Substituting or Adding Parties After Default Judgement

[LordZoot5027]

Under CPR 19.2 (4), can parties be substituted or added after default Judgement? Any case laws would be welcome.

 

Thanks

[honeybee13]

Hello there.

 

Is this query connected with your previous thread please? And are you able to give any background to your question? It would help the guys to advise you.

 

http://www.consumeractiongroup.co.uk/forum/showthread.php?418153-Filing-of-False-Witness-Statement&p=4475635#post4475635

 

HB

[AndyOrch]

Under CPR 19.2 (4), can parties be substituted or added after default Judgement? Any case laws would be welcome.

 

Thanks

 

Afraid not...they have judgment....claim has finished.

 

Regards

 

Andy

[LordZoot5027]

@honeybee13

 

Thanks for responding. Yes it is. The default judgment was obtained 4 months prior against "Persons Unknown". The substitution was done based on the above CPR. I genuinely need some help as I believe it should not have happened.

[LordZoot5027]

@Andy....thanks a lot. This is what I believe too.

[AndyOrch]

But only a defendant can be added not a party...was you a substituted defendant? Did you give your permission.

Court permission is normally required after service...I have never heard of a party being substituted after judgment......it would require a retrial.

[LordZoot5027]

@andy....thanks. Yes, I'm a defendant, but I've been made to understand that even defendants cant be substituted after default judgment because the has ended as you said before. I didn't give my permission. I was opposed to it. How about the default judgment against "Persons Unknown"....is this right? Your help is very much appreciated.

Thanks

[AndyOrch]

Without knowing the full details of the claim LZ my advice is restricted.They obviously cant enforce a default judgment against an unknown person like wise they cant issue a claim.

 

You cant be added after judgment...you have not had chance to defend.

[LordZoot5027]

@Andy...your response has helped so much more than you'll ever know. Thanks so much...well appreciated!

[LordZoot5027]

Hi there

 

A Judge ordered the other side that they are only permitted to serve one "tranche" of evidence. Can someone please explain what this means?

 

Thanks

[steampowered]

Tranche just means 'slice' or 'portion'.It basically means the first portion of evidence would be served now, and presumably the rest would be served later. It is difficult to know exactly what this means in your case without a lot more context.

[LordZoot5027]

@steampowered...thanks. The context is: It was a Permission to Appeal hearing. Permission was given. The Judge initially ordered that no further evidence to be served in relation to the appeal. However, the other side requested for a certain section of their submissions to be responded to. The Judge conceded and then gave permission for this response and allowed for evidence to be served in relation to this response only. He further ordered that the other side may serve one "tranche" of evidence in relation to the response they requested.

 

The other side has however gone above and beyond to procure new and fresh evidence. In the middle of the appeal process, they are now seeking disclosures from google, new investigations etc. I have no doubt that this was a pre-meditated move by them to request for this response and they are now capitalising on this. In essence, the evidence they provided at the judgment was flawed, hence the appeal and subsequent permission.

 

Am I right to assume that, what is being appealed is the evidence put forward at the time of judgment, hence they are now getting a "second bite at the cherry" and this shouldn't be the case? Does it appear that they've taken the context of "tranche" too far?

 

Many thanks

[wonkeydonkey]

I am intrigued...how can you serve a claim on 'parties unknown'?

[LordZoot5027]

@wonkeydonkey.....good question. I too am puzzled. The entire matter seems to be done in a very untoward manner.

[AndyOrch]

Perhaps post up some of the paperwork involved LZ..... the claim form.... the judgment and any applications...until we see some documentation everything is pie in the sky.

[steampowered]

I imagine the judge means the other side can serve evidence only in relation to that specific point, not in relation to the other points.

 

You are generally not supposed to introduce any new evidence on appeal at all. Appeals are only supposed to be used to say that the judge got it wrong the first time round based on the evidence presented to him. If the other side did not present evidence to the judge first time around it is normally tough luck.

 

I am sure the other side will try to use all sorts of stuff. I cannot imagine the judge would be too impressed if you make it clear that the other side did not make this evidence available at first instance and that there was no good reason for this.

[LordZoot5027]

@steampowered....thanks again for your timely response. Believe it or not, the application hearing was today and the Judge granted all their application requests, which included (believe it or not), an extension of time to serve their "further evidence" and adjourning my appeal date! Please note that the google applications etc. is completely separate to the other evidence that they requested an extension of time for. I'm just dumbfounded! I am sure this sounds very bizarre....but it is true!

 

I put forward in my witness statements all the valid points, such as, they could have procured this evidence with reasonable diligence before the judgment. I further stated amongst many other things that this shows that the evidence at judgment was flawed and they shouldn't be allowed to procure this evidence they now seek. The other side manipulated the situation and milked it for all it was worth. I am an LiP, but I have no doubt that this is well and truly wrong!

 

Can you please advise, how I can go about setting this Judge's Order aside? The Judge is an HHJ. Would I have to go back to him to set it aside or will I be referred to a higher Judge? On making the application, may I ask ask for an urgent stay so as to ensure that the previous Order (HHJ's Order) remains unenforceable until the result of my application.

