defendant asking for judgement set aside- when i have followed the protocol why should this be allowed

[kenickie12]

Hi There ,I am new to this forum i found it when trying to find answers to my problem and wondered if anyone can help.I am sorry if this offends anyone who is innocently found to have a judgement by default but to those who have wronged why should the judicial system be leanient and let somewone who blatently disregarded the legal process then be allowed to apply to set aside judgement.

I wonder if anyone knows of any case law where the judge has refused the set aside.

My case is i bought a horse and found out it had a declarable condition in the form of a vet letter confirming the diagnosis. the girl lied to myself about him having a condition however it turned out to be true I gave her 5 weeks of letters as part of a pre court protocol the last letter 'of without prejudice' 21 days then i had no reply so started money claim on line. I sent off my claim on line and filed with the court a form N215 (Ihave a receipt of the acknowledgement of it at northamptom) i sent this form with my letter and a covering letter explaining as i had had no corespondance from them I was persuing this in the smalls claims court with a court reference and copy of the n215 for to the defendant by special next day delivery .I have proof of delivery from the post office. The time period elapsed on money claim on line without the defendant contacting the court either on line or by written representation i clarified this before i submitted the judgement by default asking for immediate payment. I waited 1 week still nothing so I asked for a warrent of execution this was issued on the 25th Nov and on this monday morning they have applied for the judgement to be set aside and any warrents to he halted.

Surely if i have followed the law to the letter they have blatently disregarded the court how can they possibly be allowed now to set it aside. They had receipt of it she was not out of the country or ill or infirmed she was off enyoying herself i have proof of this.

 

I am so vexed at the system it appears there to protect the wrong people. If I had not followed the protocol I would not be allowed to proceed!!!

 

Please any advise would be greatly appreciated as I unfortunatly have read that most set a sides get granted!!!!

I am so mad about this what happens to the fees I have allready paid as well?

 

I have read section 12 and 13 of the policy and it does say reasonable grounds but isnt 5 weeks pre court and 16 days MCOL enough!!!

 

Please please any advise as i feel now i am in the wrong...what happened to justice.:-x

[nicklea]

What a set aside means is that things go back to the start of the claim. The defendant has another chance to reply to the Claim Form and explain their situation.They would have had to pay a fee to do this so I presume that they are serious about wanting to defend it this time. It does not mean that the court has found in favour of the defendant, just that they get to put their defence in and you both have your day in court.

 

Have a read here:-

 

http://www.nationaldebtline.co.uk/england_wales/factsheet.php?page=12_how_to_set_aside_a_judgment_in_the_county_court

 

The setaside hasn't been granted yet and the defendant must show that they have a reasonable defence.

 

However, you may get another default judgement against them - stranger things have happened - and, I would suggest, it is unlikely that they would be able to set aside a second default judgement.

[kenickie12]

I realise that but seen as they have had 5 weeks pre action protocol... then the what amounted to 17 days from the court...those letters clearly say DO NOT IGNOR these letters!!! They did ...why now when I have paid another £100 to sent a warrent of execution...do they wake up and smell the roses!!!! If i had incorrecly filled in the form it would have cost me to amend it or get thrown out. They have had ample time ...to respond and put a defence why should it be allowed now it makes an ass out of the whole system (excuse my language ) but it really does ...and time goes on and draggs this whole thing out more cost to the tax payers ( but guess thats another story)... In section 12 and 13 of the CPR it says there should be strong grounds the papers were executed on time the time limit expired we have receipt of delivery and still now they can do this .IT is so wrong and wondered if anyone had any case law od the se aside being denied. This would be helpfull. Thanks in advance

[ploddertom]

You should wait and see on what grounds they have applied - they have to send you a copy, and you can oppose their application.

 

I suspect you have paid a fair bit for this horse but depending on the value of your claim you should have transferred the Judgment through the High Court and employed High Court Enforcement Officers to collect for you - they are much more tenacious than the Court Bailiff.

 

PT

[MARTIN3030]

There will be a hearing,at which point the defendant will need to show very good reasons for setting aside.

Its important that you go to that hearing and oppose it.

I agree with PT too-if the application is refused,you should pass the warrant to a HCEO.

