

    Default re: Trying to set aside judgement - APPEAL **WON**

    hi robin,
    in the absence of any better advice, id be tempted to await any docs b4 submitting, as the last thing u want is to submit, then receive unenforceable docs and have to apply to change everything. u have enough time to wait and any non compliance with ur disclosure rqsts can go onto the WS.
    as a separate note, keep an eye on the date u gave for disclosure and get the reminders straight off giving 7 days to comply etc etc it will all bolster ur case.
    of course take any other opinions from people who know the score here.

    "Never in the history of the world has there been a situation so bad that the government can't make it worse."

    LINK FOR CCA1974:
    http://www.statutelaw.gov.uk/legResu...=1&SortAlpha=0

    LINK FOR CPR:
    http://www.justice.gov.uk/civil/proc...enus/rules.htm
    Follows
    0
    Following
    0

  14. #54
    Basic Account Holder RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative

    Follow Real_CAG on Twitter

    Cagger since
    Jul 2009
    I am in
    A sleepy village hidden from all
    Posts
    750

    Default re: Trying to set aside judgement - APPEAL **WON**

    Hi R&B
    Do take that on board, but is there any time limits on WS's and are there any templatesicon around so I can start putting one together.
    Yes, I have diarised for 31.14 to chase. Again, any templatesicon for chasing.
    I also sent a S78 CCA rewuest for copy of credit agreement to RW and time limit is now up. Should I not pursue this now in view of 31.14 or should I chace this as well


  15. #55
    r&b r&b is offline
    Classic Account Holder
    Help the CAG!!
    Make a contribution
    r&b Highly informative r&b Highly informative r&b Highly informative r&b Highly informative r&b Highly informative r&b Highly informative r&b's Avatar

    Follow Real_CAG on Twitter

    Cagger since
    Dec 2008
    Posts
    1,193

    Default re: Trying to set aside judgement - APPEAL **WON**

    Quote Originally Posted by RobinWayRobinme View Post
    Hi R&B
    Do take that on board, but is there any time limits on WS's and are there any templatesicon around so I can start putting one together.
    im afraid i dont know the answer to that robin, but i dont think there are hard and fast rules as to time on that, most of the CPR i believe relies on 'reasonable' as a key word, but i may be wrong.
    there are numerous examples for varying cases if u search thru the site. although the content may not be of use the format might help, post 5 here :
    http://www.consumeractiongroup.co.uk...uldnt-use.html

    Yes, I have diarised for 31.14 to chase. Again, any templatesicon for chasing.
    I also sent a S78 CCA rewuest for copy of credit agreement to RW and time limit is now up. Should I not pursue this now in view of 31.14 or should I chace this as well
    im not sure there are any templates but maybe look at PT2537s 31.16 thread and rejig that reminder, to suit.
    the s.78 request is a bit of a non starter at this point (tho worth a try) as the judgment supercedes the credit agreement and therefore frees them of that liability.


    if it were me i would prepare a WS without the docs, including the fact that i had made disclosure rqsts, ready to go at short notice and also have a few ideas ready in case the docs do turn up, so u can get them off as and when necessary.
    sorry its not great but thats all i can think of at the present time. u may find time well spent trawling thru some threads that have had a similar issue to yourself, its amazing what u pick up, even if it is a bit brain draining.

    "Never in the history of the world has there been a situation so bad that the government can't make it worse."

    LINK FOR CCA1974:
    http://www.statutelaw.gov.uk/legResu...=1&SortAlpha=0

    LINK FOR CPR:
    http://www.justice.gov.uk/civil/proc...enus/rules.htm
    Follows
    0
    Following
    0

  16. #56
    Basic Account Holder RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative

    Follow Real_CAG on Twitter

    Cagger since
    Jul 2009
    I am in
    A sleepy village hidden from all
    Posts
    750

    Default re: Trying to set aside judgement - APPEAL **WON**

    Thanx R&B
    I seem to see 14days mentioned in various places but nothing specific to WS's so guess I should send WS at least 14days before hearing. Of course if any other guidance on this shows otherwis.

    Been trawling through other threads and will check out those you mention. I will prepare my draft witness statement and post it for opininion please.

