The defendant had opportunity to attend court to put forward his case but failed to do so.

The problem, as the judge made clear in the above order, is that you failed to attend the hearing. Sending documents to the court is not sufficient and you then take your chances; the court can decide the case in your absence.

You can easily see why the courts are strict on this otherwise no-one would attend the first hearing but would instead see if they win and, if not, have the judgment set aside and attend the new hearing for a second bite at the cherry.

You don't need to receive any notice of assignment from the bank, it can come from the new creditor.

That's absolutely right, you are tryingto set aside the judgment now entered so you need to focus on your failure to attend. It will be difficult because you now say you *could* attend court so the obvious question, despite the explanation you have given which won't stand up to scrutiny, is why you failed to attend last time.

Who is this third party?

I imagine the witness can do a supplemental statement explaining his true position and giving any correct evidence he may have.

From your perspective, if nothing is done before the hearing you need only ask the witness in cross examination whether he is confident in his evidence.

Speaking in capitals is universally considered to be shouting.

As it appears that I can not give you replies in the manner you desire I will comment no further on this thread. I will say that I can not understand how on Earth you have managed to overreact to such an extreme degree to my attempts to help you.

Hi all,

 

Thanks for your quick reply,

 

First in my N244 form I wrote that the debt was my wife's, as she was the sole trader in the shop and I just worked there, I also sent a copy of the VAT registration form which states her as the sole trader.

 

The form today say's " Before District Judge Godwin sitting at Aberystwyth District Registry.

Upon reading the defendants application dated 29th March 2012

 

IT IS ORDERED THAT

 

Application to set aside be dismissed

 

Reason as I just said,

 

Roy

So it appears the order was indeed made without a hearing, in which case it must contain a statement o your right to apply to set the order aside within 7 days of service. I'll check the White book tonight for the reference if no-one gets there before me! You should be able to apply to set aside the order, a further application to set aside the original judgment would be dismissed as an abuse of process, and have a hearing listed.

The problem though is that, sooner or later, you will need to attend court to put your case and you don't seem financially able. Is there no civil court that you can travel to/get a lift to?

They could appeal or seek to set aside the order. They have 18 days from the date of service of the order to appeal it (subject to seeking an extension of time) and can apply to set it aside at any time save that promptness is a factor in deciding if the application should succeed. They can also apply for relief from sanctions (i.e. the striking out) and again have an unlimited time to do so subject to acting prompty.

There is nothing you can do but wait and see.

POC = can somebody please speak ENGLISH - it would be helpful - then I could possibly respond

There's no need to shout, it is a rather rude response to those who freely give their time and legal knowledge to you.

PoC is Particulars of Claim. You should have done one when you completed the claim form or shortly thereafter.

I see now! Yes, if successful you can generally claim your costs at £18 per hour plus disbursements but this is subject to a cap of 2/3 of what a solicitor would have received for the work done.

Others can give you more comprehensive advice on that I imagine.

Is it being suggested that someone used the OP's name to obtain credit? I must have missed that. If that is the OP's case he needs to sue his wife for fraud.

I have to say that I'm struggling to work out what your claim is for! Could you type up the PoC an any other statements of case you have produced so we can see what the judge has seen?

When does the order need to complied with?

Andyorch, I think the reason for the application has already been given. I don't see what relevance the above really has as clearly the paperwork was received and I don't believe there's any suggestion of fraud.

Anyway, to the OP; what precisely did you say in your N244? Does the latest order have a recital such as "upon hearing..." or "upon considering the file..."? That will help us to work out what is going on.

Can I claim their court costs and solicitors costs?

What do you mean by 'claim' them? If you mean to say that you should also get these costs if you win, as opposed to them getting them if they win, they no as the fees were not incurred by you and the solicitors' costs are only claimable by solicitors.

s136 LoP doesn't though state specifically who should give the notice. any case law?

I think Bateman v Hunt might be helpful.

I already spoke to court and they said to go to nearest police station

I think you've answered your own question. I presume you were bailed pending the hearing? You must hand yourself in or you risk being arrested.

I assume it was a notice to admit facts? It depends on whether the notice has been done properly and the actual reasons for the non-compliance. I have seen people use these notices in totally inappropriate ways so that not replying is a perfectly legitimate response! Also, notices are not to be used on the small claims track so that may explain the response (see CPR 27.2(1)©).

The sanction for non compliance is that it is a factor of relevance when considering what order to make about costs (see the note at 32.18.2 of the White Book).

There's not really anything you can do about it, you can't force the other side to respond.

You're correct, the claim is not statute barred as time runs up to the date of issue.

 

The amount of arrears asked for must be "True" arrears.

 

That's an interesting point on which I would welcome some discussion. As far as I know the only case dealing with this point is American Express v Rankine where HHJ Simon Brown said that a default notice can include sums which are ultimately found to not be recoverable, i.e. charges as the creditor is not required to undertake an investigation into what is and is not likely to be awarded if the matter went to court.

That's because there isn't one. It's at the discretion of the DJ.

To add to the above, it's not at all unusual for claims to be stayed for years and then be proceeded with. Ultimately you have suffered no real prejudice by the delay and have taken no steps to lift the stay yourself so I'd be surprised if the application was refused. In my opinion you should be focus your time on the substantive application for summary judgment; that is much more of an issue.

There's no apostrophe in 'Sirs'.

It may well be that you already have a trust over the property to the extent of your contribution to it. As previously suggested though this whole area is a minefield and I would endorse the suggestion that you see a solicitor.

Who paid the initial deposit?

So you did some work, he gave you some money and now is claiming it was a loan? How does he explain the work you did?

And you are welcome

I'm just answering the question you asked, these claims are not always accepted and you need to know that you will have to work to prove your case. Feel free to ignore my advice if you'd prefer but there's no need to get in a flap!

That's very true and, although the rules are more relaxed with a small claim, whichever track this was on I think you'd be entitled to an adjournment if the bank suddenly produced 6 years worth of documents for the first time in the hearing!