Urgent advise needed. Defendant has applied for judgement to be set aside.

[Number6]

How do I best handle this situation? Defendant from whom I'm claiming cash refund + costs for faulty goods sold to me.

 

Set aside hearing is 12th December; I received notification of the hearing at 3pm on Friday 7th November.

 

I cannot attend the hearing as I'm having my central heating system ripped out and replaced on that day and it's essential that I'm at home.

 

I telephoned the court immediately for advise on moving the date. The court official told me that as time was short I'm best off emailing my written reasons for opposing the application as, even if I sent the N244 first thing Monday there would not be enough time for the judge to consider it.

 

The reason on the application is that the defendant claims she didn't receive the claim pack. It is total rubbish as communications have gone back and forth via Facebook and she was advised a) I was commencing court action, b) I had commenced action, c) telling her that judgement had been entered by default and that I was sending in the bailiffs. So she knew full well at every stage of the proceedings. I have copies of the conversations.

 

I would have preferred to attend the hearing but it is simply impossible on that day.

 

Should I go for an application to move the date anyway or not?

 

If I do submit in writing could you give me some advice what to put in the submission please?

 

Many thanks in anticipation.

[ploddertom]

How do I best handle this situation? Defendant from whom I'm claiming cash refund + costs for faulty goods sold to me.

 

Set aside hearing is 12th December; I received notification of the hearing at 3pm on Friday 7th November.

 

I cannot attend the hearing as I'm having my central heating system ripped out and replaced on that day and it's essential that I'm at home. If you don't attend Set Aside will probably be granted.

 

I telephoned the court immediately for advise on moving the date. The court official told me that as time was short I'm best off emailing my written reasons for opposing the application as, even if I sent the N244 first thing Monday there would not be enough time for the judge to consider it. There's no guarantee that anything will be put before the Judge and you will probably be recorded as not appearing.

 

The reason on the application is that the defendant claims she didn't receive the claim pack. It is total rubbish as communications have gone back and forth via Facebook and she was advised a) I was commencing court action, b) I had commenced action, c) telling her that judgement had been entered by default and that I was sending in the bailiffs. So she knew full well at every stage of the proceedings. I have copies of the conversations. That's as maybe but still does not prove the documents were received.

 

I would have preferred to attend the hearing but it is simply impossible on that day.

 

Should I go for an application to move the date anyway or not?

If I do submit in writing could you give me some advice what to put in the submission please? To have a Hearing Vacated needs at short notice would usually require an illness or hospital admission, I don't think having work done at home would qualify.

Many thanks in anticipation.

 

PT

[Ganymede]

I agree with Plod.

 

You facebook chats are meaningless and probably not admissible.

 

As for your plumbing, not sure that qualifies as a reason not to attend Court.

[Number6]

To have a Hearing Vacated needs at short notice would usually require an illness or hospital admission, I don't think having work done at home would qualify.

 

Understand that reasoning but giving me two working day's notice is not exactly good practice either, is it?

 

Well there's no way I can pull the heating job at short notice either and as our existing boiler is not working cancelling the job until well after Christmas is simply not an option for a household with a disabled adult and three children.

 

As usual, it seems, the system is biased.

 

Surely if I send in a written deposition it has to be put before the judge? If it isn't would that not be an error in procedure?

 

And no, there is no proof that the defendant received the claim pack but then there can never be proof as they are sent via ordinary mail. The saved Facebook conversations prove beyond reasonable doubt that she was aware of the case being in progress at several stages and she would have had ample opportunity to raise a query with the court. Would that not count in my favour? Absolutely anyone could claim non-receipt of the claim pack and unless the courts start sending them out recorded delivery no claimant can gainsay anyone that claims non-receipt.

[Bandit127]

Apologies if this sounds a bit harsh, but you this does look a bit odd.

 

You issued a county court claim but continued to converse with the defendant on Facebook. And you want to arrange a hearing that the defendant has instigated around your kitchen?

