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I'm sorry for bringing up this subject again but it's now very important to me.
Yesterday I applied for judgement by default on my first claim. Barclays have just filed a defence to my claim on the 29th day. Others on
this site have had similar experiences and have questioned the courts casual acceptance of defences that dont fall within the period.
The Notice Of Issue clearly states that 'the defendant now has 28 days from the date of service of the claim form to file a defence'.
My question is: Does the court have the power to to waive it's own procedures? In other words is the 28 day period a legal time frame or one just used by Northampton county court.
I'm sorry for bringing up this subject again but it's now very important to me.
Yesterday I applied for judgement by default on my first claim. Barclays have just filed a defence to my claim on the 29th day. Others on
this site have had similar experiences and have questioned the courts casual acceptance of defences that dont fall within the period.
The Notice Of Issue clearly states that 'the defendant now has 28 days from the date of service of the claim form to file a defence'.
My question is: Does the court have the power to to waive it's own procedures?
Yes they will accept a late defence normally. If your 28th day was a weekend day the automatically get the next working day as well.
In practice unless an application for default judgment has been received the court will accept and file a defence. There is nothing that states that a defence cannot be filed after 28 days, rather that a claimant can't apply for default judgment until 28 days after service (if acknowledgment has been filed).
In practice unless an application for default judgment has been received the court will accept and file a defence. There is nothing that states that a defence cannot be filed after 28 days, rather that a claimant can't apply for default judgment until 28 days after service (if acknowledgment has been filed).
Thanks Advoc8
but that's just it, an application for defualt was accepted before the court accepted the defence. The court told me that ''The defendant's response always takes precedence over request for Judgement'', which confirms your interpretation that the 28 days is the period before the claiment
can apply for judgement. Only thing is, the 'service of acknowledge' clearly refers to the 28 days as the time ''the defendant has to file a defence''.
Am I a sandwich short of a picnic or are these two completely different concepts?
I'm fuming about this. After all the rubbish you get from the banks I was
looking forward to reaching the court stage for a bit reason, logic and a level playing field but sadly, it appears, I was mistaken.
The CPR is a bit hazy on time limits for defences. Was your default judgment application made through MCOL or on paper and how long was it made before the defence was filed?
I had a default judgement against GE Capital. A month later the amount was still unpaid and I was about to send in the bailiff, but I received a letter from GEs new solicitor advising me of their recent appointment. I wrote back allowing them 7 more days to pay up, they simply applied to set aside so that they could raise a defence. So it really doesnt make any difference if they are a few days/ weeks late. They only have to send the apllication to the court to get back on track. I suppose I will get a new hearing date to judge on whether the bank can submit a defence or not. At the hearing, I will request the court to allow the judgement to be set aside in order to ensure the defence is raised, but will suggest the bank will be lining themselves up to abuse the process if they get permission to issue a defence but then withdraw or settle therafter, without a proper hearing.
The CPR is a bit hazy on time limits for defences. Was your default judgment application made through MCOL or on paper and how long was it made before the defence was filed?
I think hazy's very generous.
The application was made through MCOL and accepted about 3 hours
before the defence went in. About an hour before the defence was made
I called MCOL to ask if the defendent would be privvy to my judgement
application prior to any judgement being granted. I put this to her 3 times during the call but she refused to answer me point blank.
This really stinks to me. I know next to nothing about the legal system
but I would have thought a court tipping off one side as to the actions
of the other would be a capital offence.
I had a default judgement against GE Capital. A month later the amount was still unpaid and I was about to send in the bailiff, but I received a letter from GEs new solicitor advising me of their recent appointment. I wrote back allowing them 7 more days to pay up, they simply applied to set aside so that they could raise a defence. So it really doesnt make any difference if they are a few days/ weeks late. They only have to send the apllication to the court to get back on track. I suppose I will get a new hearing date to judge on whether the bank can submit a defence or not. At the hearing, I will request the court to allow the judgement to be set aside in order to ensure the defence is raised, but will suggest the bank will be lining themselves up to abuse the process if they get permission to issue a defence but then withdraw or settle therafter, without a proper hearing.
It's not the banks that tick me off - they'll just do what they can get away with -it's the courts that let them get away with it time and time again.
Did they say that your application had been received or that default judgment had been granted?
I very much doubt that court staff will tip off a defendant. It might just be very lousy timing in terms of your application being received but not processed and the defence coming in. The defendant no doubt leave it to the last minute to get a defence in, you may (I don't know) have applied for default judgment at the earliest moment you could.
It's relatively easy to get default judgment set aside and it's in nobody's favour to make judgments that will just get set aside again, all it does is cause delay and cost money.
It's not the banks that tick me off - they'll just do what they can get away with - it's the courts that let them get away with it time and time again.
At an admin level the courts are just following their procedures. Sometimes this works in your favour and sometimes against.
Remember that although these claims are based on sound legal arguments they've not been tested in court and at an admin level the court service has to treat each one like it could go to trial (although some judges are starting to take a different approach).
The wheels of justice do grind exceedingly slowly. For example a 'fast track' case has a timetable of about 35 weeks from claim to final trial window (I know that fast track also refers to the length of trial but fast track cases are meant to be relatively simple).
I'm afraid it's a bit like rain on the Bank holiday. It happens - in fact, it's more the norm than the exception. There's nothing you can do about it, other than what you've done. Best not to get too upset - it only encourages them!
When asked in these circumstances, I always suggest waiting a few days (no more than 7) anyway. If they don't file then, there's a much stronger case for strike down and summary judgement under S16 of the CPR.
Best not to get too upset - it only encourages them!
With sympathy
Westy
yeah thanks for that Westy. You're dead right. I took my eye off the ball there for for a minute. I've now returned to a state of serenity and again
feel at one with the world.
Now, where's my pen? Time to fire off my next rabidly, terse missive to the OFT...
Are 29th day defences legal?
have just filed a defence to my claim on the 29th day. Others on
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Originally Posted by crfx250
