Judge has overturned a regularly-obtained judgment - can he ?

[macantab77]

Hi, Please can someone help? I can't afford a solicitor, having been charged £1600 to write two letters I had to let him go.

 

I am suing two defendants. One admitted. The other acknowledged the claim but didn't file a defence by the due date (August 9). On 12 August I filed for a default judgment against the latter, and returned the appropriate form in respect of the guy who admitted.

 

On 23 August judgment was made in my favour, for an amount to be decided by the court (unspecified claim).

 

However...on 17 August a defence had been faxed to the Court (it's unclear whether the judge who made the judgment on 23 August knew this, but anyway the Defence was still late).

 

The defence filed an application to set aside the judgment, not on grounds of a procedural error but because "the defence has a reasonable chance of success".

 

The hearing was yesterday. The defence had written in asking for a decision to be made on the basis of the papers.

 

It was a different judge from the one who made the original judgment. He started out by saying 'this is a muddle' and seemed to be under the impression that I'd failed to file a request for default judgment. Having put him right on that, he seemed to be saying that the default judgment shouldn't have been made, because the defence has been received at the time of the judgment.

 

So he set aside the judgment, apparently without even looking at the merits of the case, and agreed that there appeared to have been a 'c*** up within the court'.

 

Can he overturn a judgment just like that? I have looked at CPR 3 and can't find anything that gives a judge that power.

 

Thank you for reading.

[Ganymede]

The case management powers of the court allow the DJs to do pretty much what they want it would seem.

 

It has been set aside now, so is essentially back to the beginning. What does the Defence say about the original debt?

[macantab77]

Is there any point in appealing?

 

It seems to me that the DJ had the power to set aside the judgment on the merits of the case, but not the power to overturn the original DJ decision just because he didn't agree with it. Surely that power is reserved to a judge at the next level up?

 

Defence looks quite weak to me (I'm not a lawyer, but did have my ex-solicitor evaluate the case). Slightly complicated: I owned a shop. D2 took out a 6-year lease, then assigned it to D1 (D2 becoming the guarantor). D1, without asking my permission, 'sub-let' to someone else - the 'arrangement' between them being that the Occupant would pay the rent to me directly (payments were by bank transfer and looked the same on my statement, hence I didn't realise - I live about 300 miles away). About 2 months before the end of the lease, the Occupant stopped paying rent, at which point I contacted D1 and learned what had happened.

 

Occupant stayed in the property for a month after the end of the lease, then closed the business but didn't return the keys for another month, during which I had no access. Hence just over 2 months rent owing (rent + mesne profits) + professional fees + dilapidations, totalling around £13,500.

 

D1 admits unpaid rent and that he allowed the Occupant in, and that he never asked or told me; defence is hazy on the mesne profits; D1 says he neither admits nor denies dilapidations. D1 denies all liability on the grounds that, by 'accepting' rent from the Occupant, I must have 'known' he was occupying and implicitly was agreeing to the occupation. D1 states that he had no access to the property at the end of the lease, therefore couldn't do anytihng about dilapidations, therefore is not liable.

 

I presented evidence to the Application hearing to show that D1 paid me insurance rent for the year Sep 08-09. I put it to the DJ that D1 is now possibly at some advantage, having seen some of my evidence earlier than he would otherwise. DJ shrugged and said that the philosophy of litigation is to make your case known to the other side.