Cowboy builders gets default judgment bef **Claim Dismissed/Counter Successful now to execute Judgment**

[tm166]

Can I have some help with this matter.

 

A cowboy builders has got a default judgment before the the 28 day allowed to file a defence.

 

Claim sent by court on 1st Feb (second class), claim form marked served on 6th Feb.

 

Sent in acknowledgment within 14 days, handed in court and obtained slip as proof.

 

Sent in full defence, witness statement and evidence on 1st March and obtained slip as proof.

 

Default judgment made on 28th March and received on 3rd March.

 

I know the the judgement was obtained incorrectly, but how do I get it set aside,

do I simple write a letter to the court of the error.

or do I have to fill in a form and obtain an order for set aside.

Also do the courts not check the dates before making judgement.

 

Also do they not check the validity of the claim.

 

In this case the there is no legal bases.

 

In this case the cowboy builder was threatened with legal action under the sales of goods act for poor quality of his work.

 

Knowing that a claim was going to be made in court, for some reason decides to take the mater to court him self

and is demanding full payment of invoice, when also acknowledging that work still needs to be complited.

 

forget to mention that in his witness statement make a number of false statement which can be proven with letter he has sent.

 

Furthermore has created a new set of invoices to exaggerate the agreed amount for the work, have original to prove this.

Edited March 4, 2012 by tm166

[asokn]

You may just want to clarify these dates, DJ made on 28th and received on 3rd?

 

Anyway, assuming that the time for entering a defence had not passed you are entitled to apply to have the judgment set aside using form N244. You need only point out the various dates and make reference to having filed a defence within the time period and, as long as you're correct, the judgment must be set aside. Although these hearings are usually based on the court's discretionary powers to set aside this will be based on mandatory grounds so you may avoid the need for a hearing.

 

You raise an interesting query regarding whether the court checks the validity of the claim. The short answer is no as this is for the judge to do. If you think the claim is totally unmeritorious and bound to fail you may want to consider including a request to strike it out in your application, that will require a hearing though.

[gezwee]

Assuming the service date you note is accurate, ring the court on Monday morning advising them of their procedural error. Follow it up with an e-mail/fax to the court manager. They should reverse order and reset the clock on receipt, no requirement for an application fee for errors such as this.

 

If the court is close enough to home I'd be inclined to pop in there and ask them what they're playing at

 

Gez

[asokn]

It'd be interesting to take the above advice first, you may well save yourself an application fee.

[unclebulgaria67]

One or two court claims ?

 

Appears from what the OP is saying, that they were taking the builder to court and then separately without their knowledge, he made a claim against them.

 

Question is whether the OP received the separate court claim the builder made. If not, then they will need to set aside.

 

Think they need to visit their local county court to find out what is going on.

[tm166]

I have attached the judgment and delivery proof, also the claim form received was marked hand written "served 6th February 12"

Edited March 4, 2012 by tm166

[tm166]

There is only one claim, by the builder.

 

A final notice was sent to builder on 7th January giving him 14 day to make the refund or the mater will be taken to court.

 

From the court claim form it seams that he handed the claim into court on 24th Jan, then the court took a week to process the claim and posted it on the 1st Feb using second class mail.

 

I also forget to mention the builder is using a local legal firm to make replies to the letter we sent him and the witness statement seam to be written by them, but claim summated in builders name.

[unclebulgaria67]

I think you are going to have to visit Bradford court and see what is going on. Perhaps someone at the court, has not noted their records and the builder has won by default. They need to look into this.

[gezwee]

tm

 

You need to remove the judgment attachment, all your details are visible on loading pdf

 

Gez

[tm166]

what you mean by noted their records.

 

I feel the best way to deal with mater is also to make a complaint to the court in writing as well as making a request to have the judgement set aside. The reason being is I have lost faith in the court, the following was included in the witness statement.

 

 

23. I informed the claimant that I would be pursuing the matter further via legal means, to which the client stated that “one of his cousin-sisters was a Solicitor and another was a Judge so go ahead”.

[gezwee]

tm

 

It's a procedural error, nothing more and nothing less...... they've probably transposed the filing date as service date and allowed a default judgment to pass uncontested.

 

Ring the court [better still, visit the court] and ask them to rectify, parties to case should receive amended order within a few days so that the case can progress to aq

 

Gez

 

Oh and, don't forget to take your earlier attachment down

[tm166]

Did try to take out the details, but it seems that did not work, have amended them, so could to let me know if they are ok.

