Setting Aside A Judgement? Advice Please?

[jqinfo]

I need to appoint a solicitor on behalf of my friend who is out of the country, to apply to set aside a judgement. The issue is a judgement entered whilst she was out of the country, by solicitors for non-payment of fees. The fees were in dispute and we had an agreement to reduce them and to dispute barristers fees, which they paid in full knowing there was a dispute. The solicitors applied to the court mid discussions and knowing my friend was leaving the country. I wrote to the court and explained and requested that judgement not be entered in her absence and they did so anyway. Then I applied for it to be set aside. The judge has given her time to find a solicitor, but she is still out of the country and time is running out. She cannot return immediately because she is trying to sort out her Mother's estate.

 

Do I need to find a specialist in the field that the case was in originally; in case something is questioned (there is a possible negligence case with regard to solicitor and barrister) or can any solicitor deal with this issue and worry about the negligence later? Or is it interlinked?

 

I am running out of time and I would like to make the best decision and not a bad one in haste!

 

Thank you in anticipation of replies.

 

JQ

[Spamalot]

Hiya,

 

I'm a little confused by your post...

 

You say that the solicitor got judgement while the defendant was out of the country.. did your friend get a claim originally and acknowledge its service or was it all done without her knowledge?

 

would you mind laying out a chronological order of events so it's a bit clearer..

 

sorry,

 

Spam.

[jqinfo]

Sorry to confuse!

 

We were discussing the dispute with the solicitors, they said they would ring back. I informed them that my friend was leaving the country imminently. My friend left the country, the summons was received after she left, the court had wrongly stamped the return of acknowledgement with a date prior to issue. I contacted the court to explain everything, it was already a day or two passed the service date, they asked me to write and explain, which I did and faxed immediately. Judgment had not been entered. I requested they reply to my address and enclosed an authority to deal with her affairs. They did not do this and by the time I had received the reply two weeks later, my letter had been ignored and judgment entered.

 

This left me no option but to apply for the judgment to be set aside, which I had to pay for myself, also I asked for it to be transferred to a nearer court, which they did. I attended court, the judge was not very supportive of me dealing with it and said that my friend should have been there. I did explain why she was out of the country and that she could not return immediately. She reluctantly gave time for "my friend" to find a solicitor to defend her case and if it is not done by the court date the claim will be struck out!

 

Thus, everything was done without her being in the country, although with me telling her over the telephone.

 

I hope this is a bit clearer? & many thanks for your attention!

 

JQ

[jqinfo]

By the way Spam, I was told that if the other side knew that my friend had not received the summons and that she was out of the country they should have applied for the judgment to be set aside and requested directions of the court under 13.5 of the civil rules. Unfortunately the Judge did not wish to take notice of that fact, which meant she added £250 costs to my friend's bill!

 

If this civil rule is correct then neither of us would have been there at any cost!!

 

Any ideas?

 

Thank you in anticipation!

 

JQ

[Spamalot]

Hi,

 

If your friend did not receive the summons and the Judgement was entered in default then yes a set aside can be applied for using CPR 13.3.

 

PART 13 - SETTING ASIDE OR VARYING DEFAULT JUDGMENT - Ministry of Justice

 

This would normally cost £75 using an n244 form.

 

This should be done by the defendant though... I would think if you did it on her behalf then the other side can oppose it and get it struck out which would mean them claiming costs and adding it to their bill.

 

When is your friend back in the country? She really needs to be the one doing all this as it would then be a reasonably simple process without the need for solicitors.

 

Spam.

 

As an afterthought... your friend could also claim the costs of traveling to and from the UK to do this if the outcome of the claim is awarded in her favour..;-)

Edited September 15, 2009 by Spamalot

[jqinfo]

Hi Spam

 

Yes that is what I did and I paid the fee, the solicitor tried to get it struck out, but I had a signed authority to deal with her affairs, and yes the judge awarded them £250 costs! However, had they listened in the first place and not entered the judgment when I explained the position, there would have been no costs to pay!

 

Now, I have to find a solicitor urgently to deal with it and do not know if it is a simple case of setting aside judgement or whether they have to specialise in the negligence side of it to check the bearing on the original account?