 

I might think about asking a relative or friend to house sit while the kitchen is done. Or re-prioritise and drop the court case. I would will win no favours with a judge if I asked them to step aside for a new kitchen.

[Crazy Diamond]

I know it won't be much consolation, but the set-aside is likely to be granted whether you attend or not (over-riding objective being that both sides should get given a chance to put their case to the court).

 

Bear in mind that you can send a submission to explain why you don't think it should be granted, but a) the judge is unlikely to pay attention as per above, b) according to CPR you should have sent any relevant documentation at least 7 days before the hearing so the judge doesn't legally have to take it into account.

 

No harm in registering your objections anyway, just don't put too much hope in succeeding in blocking this one, and concentrate on winning the next stage instead.

[Number6]

New heating boiler, not kitchen. My existing boiler is broken and needs to be replaced urgently as there is a disabled person and three children in the house. Cancelling is not an option and there is no-one available that I can call on to house-sit, neighbours and friends all out at work during the day and no available relatives. Wouldn't be appropriate anyway as I need to be on hand to supervise on certain technical matters.

 

It would have been less of an issue if I'd received reasonable notice instead of two working days. But as things stand I cannot attend that morning and the court tells me there's no time to consider an application to re-arrange so what the heck am I supposed to do?

 

Yes, we continued to converse on FB, primarily because the defendant kept sending taunting messages claiming that she'd moved house amongst other lies.

[Number6]

Bear in mind that you can send a submission to explain why you don't think it should be granted, but a) the judge is unlikely to pay attention as per above, b) according to CPR you should have sent any relevant documentation at least 7 days before the hearing so the judge doesn't legally have to take it into account.

 

I understand about the likely granting of set aside and in truth there's no real problem in delaying the case from my point of view.

 

However, I didn't even receive 7 day's notice of the hearing date so how on earth could I have sent anything in before 7 days? I only got two working day's notice.

[Crazy Diamond]

I understand about the likely granting of set aside and in truth there's no real problem in delaying the case from my point of view.

 

However, I didn't even receive 7 day's notice of the hearing date so how on earth could I have sent anything in before 7 days? I only got two working day's notice.

 

 

I'm confused, you say higher up: "set aside hearing is 12th December; I received notification of the hearing at 3pm on Friday 7th November", or did you mean December? If yes, you could always register your unhappiness, but I can't see it will do you much good nor change the outcome. If it were me, I'd bite the bullet and just accept that courts work in mysterious ways and that us mere mortals have little to say about it.

[Number6]

Oh Lord! I meant 7th December, yesterday, that I received notification of the hearing. The hearing is Wednesday 12th December.

 

You're confused? I must be seriously confused, sorry.

 

Anyway, I've decided that on balance set aside will probably be granted so I'll just send in my written deposition to be put before the judge and await the outcome.

 

If set aside is granted what does that mean in practice? Will the case automatically be relisted or do I have to resubmit all the paperwork from square one as though it's a new case?

[Ganymede]

How exactly did you receive notice of the hearing? By telephone or post?!

 

If the set aside is granted the claim resets to the beginning and you will have to serve the court papers etc on the Defendant yourself. The Defendant will the be able to submit a Defence to your claim which will eventually go to a trial to resolve.

[Number6]

It was by post, dated 3rd December, received by me on 7th December.

 

So, just to clarify. If set aside is granted then effectively the case is dismissed and I have to re-issue everything from the start, as per a brand new claim? And I have to pay all the court fees again? That seems unfair.

 

And then what's to stop her saying that she hasn't received it all over again?

[Ganymede]

No you don't pay the Court fee again.

 

You will need to serve again, that would be the whole point of the set aside. Send it recorded delivery or something so she can't claim not to have received it.

[Number6]

The claim was originally done online so I don't have any original paperwork. How do I send it if I don't have it? Will the court give me suitable documentation?

[Ganymede]

You will need to get copies from the Court of the original docs.

[Number6]

OK, thanks.