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surfaceagentx20

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surfaceagentx20 last won the day on August 19 2009

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  1. Good for Melonie. She seems to be building quite a reputation. x20
  2. GC, I've been over the old stuff. One of the first questions I asked was: have the proceedings been finally concluded? If so, with what result? If not, what remains to be done? The relevance of these questions concerned whether there was a right to proceed with detailed assessment. I'm not so sure the questions were ever answered. Care to? Next, as for whether there is an obligation for your opponent to attend the forthcoming hearing, the answer is no. The opponent is legally represented. There will be no opportunity or requirement for the opponent to give evidence. Last, this is a hearing of your application. You have to do the donkey work. Have we been shown a copy of yuor aplication notice? I couldn't see that either. If it's somewhere in the thread, what is the post number? If I could read it I would be able to suggest what else you might need to prepare. x20
  3. JQ, As for Q1, the answer is found in whether the address at which the proceedings were served constitutes a valid address for service. I go back to what I said before in reference to CPR 6.9. CPR 6.9(2) directs where the proceedings are to be served. Note the use of the word 'MUST'. The valid address is the usual or last known address unless it can be shown that the Claimant had reason to believe the address was no longer the Defendant's residence. You now tell us that your friend has rented the property out. That tends to suggest the address at which proceedings were served has or even had at the time of service, ceased to be her residence. You say the solicitors are aware of this because they have been around asking questions. However, what the solicitors now know matters not I am afraid. The relevant state of their knowledge will be the date of service, not so many weeks or months later. Besides, even if you were able to show the Claimant was aware the address had ceased to be your friend's address at the time of service, unless you are able to demonstrate that the Claimant ascertained some other address at which your friend might be served, CPR 6.9(6) permits service at the last known address. Did the solicitor ask where the tenant was paying the rent I wonder, or ask to be shown the tenancy agreement recording the address of the tenant's landlord? As for Q2, the mere fact that your friend authorises you to deal with her affairs does not elevate you to the status of one of those persons in section 28(2). Neither does the authority mean that you become a litigant in person within the meaning of section 28(2)(d). It seems to me your authority extends to retaining someone having section 28(2) status to conduct litigation on behalf of your friend, but not to conduct litigation as if you were the Defendant in person. As for your fears your friend's case may be struck out, strictly speaking your friend's ability to advance a case will be conditional upon the court setting the judgment aside and directing the service of a defence. At present therefore and since no direction for service of a defence has been made, your friend does not have a case which could be struck out. It is of course right to say there is a pending application and the application may be struck out. However, since that application was made by a person who had no section 28(2) authority to make it, it seems to me that unless a solicitor can be persuaded to take the case on in time, the application will be struck out. In my opinion it would be unjust for your friend to be later prejudiced by reason of any order made upon the hearing of an application which was made by a person who lacked section 28(2) authority. Your friend ought to be free to disown the application made in her name but without authority and make an original application of her own. This distinction is important for otherwise, if she were bound by the decision upon an aplication she had not made, her only remedy then would be to appeal. I repeat also what I said earlier, namely that, the legal niceties aside, what will truly determine the outcome is whether or not your friend can demonstate she has reasonable prospects of succeeding at trial and whether she made an application to set aside the defalt judgment promptly after learning about it. x20
  4. There are a number of issues here. They are: the validity of the service of a claim form issued for service within the jurisdiction and served by post at a time when the Defendant was not within the jurisdiction the vality of any judgment entered in default the status of an application to set aside not made by the Defendant or solicitor on his behalf. Validity of service A claim form issued for service in the jurisdiciton and delivered to the Defendant by post at a time when the Defendant was not within the juridiction was held to constitute bad service. Per Collins J in Challeram v Challeram [2002] “.. it has always been, and remains, a fundamental rule of English procedure and jurisdiction that a defendant may be served with originating process within the jurisdiction only if he is present in the jurisdiction at the time of service, or deemed service. The Barclays Bank case* is simply an illustration of this principle (as is another case, not cited in argument, Cadogan Properties Ltd v Mount Eden Land Ltd [2000] IL Pr 722, in which the Court of Appeal held that if the defendant is outside England, an order for substituted service in England could not be obtained unless permission to serve proceedings out of the jurisdiction had been obtained). CPR Pt 6 contains general rules about service of documents and does not only apply to service of a claim form…but I do not consider that CPR 6.5 has swept away the general principle so far as it relates to service of the claim form.” *Barclays Bank Swaziland Ltd v Hahn [1989] 1 WLR 506 This approach was followed