Hijacking posts removed from "working" thread

[S. James]

I think you have been very lucky to have received your deposit in the first instance. Second, you may have been too hasty in filing a claim without pre action communication warning of legal proceedings, interest and costs, and allowing time for a reply. It may have been unreasonable to expect a refund in the short space of time that was allowed.

 

If you want to proceed for the costs alone then you need to satisfy the court that they were reasonably incurred and that all proper steps were taken to avoid litigation.

 

All the points you raise about meeting them in court are of little or no relevance. Bear in mind that if they succeed on these points with their application to set aside the judgment then they are properly entitled to their costs which may exceed the amount you claim is properly incurred.

[Bookworm]

25th August 2006,

I have contacted the company several times

It has been 12 days since the money went out of my bank account.

 

 

then

 

26th October 2006

Entered judgement via Moneyclaim for the court fee and interest.

 

Even working backwards, and without the OP stating precise dates, it is reasonable to infer that the 28 days deemed acceptable by CPR were complied with.

 

Bear in mind that if they succeed on these points with their application to set aside the judgment then they are properly entitled to their costs which may exceed the amount you claim is properly incurred

 

Not at all.

If the defendant succeed in getting the judgment set-aside (highly likely, because of the over-riding objective), it will go to a hearing where the judge will decide whether OP is entitled to his fee and interest. That's all. As for the defendant being "entitled to their costs", I strongly recommend a thorough read of "Small Claims Procedure" by Judge Patricia Pearl.

[S. James]

Perhaps you can elaborate on your reference to the overiding objective and how it ill operate to to prevent a set aside. I'm familiar with the costs rules without needing to resort to the title you recomend. An impotant factor which appears to have been overlooked, as with many novices, the calim has not been allocated to the small claims track and accordingly, applications in the case are not limited to the costs rules of the small claims. You may want to try reading a different title.

[Bookworm]

Perhaps you can elaborate on your reference to the overiding objective and how it ill operate to to prevent a set aside.

 

You may want to try reading a different title.

 

And you may want to read my post properly. What I said was:

 

If the defendant succeed in getting the judgment set-aside (highly likely, because of the over-riding objective),

 

[S. James]

I'll rephrase...re-read inserting the letters u and before the word likely. Any comments on the other issues raised???

[Bookworm]

I'll rephrase...re-read inserting the letters u and before the word likely.

 

Nope, I still don't understand what you mean. Please clarify.

 

Any comments on the other issues raised???

 

What issues?

 

You seem to assume that the set-aside won't be dealt with in County Court, why on earth not? Every single set-aside hearing we've seen in here, and there's been a few, were dealt with in Small claims. And some of them were for much larger amounts. And most of them were issued at MCOL level.

 

Always willing to be enlightened, however, so if you know different, please state your authority.

[S. James]

I shall say no more on the point. There is clearly a lack of understanding on key issues. Hearings to determine such applications are not heard, have never been heard in the small claims as they are not applications which are allocated to a track. If thats what you are getting from the book you refer to then it is wrong or it is being misunderstood. Please feel free to provide a legal basis for your assertion....

[Bookworm]

Right, the answer I expected.

 

S. James, or SJ as was, you have hijacked OP's thread, but yet again, when challenged to come up with the legal basis for your assertions, you decline to do so.

 

I have removed our little conversation from OP's own thread, as I feel that a new member could easily get confused or put-off by the ongoing argument.

[S. James]

It was I who challenged you to to provide a legal basis for your comments, which you failed to do. Obviously it it was better for you to hide the limits of your ability by taking this step. It seems clear that you have an issue with being asked to provide a basis for your repsonses. It seems to be the general standard on this site (with the exception of a few) that 'its right because I say its right' or because it was in some book someone read. If you're the standard on this site....I have some sympathy for forum users.

[Bookworm]

Yes, dear.

[tim2718281]

Bear in mind that if they succeed on these points with their application to set aside the judgment then they are properly entitled to their costs which may exceed the amount you claim is properly incurred.

 

That's interesting.

 

So, if I issue court proceedings, and the defendant does not defend, I can obtain a judgement in my favour.

 

But if the defendant then applies to have the judgement set aside, you're saying that is they are successful they are entitled to costs.

 

What costs are they entitled to, and who are they entitled to get them from?

 

(Presumably it can't be me, as their application to set aside a judgement does not include a claim against me, and so I have no opportunity to defend myself against the claim.)

 

Tim

[JonCris]

If you are the claimant & become aware at any time that the defendant did not receive your 'Particulars of Claim' (which appears to be what is claimed by the company) YOU should seek a set aside.

 

Although there is a risk because of none allocation its highly unlikely that in the event of a set aside the court would award costs against the 'litigant in person' claimant, unless it was decided that the claimant had acted with extreme prejudice.

 

Under the circumstances being discussed here I wouldn't bother to try & fight the setting aside. In fact I would let the court (& the applicant) know I would not object to it. The court will then set a date for hearing & its highly possible that the claimant will obtain the costs & % asked for.

 

If it has been over 1 month since judgment I suspect this company are fighting this because they don't want even a settled CCJ resting on their credit file & for no other reason. Also if they admit to the court costs & % it sort of gives the game away doesn't it!

[JonCris]

That's interesting.

 

So, if I issue court proceedings, and the defendant does not defend, I can obtain a judgement in my favour.

 

But if the defendant then applies to have the judgement set aside, you're saying that is they are successful they are entitled to costs.

 

What costs are they entitled to, and who are they entitled to get them from?

 

(Presumably it can't be me, as their application to set aside a judgement does not include a claim against me, and so I have no opportunity to defend myself against the claim.)

 

Tim

 

You would be at risk if you fought the setting aside causing the applicant to jump through more hoops than neccessary.

[Bookworm]

Under the circumstances being discussed here I wouldn't bother to try & fight the setting aside.

 

Funny you should say that, Joncris, because this is a discussion I have had many a time with Bankfodder. My view, (this is relating to the bank ones, btw), is that since the judge will in all likelihood grant the set-aside, is there any point in opposing it if it means that claimant will then have to wait even longer for his money?

BF argues that in the meantime, the other side will have to prepare for the hearing(s), which ties up more of their resources, cost them more and keeps them on their toes, and we should never give them an easy ride.

I suppose it depends whether one is more interested in gettign one's money back as soon as possible, or to be a pain in the bank's butt for as long as possible...

[JonCris]

I agree with BF any grief we can cause the banks is welcome.

 

However we don't want to cut off our nose to spite our face. Its my opinion that by fighting a set aside, which will almost certainly be granted, we are delaying matters but also we could antagonise the court by what may be seen as our unreasonable conduct.

 

We can keep any ammunition about the defendants deceit used to obtain the set aside & request costs.

[Bookworm]

we could antagonise the court by what may be seen as our unreasonable conduct.

Ah, now you see, this is where I disagree. The over-riding objective works both ways, and I do not believe that any judge in the land would see fighting a set-aside as unreasonable conduct. The hearing is not meant to be merely a formality, thank goodness.

 

I completely agree with you about the delaying part, that was in fact the point of my post. I also agree with making life as difficult to our opponents as we can. It comes down to balance and personal choice, really....

[Bookworm]

And to show that it is worth figthing it all the way:

 

http://www.consumeractiongroup.co.uk/forum/post-337078.html

[JonCris]

BW Yes good result.