    Not sure that penny is starting to drop with proceedures etc. Am I right with following:

    1. N244icon application to set asideicon contained my evidence to support application.

    2. After N244 I can prepare and serve a witness statement as further evidence to support application.

    3. The witness statement does not need to include CPR's but can refer to breaches of them and practice directions.

    4. At the hearing I am able to expand further on the evidence (original on N244 and WS).

    5. Also at the hearing I can introduce new evidence at the DJ's discretion.

    If I am correct with this, its a breakthrough in my understanding, but I stand to be corrected.

    I do not know how I would have got this far without you and CAGicon


  17. #57
    Basic Account Holder RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative

    Follow Real_CAG on Twitter

    Cagger since
    Jul 2009
    I am in
    A sleepy village hidden from all
    Posts
    750

    Exclamation re: Trying to set aside judgement - APPEAL **WON**

    Interesting update. Just had letter from DWF acknowledging request 31.14 stating requesting docs from client saying "hope to forward the same to you before the Charging Order hearing ..... In the meantime, we look forward to receiving a copy of your application to set Judgment aside".

    Facts are:

    1. Application made to set asideicon. Stamped received by court 15/06/2009.

    2. Notice of hearing to set aside dated 25/06/2009.

    3. Box 9 on N244icon stated Horwich Farrelly (sols then on record for service of docs) should be served with app. I asumed court does service, am I right.

    4. Notice of change of solicitor received from new sols and form dated 19/06/2009. Old sols Horwich Farrelly, new DWF LLP. This was received after notice of hearing but I didn't keep letter it arrived in to show they may have delayed posting.

    5. Interim charging order 29/06/2009.

    Views please on this event


  18. #58
    Basic Account Holder someone_else Novitiate

    Follow Real_CAG on Twitter

    Cagger since
    Aug 2008
    Posts
    254

    Default re: Trying to set aside judgement - APPEAL **WON**

    In our set asideicon hearing, we ticked the box asking for documents to be send to the Claimant, the court then forwarded onto the Claimant our application, you may want to check with the court to see if they sent a copy of your application to the other side and what address did they send it to, if they sent it to Farrell you may want to send a copy to DWF (to stop them denying any knowledge of the hearing).

    Regarding the Charging Order, it shouldn't matter for the moment aslong as the hearing date for that is after your set-aside hearing.

    If the judgement is set-aside the Charging Order and it's hearing will be removed - you may want to bring it up in the hearing if you win, as in our case the judge filled some paperwork in to get the Charging Order removed, in case the judge forgets or isn't aware of the Charging Order.

    Also if the judgement is set-aside make sure the other side don't try to get the Final Charging Order Hearing moved to the same time as the hearing for the case or straight after it - Link tried to do that in our case, that brought a scornful look from our judge, as even if they get a CCJ they can only get a Charging Order if you haven't paid.

    In our case we didn't actually need to argue the defence - Link got Judgement in default because the court lost the defence.

    All the judge did in our hearing to set aside was look at her book (I assume it was the CPR rules) and say if a defence was submitted, judgement in default can not be obtained and the judgement must be set-aside, Link tried to argue but as they and the court now had a copy of the defence there was nothing they could do.

    CPR 13 deals with setting aside judegment

    it can be done under the following conditions:

    Cases where the court must set aside judgment entered under Part 12

    13.2

    The court must set asidea judgment entered under Part 12 if judgment was wrongly entered because –
    (a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

    (b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

    Cases where the court may set aside or vary judgment entered under Part 12

    13.3

    (1) In any other case, the court may set aside(GL) or vary a judgment entered under Part 12 if –
    (a) the defendant has a real prospect of successfully defending the claim; or
    (b) it appears to the court that there is some other good reason why –
    (i) the judgment should be set aside or varied; or
    (ii) the defendant should be allowed to defend the claim.

    (2) In considering whether to set aside(GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.
    From that there is two routes you can take

    13.3 - is upto the judge, s/he may decide your circumstances on their own are enough to set aside judgement and give you a chance, or you may need to produce a decent defence that gives the judge a reason to set-aside.

    13.2 - may be a safer route, as if they broke 13.2 the judge must set aside the judgement with 12.3 (3) saying they cannot get judgement in default if you admitted and asked for time to pay.