in Fairmays v Palmer [2006] Since then and with effect from 1 October 2008 CPR Part 6 has changed and CPR 6.9 has application to service of the claim form where the Defendant has not specified an address within the jurisdiction at which the claim form may be served. now provides: 6.9(1) This rule applies where (a) rule 6.5(1) (personal service); (b) rule 6.7 (service of claim form on solicitor); and © rule 6.8 (defendant gives address at which the defendant may be served), do not apply and the claimant does not wish to effect personal service under rule 6.5(2). (2) Subject to paragraphs (3) to (6), the claim form must be served on the defendant at the place shown in the following table. Nature of defendant to be served Place of service 1. Individual Usual or last known residence. (3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1 .. in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (“current address”). (4) Where, having taken the reasonable steps required by paragraph (3), the claimant— (a) ascertains the defendant’s current address, the claim form must be served at that address; or (b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is— (i) an alternative place where; or (ii) an alternative method by which, service may be effected. (5) If, under paragraph (4)(b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15. (6) Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant— (a) cannot ascertain the defendant’s current residence or place of business; and (b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b). We are told (post no3) '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..' We are also told (post no6): '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!' Whilst we are told the Defendant would be abroad and was abroad at the time of service, there is also evidence that the Defendant intends to return albeit no earlier than the end of October. That intention would be in keeping with her not having given up her residence in the UK and arguably the obligation under CPR 6.9(3) would not have arisen. In any event there is no evidence that the solicitors were told where else, once the Defendant had left the country, the Defendant might be served. Although a case might be advanced under the fundamental rule set out in Challeram, it should be noted that Challeram was a 2002 decision and Fairmay a 2006 decision, since when CPR 6 has changed as described above. I do not know of any decisions post 1 October 2008 on the point and it seems to me there is some risk that an analysis of the position along the lines I have made would result in the court finding there had been valid service of the proceedings notwithstanding the Defendant was abroad at the time of service. Validity of Judgment If the court found the fundamental principle as enunciated in Challeram applied after 1 October 2008, the judgment would be a nullity and set aside for lack of proper service. If the court found the fundamental principle had lapsed with the introduction of new CPR 6 on 1 October 2008, there are reasons to suppose the judgment would stand, subject to the usual considerations as to whether the Defendant was able to show in an application to set aside the default judgment that she had reasonable prospects of success. Status of application An application made in litigation if not made by the litigant herself must be made by a person having power to conduct litigation. Courts and Legal Services Act 1990 section 28 provides: Rights to conduct litigation. (1) The question whether a person has a right to conduct litigation, or any category of litigation, shall be determined solely in accordance with the provisions of this Part. (2) A person shall have a right to conduct litigation in relation to any proceedings only in the following cases (a) where (i) he has a right to conduct litigation in relation to those proceedings granted by the appropriate authorised body; and (ii) that body’s qualification regulations and rules of conduct have been approved for the purposes of this section, in relation to that right; (b) where paragraph (a) does not apply but he has a right to conduct litigation in relation to those proceedings granted by or under any enactment; © where paragraph (a) does not apply but he has a right to conduct litigation granted by that court in relation to those proceedings; (d) where he is a party to those proceedings and would have had a right to conduct the litigation, in his capacity as such a party, if this Act had not been passed. (2A) Every person who exercises in relation to proceedings in any court a right to conduct litigation granted by an authorised body has (a) a duty to the court to act with independence in the interests of justice; and (b) a duty to comply with rules of conduct of the body relating to the right and approved for the purposes of this section; and those duties shall override any obligation which the person may have (otherwise than under the criminal law) if it is inconsistent with them.] (5) In this section— “authorised body" means (a) the Law Society; (aa) the General Council of the Bar; (ab) the Institute of Legal Executives; and (b) any professional or other body which has been designated by Order in Council as an authorised body for the purposes of this section; “appropriate authorised body", in relation to any person claiming to be entitled to any right to conduct litigation by virtue of subsection (2)(a), means the authorised body (a) granting that right; and (b) of which that person is a member; “qualification regulations", in relation to an authorised body, means regulations (however they may be described) as to the education and training which members of that body must receive in order to be entitled to any right to conduct litigation granted by it; and “rules of conduct", in relation to any authorised body, means rules (however they may be described) as to the conduct required of members of that body in exercising any right to conduct litigation granted by it. Making an application to set aside judgment is conducting litigation and accordingly, unless