Small Claims Court Hearing- advice needed

[Tootles1971]

Hi,

 

We have been right through the Small Claims process due to a badly built fence, all the way to bailiff leaving a letter, and now the defendant has applied to have the judgement set aside. We don't have long to respond as the court date is a week on monday (at our request due to some other personal circumstances). We are really unsure what evidence we need to supply at this stage and struggling to find helpful advice.

 

This is what he's put on his form:

section 3: What order are you asking the court to make and why?

To set aside a judgement against my company.

The work done for (my name) was according to his specifications. He expressed satisfaction at the time.

The damage was caused by weather conditions (torrential rain) six months later.

 

He hasn't ticked any boxes asking what information he will be relying on, but in the next box it says:

See box 3. In addition to the torrential rain the entire country suffered damage due to exceptionally high winds as recorded at the met office.

 

As far as I can see, he can ask for set aside if he doesn't owe the money. My question is, what do we need to submit to the court? All the evidence we have already submitted as part of our application, or a statement saying that the damage wasn't due to the weather (we have an independent report on the poor construction of the fence. )

 

Thanks

 

Confused little Tootles!

[SabreSheep]

Seems like he is trying to use the set aside as an appeal.

 

The More wiser people will advise you as to the process

[BankFodder]

Did he defend the original action?

 

Have you had any expert reports done on the work and the sate of the shed now?

 

How long ago was the action?

 

 

In order to succeed in a setaside application he must normally show that he didn't receive the court papers and

if his application was granted, that he has a good chance of success at trial.

 

He doesn't seem to have pleaded the first ground

 

His second ground is spurious.

 

Has he served you with a draft defence?

 

Can see your claim form and any defence

[Tootles1971]

Hello,

He did not defend the original case, we were given a default judgement. The case was raised in Feb this year and the default judgement was made on the 31st March. We know he did receive the papers because he tried to enter a defence in early April, a few days too late!

We had an independent report from a local builder in January of this year whilst we were gathering our evidence in preparation for the claim.

The only papers we have received from the court is a copy of his N244 form with no draft evidence or any attachments only the statements listed above.

[BankFodder]

Then I think that you need to supply a reply to the setaside. Send a copy to him and a copy to the court.

His chances of success will be quite high.

Have you seen the defence which he tried to file?

 

Make sure you put the name of the case, clam number and the name of the court.

Reply to setaside application

 

We object to the defendant's application on the following grounds

1. The defendant was properly served with the claim documents
   
2. The defendant's application does not make any challenge to this
   
3. The defendant does not claim that he has a reasonable chance of success if he is permitted to go to trial
   
4. The defendant has not filed or served any draft defence
   
5. The defendant's application does does not disclose any valid defence.
   
6. The work carried out by the defendant was subject to the Supply of Goods and Services Act - particularly that the work should be conducted to a satisfactory standard. The fence only lasted for 6 months and failed to remain standing after a high wind - even though neighbouring fences - much older did remain standing in the same wind conditions (XXXXIs this true???XXXX)
   
7. It was an implied term of the contract that the fence be fit for its purpose and remain so for a reasonable period of time.
   
8. We have provided an expert report whcih supports our position
   
9. In the event that the court allows the defendant's application to setaside, it is respectfully requested the the court orders that all costs reasonably incurred so far by the claimant, other than the claim fee and the cost of the expert evidence, be borne by the defendant as the claimant has litigated reasonably in all respects so far and any costs thrown away will have been caused by the defendants tardiness in dealing with the issue.
   
10. We would also ask that in the event that the defendant's application is granted, that he be ordered to pay the sum claimed into court as a condition of being allowed to defend. The claimant has already found it necessary to instruct bailiffs to enforce the judgment and we believe that it is reasonable to require this payment to be lodged.
    

Send a copy to the court immediately and to the other side - and take three copies to the hearing - one for the court, one for him and one for you.

[Tootles1971]

Hi,

Thanks very much for the info and advice. Procedurally are we obliged to respond in writing to the set aside request? We have looked on line and cant really find what a claimant has to do, plenty of resources to assist the defendant. The lady we spoke to at the court office said we could reply in writing or attend the hearing or both, however she didn't sound too convincing. if we respond in writing we then show our hand to the defendant before the hearing.

[BankFodder]

You don't have to but it is best to do both.

Don't worry about showing your hand. If you have a good case then you'll win. Don't get cloak and dagger about it. Just be straightdealing.

Frankly you will probably lose but if you file my suggested statement then you stand the best chance of coming out with a helpful result.

[Tootles1971]

His late defence:-

1 The defendant denies that he is indebted to the claimants in the sum alleged.

2. The defendant supplied a fence which was properly constructed and of good q1uality.

3.As a result of excessive weather conditions the fence may now have been damaged but such weather conditions are beyond the control of the defendant.74 Suffice it to say that the fence constructed was constructed in according with accepted practice. The post were concreted into the ground where appropriate and the fence, as photographs will show, is, save for weather damage, of excellent quality.

5. The defendant therefore denies any liability to the claimants.

 

That was it, no attachments just the above statements on the form.

[BankFodder]

There is no more to advise

This is a setaside application, not the trial.

You will need a second expert and also a report on other people's fences in the area to win

[genie101]

The rules the Judge will have to apply are set out here. Have a read in advance of the hearing.

