Possible 2nd set aside

[arnieb]

Hi All

 

New poster here so please bear with me

 

I am in dispute with some painters about the quality of work that they did in our house.

 

So after a few weeks of emailing and writing to them to no effect, I submitted a MCOL form in December 2014.

 

In January 2015 I heard from the Nortampton Courts that the formal claims documents had been returned to them as undelivered (even though my particulars of claim reached the defendants). I then applied for a default judgement as I was certain I had the right address.

 

the defendants then applied to have this set aside. At a hearing in February 2015 they won this on the basis of not having received the post. the judge commented that I had done nothing wrong and I had used the most logical address I could. Even so he said that "natural justice" was an stronger principle. He then discussed with the defendants the exact best address to use for future correspondence.

 

So on 24 Feb we got the set aside judgment which stated they had to file a valid defence within 14 days of it being served. If not we could apply for another default judgement.

 

So yesterday (16 March 2015) I phoned the courts to find out that the time limit for them to respond was 12 March 2015 and guess what - they had not done so. I've emailed the courts asking for a default judgement. the lady at the courts said that the next hearing for default judgments was today and mine will be in the process for this.

 

The lady said I would get this automatically but she then said as it was a default judgement they could apply for a 2nd set aside hearing!!!

 

I was a little shocked by this as surely they have had their last chance

 

Can they and if so what is the chance of winning. I've worked out that 1st set aside hearings nearly always go the way of the defendants but there is little on t'web about 2nd set asides ( I assume they are much rarer).

 

Many thanks

 

Arnie B

[BankFodder]

Most unlikely that it would be granted

[arnieb]

Hi

 

So I got a 2nd default judgement granted on 20 March.

 

Today though I received a letter from the courts telling me that the defendants had filed an acknowledgement of service on 17 March, saying they intend to contest the claim. I am perplexed to put it mildly for 2 reasons.

 

1) The judge's orginal set aside order (to the 1st default judgment) stated that "within 14 days of service of the claim form and response pack the defendants shall file and serve a Defence to the Claim compliant with CPR and containing a statement of Truth." I think this is a bit more than just an acknowledge of service.

2) I've checked twice with the courts and both times they said the claim form and response pack were sent out on 24 Feb. These were deemed to be served on 26 Feb and the 14 day period expired at the end of 12 March.

 

So from what I can tell they were 5 days late and they didn't do what the court asked of them.

 

So presuming all this is correct, ( I will check again tomorrow with the courts), is the default judgment valid? Will they have to apply for a 2nd set aside to get it overturned? Is there a chance that they can win? I am fairly certain they have not been ill as they have been updating their website and in the last 2 weeks they have finally opened some new premises.

 

Many thanks in advance

 

Arnieb

[legalistic]

Even if the default judgment is not set aside they could appeal on the merits i.e. the facts, law etc of the case.

[arnieb]

Hi

 

So I just checked with the County Court and the defendants have applied for a 2nd set aside (As I expected) - the judge though has refused this application on 2 bases

 

1) they have not complied with the judge's directions following the 1st set aside hearing (which was to file a full defence within 14 days of receiving the papers)

2) they have offered no new reasons why they did not comply with the judge's directions.

 

I've been told that they can appeal but this would now transfer to the high court and so would incur them many £000's in legal costs. the court also said I could now apply for enforcement measures if the debt had not been settled.

 

the moral of the story seems to me that if a judge asks you to do something you had jolly well better do it!