[gezwee]

Hi tm

 

Yep, both appear OK now

 

Get the court sorted tomorrow, and [assuming you need further assistance] with the process of your defence and counter post back on here. Should be able to find you plenty of assistance.

 

Gez

[tm166]

Also what do the courts do when some makes a false statement on their witness statement, do they take action against them or does it get ignored. The reason why I ask it the claimants witness statement if full or lies and these can be shown to be untrue, is this not contempt of court.

[gezwee]

Solicitors make false representations in court every day, it's nothing unusual........ inferior [county] courts seem to take the view that the party showing the least candour is best penalised with a costs order.

 

As far as contempt is concerned, it's really a matter for the court to decide as the case progresses. If it feels it is in the public interest to pursue, it will act.

 

Don't get too hung up on it for now.

 

Gez

[tm166]

Is it ok to combine the the Defence statement and counter claim into one document, did not see the point in doing the defence statement and then copy most of it onto the counter claim document and the grounds for the counter claim.

 

The document was headed "Defence statement / Counter claim", and the counter claim was put at the end of the document under a sub heading.

[gezwee]

Don't see why not, all falls within part 20........ if the counter is filed with the defence it doesn't require permission of the court.

 

They may have liked the particulars to be separately headed but its hardly prejudicial, and as a Litigant in person they should allow some flexibility.

 

Link to CPR part 20 http://www.justice.gov.uk/courts/procedure-rules/civil/contents/parts/part20#IDAZH1HC

 

Gez

 

 

 

For reference, I've added a link below to CPR 3.10 [procedural error remedy]

 

http://www.justice.gov.uk/courts/procedure-rules/civil/contents/parts/part03

Edited March 4, 2012 by gezwee

[tm166]

Phoned the court and been told that they did not receive the acknowledgment, somehow I though I would be told that. Will be going to court to provide proof.

 

tm

 

It's a procedural error, nothing more and nothing less...... they've probably transposed the filing date as service date and allowed a default judgment to pass uncontested.

 

Ring the court [better still, visit the court] and ask them to rectify, parties to case should receive amended order within a few days so that the case can progress to aq

 

Gez

 

Oh and, don't forget to take your earlier attachment down

[wonky100]

Hello tm166

 

I too am being sued by a cowboy builder.

 

In my case the cowboy builder has lied on the particulars of claim (I too have evidence), didn't return their aq on time, have employed "solicitors" who weren't authorised to litigate (the Courts advised that they are too busy to validate) and haven't complied with a number of court directions (thus having provided no evidence in support of their case so far). However, the Courts allow the proceedings to continue.

 

In addition to incurring costs to defend myself, I have had to pay out for various applications. With very little chance of recovering these costs if I am successful due to the the claimant being a ltd co.

 

Like you, I have little faith in the judicial system.

 

However, on a positive, I have received some great assistance on CAG which has given me the confidence to defend as a lip.

 

Hope you manage to sort in Court today.

[gezwee]

Phoned the court and been told that they did not receive the acknowledgment, somehow I though I would be told that. Will be going to court to provide proof.

 

Did you manage to resolve this?

 

Gez

[tm166]

Yes it is sorted, initial would not accep that the acknowledgment was filed but when told that I have proof. Was told that he will look into it and phone back.

 

Was told that it had been left in the acknowledgment box. For some reason I believe that the box was not looked at for 3 weeks.

 

When I questioned courts failure, was told that this happens all the time and will continue to happed. It's a good thing that these people don't work in the contruction industry, if any one killed or injured, ups sorry human error can't do nothing about it.

[tm166]

Will be making a compliant and demanding compensation.

 

Due to the court issuing the ccj and then passing this information to third parties are they not in breach of the data protection act due to the fact the judgement was invalid in law.

 

received a letter from some debit advice company.

[gezwee]

Hi tm

 

Pleased that you got to the bottom of the issue, as for the complaint...... really not sure - would certainly be seeking some answers though.

 

As with pretty much everything now its probably best to follow the complaints procedure. The ccj [having just been issued] shouldn't be registered yet.

 

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/ex343_e.pdf

 

Assume they have now confirmed you'll receive new orders?

 

Gez

[tm166]

Forgot mention they were very efficient in retuning my defence and counter claim. Handed in on Thursday and posted back on Friday. So will have to take that back to the court when received.

[asokn]

You absolutely should complain but I don't imagine you'll get any compensation beyond a minimal goodwill gesture (HMCTS is publicly funded after all) so I wouldn't invest too much time in this issue.