 

He will need to explain why he didn't file his defence in time. If he delayed making the application it could be tough for him as delay can be difficult to overcome, as set out here.

 

In balance though, if he can show he has a reasonable defence to the claim, the judgment will probably be set aside and the claim will proceed to a trial at a later date.

[Tootles1971]

Hi again Bankfodder

 

Please could you just clarify this point for me?

 

In the event that the court allows the defendant's application to setaside, it is respectfully requested the the court orders that all costs reasonably incurred so far by the claimant, other than the claim fee and the cost of the expert evidence, be borne by the defendant as the claimant has litigated reasonably in all respects so far and any costs thrown away will have been caused by the defendants tardiness in dealing with the issue.

 

Why can we not claim all the costs incurred, rather than excluding the claim fee and cost of expert evidence?

 

Thanks

 

Tootles

[SabreSheep]

Prob because a set aside will mean u restart everything after the claim fee so u would not need to pay it again

[Tootles1971]

OK so it's referring to subsequent costs from now on?

[SabreSheep]

I think so. Bank or others will confirm either way

[BankFodder]

I should have added para 11

11. Other costs to follow the event

[Tootles1971]

OK. I can add that in.

So can you just clarify point 9? Can we not ask him to cover ALL the costs up to this point?

[Ganymede]

OK. I can add that in.

So can you just clarify point 9? Can we not ask him to cover ALL the costs up to this point?

 

No. Just your costs of dealing with the Defendant's application.

 

The costs of issuing the claim and pre-issue costs etc cannot be claimed until the final hearing.

[Tootles1971]

Quick update. We had the hearing. The judgment has been set aside because we claimed against the person, and not the limited company even though he is the sole director. Aaaaagggghhhhh! So now we will have to go to a hearing. Stuffed up on a technicality. Why can't they make things more explicit in the process? Thought the small claims track was supposed to be user friendly. Hey ho. We live and learn.

 

Sad little Tootles

[Tootles1971]

Hello again,

 

Following the judgment being set aside, we are now preparing for the hearing. We've finally received some defence from the defendant, which is full of inconsistencies, incorrect dates and downright lies. It contradicts several items of correspondence from him which we submitted with our original claim too.

 

We haven't had the directions questionnaire through yet, but as we only have 14 days to complete it when we do, thought I'd ask for a few pointers so that I'm ready to go straight away.

 

The basic jist of the claim is that we had a fence built this time last year, which was never actually completed, and we were expecting him to return in september to apply a second coat of treatment, remove some tree stumps, and put on some decorative balls. It got to the start of December, and the fence was leaning quite badly after a storm, but all of the fence posts were able to be moved (about 30 cm!) So quite obviously had not been concreted in adequately. He replied to our perfectly polite email saying he could not be help accountable for the weather, "....and as for the stumps!" which we took to be clear that he had no interest in coming to look at the fence or finish the work. There is a small amount of the quoted amount outstanding to cover the three things that needed to be finished, but we had paid him the £1500. We then wrote to him, again very politely, requesting that he finish the job we had contracted him to do and either repair or replace the fence. We'd had someone to look at the fence who basically said it needed to be scrapped and rebuilt.

 

No response by the end of January, so we emailed again, offering mediation, but again received no response, so started off the small claim process.

 

He failed to submit a defence, so we went to the next stage of the process, then about a week later we received a very short defence statement, which was sent back to him by the court. blah de blah until we got to ccj, and bailiff, at which point he applied for set aside, and unfortunately due to our naiivety, it has got set aside and will now go to hearing.

 

Last week, my hubby had a major heart op, so I will have to carry this on alone, which fills me with dread.

 

What sorts of things do I need to demonstrate to the court to prove he's not done what he should have done, and that he should repay us? Can I take a friend with me? Am I allowed to submit statements from our neighbours that the storm caused them no structural damage?

 

Thanks

 

Tootles

[SabreSheep]

http://www.consumeractiongroup.co.uk/forum/showthread.php?426542-Small-Claims-Court-Defendant-application-to-set-aside-judgment&p=4560391#post4560391

 

U may want to keep to the same thread so people can see the whole story and be better prepared to help you

[rebel11]

Threads merged.

[steampowered]

Who is the Claimant mentioned on your claim form? If it is your husband, you will need to think about how you deal with this. Unless you are legally qualified the court rules only allow you to represent someone else in small claims track if the person you are representing is physically present at court.

 

You can certainly take a friend with you to the hearing for moral support (however they should not speak).

 

I'm not sure statements from your neighbours that the storm caused them no structural damage are worthwhile to be honest as their circumstances will be very different. I think you would get more value from photographs. You could always think about requesting the appointment of a surveyor as an independent expert to examine the damage and prepare a report for the court, but to be honest it might not be worth the expense if the case is only worth 1500.

[BankFodder]

I think it is all grist to the mill.

Get the statements

[Tootles1971]

Thankfully we are joint claimants so I can go ahead alone but not looking forward to that!

 

We have had an independent report completed. We offered him mediation in January but he just ignored us completely until April when the late defence was submitted. If we say no to mediation now would that go against us? If we can't agree something in mediation what happens next?

[Tootles1971]

OK so he's failed to file a defence as ordered by the judge at the set aside hearing. What happens now? Will it go back to default judgement? In other news he's also fraudulently claiming to be part of a safer contractor scheme