the person conducting the ltigation is authorised by section 28, that application was always susceptable to striknig out for being an application made by a person lacking authority to make it. That is why you have been told by the court to find a solicitor, ie a person having a right to conduct litigation. I confirm if the Defendant is not going to make the application to set aside judgment herself, any application made on her behalf must be made by a solicitor or other person authorised under section 28. After saying all this, so long as the application is made by an authorised person the essential considerations for the court will be whether the Defendant can show she has reasonable grounds for successfully defending the claim. These grounds haven't been discussed as yet. Mind you, since you've only got until 25 September, you're better off spending your time providing detailed instructions to a solicitor rather than this forum. x20
  5. The PF85A is a simple document used to certify an opponent's non-compliance with an unless order and gain the consequential advantages the unless order afforded. It has nothing to do with costs assessment proceedings. To begin detailed assessment proceedings you will need to complete a N252 and attach a bill of costs and the order giving rise to your costs entitlement and send these to the paying party. x20
  6. The question here is whether the mis-dating of an agreement after it's execution has the effect of nullifying that agreement. Such a question raises the Rule in Pigot's Case of 1614 which essentially is, if an alteration howsoever is made in a material part of a deed after its execution, by or with the consent of any party to or person entitled under it, but without the consent of the party or parties liable under it, the deed is made void. The next question is therefore, is the alteration 'material'? The insertion of a date the effect of which is to alter by escalating the party liable's obligations over and above that contracted for seems to me to be material and I would therefore be inclined to so argue. x20
  7. I agree with CB. An entitlement to any of those things set out at Consumer Credit Act 1974 section 87 (1)(a) to (e) is subject to prior service of a default notice in accordance with section 88, giving to the debtor not less than 14 days following service to comply. Section 88(2) says A date specified under subsection (1) must not be less than 14 days after the date of service of the default notice, and the creditor or owner shall not take action such as is mentioned in section 87(1) before the date so specified or (if no requirement is made under subsection (1)) before those 14 days have elapsed. Any attempt to claim the entitlements before the expiration of the period of time for compliance (being not less than 14 days following service) would amount to a breach of section 88(2) and any notice of termination of the agreement delivered within the period allowed for compliance would in my opinion, constitute an unlawful termination of it. x20
  8. A pity you didn't submit a costs claim of your own, but well done on defeating a professional. x20
  9. The requirement for the delivery of documents including expert reports is a reference to the disclosure of documentary evidence. A document is defined by CPR 31.4. Statutes and properly cited law reports are not examples of evidence. Of course, statutes and law reports have their place in the course of legal submissions and the decision making process. Such documents can be rolled out immediately prior to the hearing commencing or as annexures to a skelton argument if any. The wording of the order indicates to me your case is allocated to the small claims track so a skeleton argument is perhaps over the top. Just take any law reports or statutes etc to court with you and hand out a copy to your opponent. There seems to me to be little point in showing your opponent any more cards than you need to and you can bet your bottom dollar your opponent will adopt the same approach. Sorry, I can't find the 1980 regulations you are looking for. x20
  10. If you have not filed a N244 application notice the court can not be guaranteed to entertain an application to strike out or give summary judgment or pass some onerous order on your opponent. That would be so regardless of whatever day of the week it is. The court will treat the hearing as a CMC and address standard case management directions. A failure to comply with a previous order of the court can be dealt with by the DJ but to make sure, file your N244. Don't think the court will make contentious decisions on a straghtforward CMC unles there's a proper application with evidence. Further, don't expect to be awarded the costs of an application you haven't made. x20
  11. The meat and potatoes in all of this is whether the money is due to you. Since he's made an application to set aside the judgment I'd expect to see his defence made out in the evidence supporting the application. There doesn't seem to be much offered in opposition or dealing with delay. Or at least, you haven't told us what his defence is. Arguing the absence of a certificate of service seems like desperation. Arguing irregularity in service may have legs though. What does he say on irregularity? Why do you say the court messed up? The power to set aside is indeed discretionary if the application is made under CPR 13.3. x20
  12. Guz, The fixing of a hearing suggests a litigant has applied for one. In simple terms and in the sphere of costs, a hearing is only fixed after the receiving party has submitted a bill and the paying party has submitted Points of Dispute. If the paying party does not submit Points of Dispute the paying party is treated as 'content' and all the receiving party need do is ask the court for a default costs certificate for the amount of his bill. As I understand things, you submitted a bill without first obtaining an order for the paying party to pay your costs. Yet all the same and as far as I recall, the paying party has not served Points of Dispute. So why a hearing? If the paying party has served Points of Dispute you'd better let us know and the nature of the Points being taken. All the same, what I have said is the usual procedure. If the DJ is tackling things in a different way, comply with what the DJ wants you to do. x20
