Hi,

I sent in a set aside application to my local court against a Statutory Demand that I had received.

I thought that I'd done everything ok, but it just came back from the judge this morning having been rejected and the order said:-

It is ordered that the application is invalid as the affadavit is not sworn.

Original Statutory Demand and application is returned.

So, my question is - how do I swear the affadavit? I need to do this pretty quickly as, technically, I'm now outside of the 18 days

regards

nicklea

Go to the court, and ask to swear the affidafit in front of a court officer.

Thanks!

Well, I had my day in court on Friday with the Set Aside application and this is what happened. Just in case anybody in a similar situation with set aside applications coming up might be interested.

I read on another thread that it is very rare to hear set aside applications for statutory demands and as it turned out this was only the third case my local court had heard this year. Although, apparently, set aside applications for other things - like house repossessions - are a lot more common now.

This case isn't to do with consumer credit but I was relying on UCTA, UTCCR and penalty clauses so there is a lot of cross over. The original thread is here:-

http://www.consumeractiongroup.co.uk/forum/general-debt-issues/127405-commercial-contract-law-request.html#post1334357

To be honest I didn't think it would be opposed but while I was waiting outside the judge's chambers I noticed two young girls (well - mid 20s) with a copy of my set aside application. I suddenly became slightly nervous. However, as it transpired, they were just a couple of muppets (albeit qualified solicitor muppets) from a local law firm.

Anyway, we were called into the chambers and after introductions the judge asked the other party first to give their reasons why there wasn't a trialable issue. They just went on about some minor issues and didn't even touch on any of the points that I had raised in my application (except for the most minor point of all that was largely unimportant). They clearly hadn't been well briefed and were really just floundering.

The judge then turned to me and asked me to make my case for why there was a trialable issue. I went through all my points with regard to UCTA and UTCCR and about me being a consumer within the meaning of those two.

The other side tried to interject, it wasn't very coherent, little more than "but...but...he's not a consumer", they really had no knowledge of UCTA or UTCCR. I was just about to come back with all the case law I had to show that I was a consumer but the judge beat me to it and said himself that there are lots of authorities concerning this and that this was an argument he heard regularly in the court (although, unfortunately, he didn't say if it was used successfully or not!) and it was clearly a trialable issue.

I then went into the penalty clauses bit and started quoting a couple of cases. At this point the judge said that I really should have mentioned these cases in the actual application but he would let it go as I was a litigant in person and I could give him and the other solicitors all the citations etc. Meanwhile the two solicitors were busily scribbling down everything I said.

The judge then summed up and found in my favour. I made a lot of arguments but in his summing up he mentioned only three of them and he actually reworded one of them so it came across a lot better than how I had put it. It almost sounded like he was letting me know what my strongest points had been in the argument and perhaps what might be successful if this company ever try to get a CCJ against me. Do judges do this sort of thing when they sum up?

So, what had been listed for a 30 minute hearing lasted almost 2 hours and the couple of solicitor muppets walked away to hand a large costs bill to their client

Lessons Learnt

From comments the judge made my case would have gone across a lot better if, in the actual application form itself, I had gone into a lot more detail quoting all the cases and speeches etc. It is obvious that had my application been similar to one of the typical defences that pt2537 does then it would have been a lot quicker and easier.

Prior to getting to this stage a lot of my responses to this company had not been in writing but through the telephone. It was obvious that it did not help my case when I said that I had telephoned them on such a date and said this about disputing the debt. It would have been a lot better if I had put everything to them in writing so that I could show it to the judge.

nicklea

Thanks for a full and interesting reply. Nice Judge!

Jools

Well done...great result...what were the 3 main arguments that the judge refered to?

Hi b3rty,

This wasn't a consumer credit case it was about me providing a personal guarantee on behalf of my company.

First of all, UTCCR and the relevant bit of UCTA only applies if you are acting as a consumer. A consumer is basically defined as anybody who isn't in business connected with the contract. I said that my business or profession was not that of being a guarantor (I don't go round providing guarantees to people for a living) and that this guarantee was just a personal matter between me and the company. As a result UCTA and UTCCR applies. Actually there is a lot of case law in this area, look for example at R & B Customs Brokers Company Ltd v United Dominions Trust Ltd [1987] EWCA Civ 3, [1988] 1 WLR 321, [1988] 1 All ER 847

Since UCTA and UTCCR applies then the terms have to be reasonable and/or fair. In this case, the other party gained a benefit when the contract was terminated and it turned out that this benefit increased the earlier that termination took place. HOwever, the damages clause in the contract said that the sooner termination took place the larger the amount of damages that it could claim. So I argued that a clause that allowed them to claim more in damages when they gained a bigger benefit from terminating the contract earlier was unreasonable.

Finally, the penalty clauses argument. I made reference to two cases:-

Murray v Leisureplay

Murray v Leisureplay Plc [2005] EWCA Civ 963 (28 July 2005)

and the "Cine" case - it's a very long name

Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWCA Civ 1669 (21 November 2003)

The Cine case was most relevant as this was directly analogous to the situation I was facing and Murray went referred to this case and put more arguments in about penalties

Hope this helps