In addition you should be considering recovering any additional costs.

[kenickie12]

Hi ,I paid £4300 for this show cob , I had him vetted (of corse) because the problem is one that manifests itself in sprin/early summer he was symptom free on the vetting my issue is not at all with my vet but the young girl ,blatently concealed this in the sale despite her being asked about common horse issues ...then she denied the vet letter that I found in his documentation.I discussed this with her vet and it was for him!! I did offer in one of my letters as the one and only reply I got from her said the letter was speculative at best.I did offer if her vet wrote to me that he did not have this diagnosis then i would drop my complaint ..they have not..

If we go to a hearing i need strong support to stop further waste of my time and the court!!!

Isnt going to HCEo alot more expensive? II just feel that she has had her chance to discuss it and she hasnt replied so how are we the innocent who follow the correct protocol to the letter protected. I know i will have to see on what grounds they are asking for the set a side, so i can contest it but that may mean 2 court visits...especially if they usually buckle and grant them!!

[MARTIN3030]

You have very good arguements under CPR -abuse of process.

 

A HCEO will recover any additional costs including the fee.

They dont mess about;

1.Work 24/7

 

2.Will make multiple visits if needed.

 

3.Will not pre notify the defendant of their attendance.

 

4.Will recover both the value of the warrant-and your costs.

 

In view of the behaviour of the defendant so far-you should not be looking to enforce by using a County Court Bailiff

[ploddertom]

Transfer charge to HCEO is £50 - half that of the Court Bailiff. If however they have no success there is an Abortive fee of approx £60 +VAT to pay. I would suspect your claim will succeed given your proof of their failure to comply, but then the defendant will go for a Variation and agree a low monthly payment!

 

PT

[MARTIN3030]

In consideration of their application,they will have to show the Court that they have a reasonable case to succesfully defend the claim.

[kenickie12]

The whoe claim in fairness isnt about the money...I have asked for £1000 .This has been calculated as a specialised rug is £250 , i have been told he will need a new one each year and one for spare incase he rips it also due to this i cant insure this aspect of his health in equine insurance as the exclude this condition for life...also he is less desirable as no one wants a horse with this condition..Had i of known I would not have een gone to see him no matter how fantastic he was.

 

The principle is she lied and deceived me in my purchase and she should be made accountable for her actions...I will let you all know on what grounds she is asking for a set aside i should now on friday...

 

Will it not antagonise the judge though if I use trems like abuse of the process is it not him I have to softly softly appeal to??

[ploddertom]

Walk before you run and wait and see what the gounds are first.

 

PT

[MARTIN3030]

Will it not antagonise the judge though if I use trems like abuse of the process

 

Well failing to Comply with Court instructions is an abuse of process-and they neither acknowledged service nor submitted and defence right ?

 

Usual excuses for this are that they did not rec the Court docs-wrong address/not at home to respond etc.

Or could be that they will say that the POCs are not in order-are you certain they were filed against the right name ?

 

As has been said-you can only know once their grounds for seeking suspending of the warrant and set aside of default judgement are clearer.

[sequenci]

Lets just say this person gets there set-aside. There will be a hearing to consider the CCJ. The judge will make an order based upon the balance of probabilities. If you have this Vet's letter as evidence that the other party lied it's likely you'll get your judgement, again + your reasonable costs.

[Mr Worried]

Hi K12

 

WOW This scenario is awfull for you, however we can all bleat on about why this and why that, you need to wait till Friday and see what her reason is for the set aside then let us all know and we can advise further but whatever the outcome is you need to transfere to a HCEO as they have more power and are very assertive ( believe me ) see also ' Martin 3030'

 

If the defendent has a little savvy they may apply for a variation order which will allow them to pay the judgement amount orderd to you over a period of time at ( Their ) ammount , once agreed, that is as good as it will get I'm afraid but then again they may Buckle once the HCEO is on the scene?

 

Sorry its been a bit negative, but these are the hard facts, I have the oversized T shirt.

 

Mr Wary

[kenickie12]

Many thanks for all your advise .I will let you know what the conditions for the set aside ..and we shall take it from there!!

