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Posts posted by genie101

  1. The rules the Judge will have to apply are set out here. Have a read in advance of the hearing.


    He will need to explain why he didn't file his defence in time. If he delayed making the application it could be tough for him as delay can be difficult to overcome, as set out here.


    In balance though, if he can show he has a reasonable defence to the claim, the judgment will probably be set aside and the claim will proceed to a trial at a later date.

  2. You need to concentrate on preparing your case for the trial and ensuring any deadline for filing and serving documents / evidence is met. You need to check the previous court orders but it would be unusual for the court to allow an expert at a small claim trial. The court prefers all expert evidence to be in writing, with questions being put to him and replied to well in advance of trial.


    If you don't want to pursue the claim and defend the counterclaim any further, you need to strike a deal with the defendant.


    If you want it all to come to an end, you could suggest a drop hands and walk away settlement - you don't pursue your claim (and costs) and the defendant doesn't pursue its counterclaim (and costs). If you strike a deal, you need to inform the court as soon as you can, ideally with the terms agreed in writing by both you and the defendant.

  3. This sounds as if it is going to go to trial because she is clearly an unreasonable individual.


    Summary judgment applications are difficult as there is a high burden for you to overcome. Basically, you have to prove her defence is hopeless and fanciful. From experience, where the matter rests largely upon who is telling the truth and who is lying, Judges are reluctant to grant summary judgment as there is always some chance that the defendant's version of events will be preferred at trial. The Judge at a summary judgment hearing will not deal with the matter in the same way as a trial. He will not be drawn into the detail of the evidence - he will concentrate on the legal arguments and whether she has a defence in law with a chance of success. The application will need a hearing so the court application fee would be £80. If the application were unsuccessful, you would not be able to recover that sum.


    If you want to pursue the application, you should first call the court to obtain an indication of when the hearing would likely take place.

  4. Unlike court issue fees to commence a claim, the enforcement fees are fixed regardless of value (that is the position in England & Wales, and I anticipate it will be the same in Scotland).


    Unfortunately, spending money on enforcement fees might see you left further out of pocket if there are no assets to enforce against - it sounds as if the trading company running the hotel is a different company. You might want to write to the debtor with a copy of the judgment, notifying that you will shortly be sending the bailiff round unless they pay within 7 days. Having a bailiff in their reception could be embarrassing to a hotel.

  5. 1. By filing an acknowledgment of service, the defendant has 28 days from "deemed service" to file (at court) and serve (on you) a defence. The court can confirm the date of deemed service for you, which is usually the second day after it posts the claim form to the defendant.

    2. It depends what you mean when you say "add to". If the defend the matter, you will be given the opportunity to file and serve the documents and information you want to rely upon before trial. You can then add more detail as to what was said, your legal authority, calculation of losses etc. What you might not be able to do easily, is change the sum you are seeking to recover - that might need an amendment to your claim.

    • Confused 1
  6. Your legal expenses policy, under which the solicitors are being paid, is not an open cheque for legal costs. The insurers will want to limit their exposure and will likely encourage a commercial settlement between the parties if one can be reached. From the sound of it, the builder might not be reasonable so the matter may go all the way to trial.


    There will soon be a point when you are asked if you want to mediate the matter. You will need to discuss this with your solicitor but on the whole, it is worthwhile trying as if it settles on favourable terms - great, but it if doesn't settle there is nothing lost.

  7. If you aren't getting anywhere with the other side, you might just want to put this in the hands of the court. Some Judges can be very lenient and bend over backwards to help people who need time to pay. Some however, believe creditors should not be deprived their money.


    The court may be prepared to permit payment to be made by instalments under CPR 40.11(a) if it is satisfied that the payments are likely to be met.

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