  13. Rob, A District Judge has already ruled against you on the question whether you have reasonable prospects of success. He decided you didn't. A decision to refuse your application to set aside the default judgment is a decision which finally determines the claim against you. If you want that decision reviewed you may only do so via the appeal route. You appeal to a senior judge (ie a Circuit Judge of the County Court). You do not successfully overturn a District Judge's decision by application on Form N244 to the same or another District Judge to set aside the decison refusing to set aside. Any application on that basis will be dismissed. The appeal procedure is indeed codified under CPR Part 52. Have a good read of that, especially the Practice Direction PD 52. The application is made by Appellant's Notice in Form N161. You have 21 days from the decision (4 September?) to lodge your Appellant's Notice. I suggest you look through the form and have a good read of the guidance notes at N161A aswell. I imagine since your judgment was by default, the case was never allocated to a track. If by chance it was allocated to the small claims track, let us know. x20
  14. Rob, CitizenB asked me to take a look at the result of your application to set aside a default judgment described at post no 107. Simply put, your one and only remedy now is to appeal the DJ's decision. My initial thoughts are as follows: THe DJ was wrong to accept a fax of a letter from a solicitor attaching what was purported to be a notice of assignment. THe DJ should only receive evidence recognisable as such, that is oral testimony, or an affidavit or verified witness statement exhibiting the document and verifying it as true. The DJ was wrong to rule on the fax letter without first establishing the reason for lateness, the failure to submit the same as an exhibit to an affidavit or witness statement and if satisfied with those explanations, then giving you an opportunity to review by adjourning the aplication and awarding the costs of the adjournment to you. The DJ was wrong to decline to set aside a default judgment if the judgment was based upon an allegation in the Particulars of Claim which was false or was based upon a crucial fact or matter but which fact or matter was omitted from the Particulars of Claim. Either the Particulars of Claim pleaded the right to the money by assignment or it didn't. There may be other grounds but I would need time to run through all the thread and read any papers. the essence is this though: On an application to set aside a default judgment it is necessary to show you have a reasonable prospect of successfully defending the claim at trial. That is a prospect which is 'not fanciful.' If you can show that, you ought to be given permission to defend provided your application to set aside was made promptly. x20
  15. Guz, Let's see if I've got this straight. You have filed an application (N244 plus fee right?) to strike your opponent out on the grounds that it had failed to give disclosure in compliance with an order of the court. The hearing of your application is to coincide with a CMC next Tuesday when the court will give case management directions. I also take it that the opponent has still not complied with the order? What excuse does the opponent offer? My view is that as part of the case management directions, unless it has already done so, the court will make an 'unless order'. That is, an order which says, in terms: 'Unless the opponent complies with the order of (date) by giving disclosure of (desacription of document) to GG by 4:00pm on (date) the Particulars of Claim shall stand stand struck out and the claim dismissed and (GG) shall be at liberty without further order of the court, to apply for judgment upon his defence and for his costs of the case to be paid by (the opponent) to be assessed on the standard basis if not agreed.' For reasons which will be obvious therefore, I doubt the court has already made an unless order because if the opponent was already in breach of an unless order there wouldn't be any need for you to apply the court to strike out. A failure to comply with the unless order is where the PF85A comes in. I'd go to court armed with a statement of costs which I had served on the opponent not less than 24 hours before the hearing. Assuming the court makes an order against the opponent upon your application, ask the judge to award you the costs of the application and present your costs statement to enable him to summarily assess those costs. If the court strikes out the claim at the hearing, ask the court to award you the costs of the case to be paid by the opponent to be assessed on the standard basis if not agreed. Those costs will, as you know, be subject to litigant in person limitations. A skeleton argument ought not to be necessary on an application to strike out or for a sanction owing to a failure to give disclosure pursuant to a court order. It's factual and usually uncomplicated. There has either been compliance or there hasn't. Your application notice ought to have included a built-in or separate supporting witness statement exhibiting any documents you intended to rely on. The only occasion I would expect you to want to rely on a second or subsidiary witness statement would be where some witness statement had been filed in opposition which you wished to answer. At the CMC the court will probavbly bolt on some directions which will flow on from the opponent's compliance with the order dealing with disclosure. Typically the directions will involve standard disclosure of documents, whether expert evidence is to be admitted and if so the form of that evidence, the exchange of lay witness statements of fact, and arrangements for trial. x20
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