 

To add to this, I quoted a case law which stipulates that a Defendant cannot be substituted post judgment by default. The Judge conceded that he had never heard of this case law. However, he added that if this case law is, as said....then, in essence this would be the end of things. Unbelievably, he stated that I should bring this up at the appeal. I am of the thinking that, in the interest of justice, this should have been dealt with there and then. The other side made the pathetic excuse that they didn't get enough time to research this case law and that it's not applicable anyway. I gave notice of this oral application, the previous day as this hearing was already scheduled. I am desperate to set this aside steampowered.....Please advise.

 

Sorry to bombard you.

 

Many thanks in advance.

[LordZoot5027]

......accidental double post...

[steampowered]

Its difficult to properly advise when I don't have a proper understanding what the case is about.

 

Anyway, do I understand correctly that you had a judgment against you which you are appealing? And you now want to challenge a decision made as part of the appeal process about what evidence the respondent can produce at the appeal hearing? If that is what you want to do, to be honest I would let it go. It is extremely difficult to challenge case management orders. Challenging it is likely to be a waste of energy. I would focus my energy on preparing for the appeal hearing.

 

If you want to be citing case law at the appeal you need to be doing it properly, which means including the case law in your bundle and drawing the judge's attention to the relevant passage in the judgment. Make sure you have a proper read of the CPR rule and Practice Direction on appeals.

 

If the point you are making about whether a Defendant can be substituted on a judgment is fundamental to what your appeal is really about, then I would think the judge is correct to say it should be dealt with at the actual appeal hearing rather than an interim hearing.

[LordZoot5027]

@steampowered.....thanks again. This was a hearing instigated by the Respondents for their applications for disclosure etc. to be heard? The PTA was already done and dusted and directions were already given for the appeal hearing at the PTA. However, the Respondents made all these subsequent applications (4 heard in a day to be exact!). Are the orders originating from this hearing today regarded as case management orders?

 

As I said before, one of their applications was for an extension of time to serve their further evidence. This evidence should have been served at the end of May, however they claimed that they were unable to comply with this as their response necessitated more "investigations" being done and they weren't able to collate all the evidence in time. They applied for an additional 10 days to so. The earliest date for the hearing to hear this application (amongst others) was today. Would you believe that, despite them not having had the permission to extend time (prior to today), they included all this evidence in the bundle. The Judge read the bundle and obviously thought this was all approved evidence. This was pointed out by me, but by then he had given his permission for them to procure further evidence from google etc. In view of the underhanded tactic of the Respondents, the Judge actually thought their application for extension of time was in relation to the google disclosure etc. as opposed to the documents that they were already safely secured and paginated in the bundle.

 

I am so appalled by all the underhanded tactics and feel very strongly that I was taken advantage of and the entire hearing wasn't conducted appropriately in view of all these tactics. Am I still unable to attempt to set this aside? I genuinely respect and appreciate your advice. However, I am just dumbfounded by the blatant underhandedness.

 

Many thanks

[AndyOrch]

Threads merged...LZ please do not start new threads for every different question on the same case.

 

Regards

 

Andy

[steampowered]

LZ this is starting to sound like a first instance case and not actually an appeal. Injunctions/orders against persons unknown are rare but they are possible but I guess there could then be some sort of redetermination/trial if the relevant people become known, which would not techinically be an appeal. To be honest I'm not entirely confident that you are barking up the correct tree with this substitution of parties stuff. But without knowing the context I am only speculating.

 

My general impression is that these orders about evidence sound all very like case management orders and thus very difficult to challenge. The general advice is that you are better off focussing on the main case and are not likely to get anywhere challenging orders about who is able to provide what evidence etc.

[LordZoot5027]

@steampowered.....thanks for our advice. An appellant's notice was filed, Permission to Appeal was given and a one day hearing was scheduled for this (now adjourned). I'm not clear regarding the case management orders though. Anyway, thanks a lot for your timely responses. I appreciate this.

[Ganymede]

So basically you want to set aside the order giving the other party an extension to file certain evidence?

 

Did I understand that right?

[LordZoot5027]

@Ganymede.....thanks for your question. To clarify, I 'm not trying to set aside an order giving the other side an extension to file further evidence...that would be somewhat petty. The real issue is: At the Permission hearing, the Judge made it quite clear that there was to be no further evidence brought into the appeal. At the other side's desperate request, the Judge conceded and gave permission for me to respond to a certain area of their submissions and specifically allowed only for evidence to be presented in respect of this response. Likewise, they were given the permission to address my response within 28 days and provide one tranche of evidence in this respect. Despite the fact that they had requested for me to respond to their submissions, they failed to file their response within the stipulated time and requested for an extension to do so.

 

They then went above and beyond this further evidence which they sought an extension to file AND made three other applications for disclosure etc. It is the order granting these applications in addition to the extension which I would like to set aside. I contend that they've abused the appeal process and now seek to acquire fresh and new evidence. The evidence put forward at the judgment was flawed, hence my successful permission application. My concern is the lengths they will possibly go to, in order to manufacture this "evidence".

 

Interestingly, at the application hearing, the Judge mistakenly thought that the permission to file further evidence was in respect of the applications only. Not realising that the applications were in addition to the bulk of "further evidence" that were late in serving. However, by then he had granted the applications. In essence, I appealed the evidence at the time of judgment, so I believe it is grossly disproportionate giving them a "second bite of the cherry". As previously stated, my concerns is how they'll arrive at this evidence that they hadn't presented before the judgment which I'm appealing.

 

I hope this makes it clearer..