[sequenci]

 

If the defendent has a little savvy they may apply for a variation order which will allow them to pay the judgement amount orderd to you over a period of time at ( Their ) ammount , once agreed, that is as good as it will get I'm afraid but then again they may Buckle once the HCEO is on the scene?

 

 

Not strictly true as the claimant is able to vary a judgment too, also if there is just one missed payment then the order defaults and enforcement is possible.

[Mr Worried]

Good, speak soon

 

 

Many thanks for all your advise .I will let you know what the conditions for the set aside ..and we shall take it from there!!

[ploddertom]

There is another side to this as well and that is the defendant could come on here and ask how to go about defending any claims, of course the chances are they will get help as well.

 

PT

[kenickie12]

Oh I realise that...Unfortunatly on the internet there are loads of sites and advise of how to get out of this...One of the reasons for me joining was unfortunatly there wasnt may on how to support the other way round!!

Just compiling all my evidence ..the number of chances thay had to have some sort of dialogue with me instead they have put their head in the sand and decided to just think I will go away. There is nothing like a wonan scorned can I say!!!!

It just brings out the fighting side of me .I spend all my life doing the right thing towing the line following the principles and it irritates me when people out there think they are abouve this.. rant over...it really makes me mad though deceipt.

[kenickie12]

thought i would have had some notification as to why they have asked for set aside and what they have applied but i have just been told my file has gone to the District judge and i would not be further notified until he/she returned it:| so its a waiting game. i have been over all my paper work i have delivery signed receipts for them all so they cant say they did not know about it!!!

[kenickie12]

Hi Folks,asking for further advice.. I have found out what the reason for judgement to be set aside ; They have said Royal Mail failed to deliver the response pack and defence counter claim in good time(6 days).

That is the exact words on the form they have sent a further vet letter avoiding the issue of diagnosis and saying no confirmed diagnosis was made on the day!! and a farrier letter saying he had not seen any sweet itch....My vet said the horses feet were the worst he had seen done on a quality horse for a long time and pointed this out as an essential task for my farrier ..so i dispute his opinion but the vet is side tracking..think she is a friend!!

 

Anyway for the main reason to set this aside ..I sent them a covering letter a copy of the n215 as printed off the money claim on line web site and this was sent by recorded delivery I have tracking number and signed evidence it was received so again they are telling fibs...Surely this cant be allowed...I have made my decision with the evidence i have with the vet letter with the paper work at the time denoting his current diagnosis used to claim £275 ish for a specialized vet rug to manage his condition. This rug was bought...!! Please any advise on my situation would be very helpfull xx

[kenickie12]

Hi Folks,asking for further advice.. I have found out what the reason for judgement to be set aside ; They have said Royal Mail failed to deliver the response pack and defence counter claim in good time(6 days).

That is the exact words on the form they have sent a further vet letter avoiding the issue of diagnosis and saying no confirmed diagnosis was made on the day!! and a farrier letter saying he had not seen any sweet itch....My vet said the horses feet were the worst he had seen done on a quality horse for a long time and pointed this out as an essential task for my farrier ..so i dispute his opinion but the vet is side tracking..think she is a friend!!

 

Anyway for the main reason to set this aside ..I sent them a covering letter a copy of the n215 as printed off the money claim on line web site and this was sent by recorded delivery I have tracking number and signed evidence it was received so again they are telling fibs...Surely this cant be allowed...I have made my decision with the evidence i have with the vet letter with the paper work at the time denoting his current diagnosis used to claim £275 ish for a specialized vet rug to manage his condition. This rug was bought...!! Please any advise on my situation would be very helpfull xx

[kenickie12]

Please any advise would be helpfull nobody has responded...

[Mr Worried]

Hi K

 

Okay so they have set aside, when is the court date? you will attend with the defendant and both parties will explain to the judge your side of the story, the judge will decide what happens hopefully you can both sort it out on the day.

 

Mr

[kenickie12]

its in January , however I have read that they cant legally say the reason for asking for a set aside as being down to the royal mail failing to deliver in time...this is their reason ...[They have said Royal Mail failed to deliver the response pack and defence counter claim in good time(6 days).

 

Under what aspect of the law can i argue this is not a good enough reason?