 

As far as I am aware, she wont be back before the end of October, depending upon her sorting out her mother's estate (the family took it all and she was next of kin, but in England) and that is not definite!

 

JQ

[Spamalot]

Ok,

 

To be perfectly honest, as I said earlier, as the judgement was awarded in default etc. as long as your friend can prove that she has a good defence against the original claim and has a good chance of successfully defending their allegation then the set aside shouldn't be a problem.

 

But when it comes to the defence at trial I wouldn't like to hazard a guess as to whether the negligence could be entered as a counterclaim or a separate claim altogether..

 

When you say 'time is running out' how long have you got??

 

Spam.

[jqinfo]

Thank you Spam,

 

25 September & if no solicitor claim will be struck out! I have just managed to secure some money to pay for a solicitor but I want to appoint the correct one, so I can at least ask for some info re the negligence as well!

 

JQ

[jqinfo]

Just to add Spam,

 

For me it is irritating to be in discussions about the account, await a return call that doesn't come and then receive the papers for court, when they knew she was going away. All the work and costs would have been avoided! As for the barristers fees, they paid it in full having already agreed to dispute the account due to his failings!

 

JQ

[Spamalot]

Hi there,

 

When it comes to solicitors and finding one I haven't a clue....

 

I may be covering old ground for you but I don't know if this website would be of any use...

 

The Law Society - Find a solicitor

 

This situation would iritate me to say the least especially as now your friend is leaving herself wide open for more solicitors fees!!

 

There is a CAGger on this site .... surfaceagentx20 who I believe is in the legal profession... I will Pm him with a link to your thread to see if he can advise.

 

Spam.

[jqinfo]

Thank you so much Spam, I really appreciate that.

JQ

[AndyOrch]

"This left me no option but to apply for the judgment to be set aside, which I had to pay for myself, also I asked for it to be transferred to a nearer court, which they did. I attended court, the judge was not very supportive of me dealing with it and said that my friend should have been there. I did explain why she was out of the country and that she could not return immediately. She reluctantly gave time for "my friend" to find a solicitor to defend her case and if it is not done by the court date the claim will be struck out!"

 

Hi JQ

 

Spam as asked me to look in on your thread.

Firstly im a bit confused at where you are at with this, you state you applied to set a side judgement, was it granted? or just put on hold.Did you provide a Defence or Witness statement in support?

Have you recieved notification of the status of the application?You state 21st September no Solicitor the claim will be struck out? the Application to set a side?

The DJ appears to be muddying the waters here you dont need a Sol to defend this.

 

Make application using the N245.Give brief reasoning of A the Claimant and B the Courts mistakes

Secure the set a side.

Submit your Defence and counterclaim (negligence)

Go to trial.

 

Regards

 

Andy

[jqinfo]

Thank you for your response Andy

 

I am panicking and my head is spinning so I will try to explain. I applied for the judgement to be set aside. Originally I asked for an adjournment because I had made a claim on her legal insurance and they came back to me at the last min to say that that aspect was not covered. The court did not reply until the last min & I did not get the letter. I rang the day before court and they told me it had to go ahead.

 

The DJ was not amused at the situation, but agreed to give one month. The direction was that my friend had to be there herself or appoint a solicitor. There is no way she can be here and English is not her first language anyway so that is out of the question.

 

I have been told that in order to argue the correct argument to have the judgment set aside, the negligence issues must be reviewed in order to explain the non-payment issue and the possibility of a successful case? This is going to cost!! & I have only been able to secure a small amount and court is the 25th!! Aaaargh!

 

The DJ will not allow me to act!

 

JQ

[citizenB]

sorry to hijack.. looking for help with an appeal .. andyorch, if you are still here, help.... please..

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/212396-trying-set-aside-judgement.html

[AndyOrch]

Hi JQ

 

Ok so basically the DJ will not allow you to represent your friend even as a Mckenzie friend because of her absence.Which of course she as the right to due to the nature and complex issues of negligence within the case.

Litigants in person are simply those individuals that are not represented by a solicitor or barrister, but nevertheless have a right of audience, (this is the right to address the court in person).

