Default Judgment Set-Aside

[Dangermouse]

Hi all

 

Any help please as I am in court tomorrow afternoon. However, I am the claimant in this case not the defendant.

 

I obtained a default judgment against a citizen of another commonwealth country, I went through all the proper procedures, aplied for permission ex juris etc etc. However, I do think that the court messed up in the advice they gave me. The court served the claim form which I was a bit surprised about, the court then dealt a week later with my application to serve ex-juris. The ex-juris was granted but extended the time for reply to claim form to 21 days.

 

I also sent a copy of the claim form to the defendant. The defendant had his lawyer call the court when he received the documents and this has been acknowledged in his witness statement. He also emailed me when he received it.

 

I eventually applied for judgment in default as the defendant didn't contest jurisdiction or put in a defence. The upshot was that when the defendant received notification of the judgment he sent me through his lawyer £35,000 which was a part payment. That was in April 2008.

 

I have been chasing him for the balance of the money (which is not inconsiderable) and he has now applied to the county court here in the UK to have the judgment set aside on the basis that there was some irregularity in service. The defendant made an ex-parte application for it to be dealt with without a hearing, although the court decided a hearing would have to be held.

 

This is being heard tomorrow at 14:00. I have already written to the court stating 1/ The Defendant has no prospect of a defence (there are signed documents by him and his lawyer about the monies owed)

2/ That if he had a problem with the judgment he should have applied to have t set aside over a year ago.

 

As I understand it, the Defendant is trying to claim that I did not supply the court with a certificate of service. In fact the court would not give me the Judgment until I wrote them a letter statng that the court itself had served the claim but that I had also sent a copy.

 

Does anybody have any idea about the CR rules on this? Is the power to set aside judgment, a discretionary ower of the judge?

 

My argument would be.

 

a) There is no doubt the claim was received.

b) There is no doubt that the Defendant new that the ex-juris application had been granted.

c) The Defendant has offered no evidence at all that he has already paid the amounts & hasn't (cannot) challenge the fact that there are documents stating that the money is owed.

d) The Defendant has not applied in a timely manner.

c) The defendant has also accepted liability by paying me half the money.

 

Can anybody help me with a form of words that I can use to 'sum up' my objection to the set aside?

 

Help....

 

 

 

Dangermouse

 

 

There is no doubt that the defendant received the claim form

[Spamalot]

Hiya.. you've posted in the wrong forum.. I'll get a mod to move it for you..

[Dangermouse]

sorry about that & thanks

[surfaceagentx20]

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

[Dangermouse]

X20

 

He has provided no evidence that the money is not due & as I have said paid half what was due after judgment was entered.

 

I don't know for sure that the court messed up, I only say this because I followed the court's instructions to the letter to obtain judgment. The exact phrase of the other side on the N244 application is that judgment should be set aside because ' it was incorrectly entered as the claim had not been properly served and the court had not been provided with a certificate of service'

 

Dangermouse

[Dangermouse]

I just had a look at the Ministry of Justice website regarding set aside.

 

It states in section 12.3 Conditions to be satisfied " Rule 6.17 provides that where the claim form is served by the Claimant, the Claimant may not obtain default judgment unless a certificate of service has been filed"

 

When I said that the court may have erred, it was because the court itself served the claim form on the defendant & the defendant received it. When I applied for default judgment, the court office stated that I needed to supply a certificate of service. I explained that the court had served the claim & eventually I was given the judgment.

 

Dangermouse

[Dangermouse]

I won

 

Thanks for the advice tx20.

 

Dangermouse

[Spamalot]

Congratulations..

 

well done.. Spam.

[Dangermouse]

Thanks Spam

 

I feel very happy, the barrister on the other side was very dejected having been quite snotty before we went in. To make me even happier, the solicitors acting for the other side sent me the account for their costs of today's hearing (received when I got home). Presumably they were expecting that I was going to have to pay their £3.5k!

 

Dangermouse

[surfaceagentx20]

A pity you didn't submit a costs claim of your own, but well done on defeating a professional.

 

x20