    The problem with using 13.2 is that you are saying you admit the debt and want time to pay, so I'm not sure what happens if you get the judgement set-aside, will the judge just give you longer to pay, and if you don't pay you go back to where you are?

    If you want to try and defend the claim instead of just buy some more time to pay, it might be best to go down the 13.3 route and try and convince the judge you have a good defence and/or a good reason for judgement to be set-aside, in this case you would need to supply a copy of your defence to the court.

    Regarding sending the documents to the court in advance, reading various threads this seems to depend on the judge/court - some are ordered to serve documents in advance other judges seem happy for documents to turn up just before hearings.

    If you don't send information to the other side, the judge may ask you why you didn't - if they are refusing to provide any documents it may be in your best interests to send your statement/defence to them before the hearing - it shows they are the ones being unreasonable by withholding documents.

    The downside is if you are relying upon them not producing documents (i.e. the agreement) and tell them so in your defence, they may decide to produce them (i.e. if you are relying on them not having an agreement and they produce it before the hearing in reponse to your defence you may have a problem).

    In your case it may be better to send a copy to the other side - shows your being reasonable and shows why you need certain documents, if they provide documents you can then defend on the merits of the documents, rather than defending on the fact that they haven't produced the documents - a dodgy document is better than no document (unless they say they don't have the document or it doesn' exist) if they don't disclose the document there is nothing stopping them from producing it latter, but if they produce a dodgy document they are stuck with it.

    Though I'd wait and see if they respond to your CPR31 or SARicon requests, if they don't before you need to submit the statement you add that to your defence.


  19. #59
    Basic Account Holder RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative RobinWayRobinme Informative

    Follow Real_CAG on Twitter

    Cagger since
    Jul 2009
    I am in
    A sleepy village hidden from all
    Posts
    750

    Default re: Trying to set aside judgement - APPEAL **WON**

    Thanx Someone else
    Appreciate ur imput.

    Will call court on mon and see who was served with app to set asideicon. Prob I have is that charging order hearing is set same date and time. When phoning court I will ask that my app be heard first.

    Still looking for guidance on 56 &57 posts. What do you think and if 42Man is looking in any further thoughts on witness statement content. Still looking at other threads though to see if I can find anything.


  20. #60
    Site Team citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB Highly authoritative citizenB's Avatar

    Follow Real_CAG on Twitter

    Cagger since
    Dec 2007
    I am in
    Back of beyond
    Posts
    58,196

    Default re: Trying to set aside judgement - APPEAL **WON**

    Robin, I am just going to have a read of your thread again.. then will see who it would be best to contact on your behalf.

    There isnt a templateicon witness statement as such because each one is individual.

    BRB


    Please consider making a small donation to help keep this site running
    Click here to donate through PayPal (opens in a new window)



    1: Making a PPI claim ? - Q & A's and spreadsheets for single premium policy - HERE
    2: Take back control of your finances - Debt Diaries
    3: Feel Bullied by Creditors or Debt Collectors? Read Here
    4: Staying Calm About Debt Read Here
    5: Forum rules - These have been updated - Please Read

    BCOBS

    2: Does your Bank play fair - You can force your Bank to play Fair with you
    3: Banking Conduct of Business Regulations - The Hidden Rules
    4: BCOBS and Unfair Treatment - Common Examples of Banks Behaving Badly
    5: Fair Treatment for Credit Card Holders and Borrowers - COBS



    Advice & opinions given by citizenb are personal, are not endorsed by Consumer Action Group or Bank Action Group, and are offered informally, without prejudice & without liability. Your decisions and actions are your own, and should you be in any doubt, you are advised to seek the opinion of a qualified professional.

    PLEASE DO NOT ASK ME TO GIVE ADVICE BY PM - IF YOU PROVIDE A LINK TO YOUR THREAD THEN I WILL BE HAPPY TO OFFER ADVICE THERE
    Follows
    0
    Following
    0


Viewing CAG on a small screen? Switch to the mobile version of the site

Reclaim the Right Ltd. - reg.05783665 in the UK reg. office:- 923 Finchley Road London NW11 7PE