One is more likely to come across litigants in person within the British legal system due to the lack of government funded legal representation and of “no win no fee” solicitors.

With the appropriate guidance it is possible for litigants in person to have access to the legal system and achieve victory against even the most well represented opponents, however generally speaking the system is stacked against them; knowledge being power.

However it is possible for litigants in the UK to obtain free legal advice and in some cases representation from The Litigants in Person Service (LIPS: www.thelitigantsinpersonservice.co.uk or the Citizens Advice Bureau (CAB: Citizens Advice

 

The crux of your problem is her absence in this matter however everyone is entitled to justice.I would contact one of the above and seek advice and may even suggest if all else fails you request a Telecom arranged hearing.

 

I wish you well with this matter.

 

Regards

 

Andy

[jqinfo]

Thank you Andy

 

I know the local CAB will not be able to handle it, I won't bore you with the details, but I will look at LIPS, however, I have been given strict instructions not to attend by the DJ and that if either she or the solictor are not present, it will be struck out!

 

I am between a rock and a hard place!

 

JQ

[jqinfo]

Hi Andy

 

I can't get the link, I have Google and Yahoo searched to no avail! Any suggestions?

 

Many thanks.

 

JQ

[AndyOrch]

Speak to the LIPS see what they advise.Whatever the outcome the Judgement is wrong and if needs be your friend must appeal.The account was in dispute at the time that litigation commenced and your friend was absent from the uk when the papers were served.That is all is needed to set a side and redefend.

 

Let me know what the LIPS advise.

 

Regards

 

Andy

[AndyOrch]

Hi Andy

 

I can't get the link, I have Google and Yahoo searched to no avail! Any suggestions?

 

Many thanks.

 

JQ

 

Try this then The Bar Pro Bono Unit: Free Legal Advice and Representation

 

That works

 

 

Andy

[RobinWayRobinme]

Just looked in as I am also having to make an appeal. Picked up on point about Mckenzie friend. Its my belief that the DJ was correct in that you cannot be a Mckenzie friend if the friend is not present.

 

Hope it clears a point.

Robin

 

Hi JQ

 

Ok so basically the DJ will not allow you to represent your friend even as a Mckenzie friend because of her absence.Which of course she as the right to due to the nature and complex issues of negligence within the case.

Litigants in person are simply those individuals that are not represented by a solicitor or barrister, but nevertheless have a right of audience, (this is the right to address the court in person).

One is more likely to come across litigants in person within the British legal system due to the lack of government funded legal representation and of “no win no fee” solicitors.

With the appropriate guidance it is possible for litigants in person to have access to the legal system and achieve victory against even the most well represented opponents, however generally speaking the system is stacked against them; knowledge being power.

However it is possible for litigants in the UK to obtain free legal advice and in some cases representation from The Litigants in Person Service (LIPS: www.thelitigantsinpersonservice.co.uk or the Citizens Advice Bureau (CAB: Citizens Advice

 

The crux of your problem is her absence in this matter however everyone is entitled to justice.I would contact one of the above and seek advice and may even suggest if all else fails you request a Telecom arranged hearing.

 

I wish you well with this matter.

 

Regards

 

Andy

[jqinfo]

Many thanks! Will do it now.

 

& thank you RWR for your info too.

 

JQ

Edited September 17, 2009 by jqinfo
update

[AndyOrch]

Update your thread JQ when you have contacted the above.I am interested in how you get on!

 

Regards

 

Andy

[jqinfo]

Pro bono not possible they need three weeks notice! I emailed to ask!

JQ

[AndyOrch]

Pro bono not possible they need three weeks notice! I emailed to ask!

JQ

 

Dammm!!!!!

 

Leave it with me JQ I will have a scratch around.

 

Regards

 

Andy

[AndyOrch]

Ok scratchiing finished:D

 

Speak to your friend abroad and tell her to ring/contact the court ,explain her circumstances and request an adjournment to vacate the hearing next week.If successful, get onto Pro Bono and explain what you have requested and ask them to reconsider in the the event of the above happening.

 

Thats the best I can advise for now.

 

Regards

 

Andy