Jump to content


Judgment set aside hearing..


style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 2716 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Recommended Posts

Greetings..

Hi,

I am new to this forum .. ITS REALLY A GREAT SITE.

 

I would like to get some advice from your great service for my claim case .

 

I explain briefly below;

 

I am the Claimant and a judgment was given DEFAULT in favour of me in a county court for my unpaid wages as Defendant did not come to the HEARING.

 

As defendant did not pay me , I was about to make an application to the court for the service of Bailiff , then Court Notice arrived with the copies of judgment set aside application and a witness statement of defendant , saying as follows;

 

'' TAKE NOTICE that the application to set aside judgement Hearing will take place on 1st November 2016. 30 Minutes has been allowed for the Hearing ''

 

please kindly help me to answer the following;

 

1. Should I take my eye witness along with me to this Hearing to prove my case which I hope

will help not to set judgment aside ?

2. Can I send my witness statement with my REPLY to the court for the defendantst false

details?

3. Actually what will happen at this Hearing and what will the Judge ask me ?

4. What is the consent order ? I coundnt understand it fully .please give some details..

5. How to write to Judge to make an Order to the defendant to bring some

documents for the HEARING , I many times had asked for from defendant which he

did not serve me yet?

 

hope you will find some time to answer me kindly.

Link to post
Share on other sites

Hang on a sec ... .... nope, my psychic powers fail me.......

So, to answer some of your questions, you are going to have to give the details behind those questions!.

 

Numbered as per your questions, but replying in a different order:

4) You ask "What is the consent order", but you give no details of the consent order being sought, which makes it difficult to reply.

I can answer "what is A consent order" : it is an order of the court that is made after both parties agree a resolution that means that particular issue need not go to trial, but to answer "what is THE consent order" - you'll have to give details of the draft consent order being proposed!.

 

1) As for "Should I take my eye witness along with me to this Hearing to prove my case which I hope will help not to set judgment aside" : it depends. It depends on what grounds the defendant is seeking to have judgement set aside. If they are (for example) claiming not to have received the claim form, and not defended because of that, your witness will be irrelevant (unless they can say the defendant DID receive the claim form!). The hearing for the set aside need not be a "mini-trial", it is a hearing to determine if the case gets re-opened and re-heard, not the resulting trial itself. If the defendant is going for a set aside on grounds that you can absolutely show have no reasonable prospect of success, that a statement from that witness might help, then yes, they may be of use, BUT again, since you havent given the details - how can people replying here know?.

 

2) "Can I send my witness statement with my REPLY to the court for the defendantst false details" : yes, you can oppose the application for set aside, giving your reply, supported by a witness statement ..... again, what you should say will depend on what the defendant has put in their application and their witness statement........

 

5) "How to write to Judge to make an Order to the defendant to bring some documentsfor the HEARING"

If the set aside isn't granted, do you still need the documents?. You could make an application for disclosure of the documents for if the set aside is granted. The details will be influenced by which 'track' the case is being heard in (small clams, fast-track, or multi-track).

 

3) "Actually what will happen at this Hearing and what will the Judge ask me"

Again, this depends on what grounds the defendant is using to ask for the judgment to be set-aside, and again, if set aside, that doesn't mean that there will be a trial of the issues that day, just that the case gets re-opened, with a hearing on a later date.

 

The answers I have given are necessarily vague, because you haven't given the details that might allow more precise replies.

Can you post up (suitable redacted) your PofC, and any applications / witness statements since.

Link to post
Share on other sites

Thread moved to General Legal Issues..in view of the Judgment.

 

Regards

 

Andy

We could do with some help from you.

PLEASE HELP US TO KEEP THIS SITE RUNNING EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHER

 

Have we helped you ...?         Please Donate button to the Consumer Action Group - The National Consumer Service

If you want advice on your Topic please PM me a link to your thread

Link to post
Share on other sites

The key thing to understand is that this will only be a set aside hearing - i.e. to determine whether the default judgment should be set aside. It is unlikely to be a full hearing of the entire case.

 

If the application to set aside is successful, the defendant will normally be required to serve a defence within a particular period of time. The case would then proceed through the court system as a defended case, ultimately leading to a hearing. If the application is not successful, the judgment will stand and that should be the end of the matter.

 

1. Should I take my eye witness along with me to this Hearing to prove my case which I hope will help not to set judgment aside ? You can take someone along but he is unlikely to be permitted to speak. As I mentioned the hearing will just decide on whether the judgment is set aside and will not go into a full hearing considering issues of evidence.

 

2. Can I send my witness statement with my REPLY to the court for the defendantst false details?This is not necessary. If you do choose to serve a witness statement, it should be very short and confined to why the judgment should be set aside (not a full description of everything to do with the case.

 

3. Actually what will happen at this Hearing and what will the Judge ask me ? The main points the judge will be interested in are (1) whether the application to set aside was made promptly (which is a requirement under the rules, and (2) does the defendant have an arguable defence to your claim.

 

4. What is the consent order ? I coundnt understand it fully .please give some details. A consent order is an agreement between the claimant and defendant, which the court approves.

 

5. How to write to Judge to make an Order to the defendant to bring some documents for the HEARING , I many times had asked for from defendant which he did not serve me yet? As this is only a set aside hearing, the defendant will not be expected to provide full disclosure of his or her documents. If the default judgment is set aside and the case proceeds through the court system as a defended case, disclosure will come after that.

PLEASE HELP US TO KEEP THIS SITE RUNNING

EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

Link to post
Share on other sites

steampowered, BazzaZ, user-online.png

Thank you very much for your replies..

I will brief my case below ;

 

For my unpaid wages I took legal action against the defendant 06 months ago in county court. Defendant received my claim and he sent defence for my claim with DQ to the court.

The claim was allocated for a Small claim track and court notice for HEARING sent to me asking me to serve and file documents to the court and defendant.

 

I did as court ordered but defendant did not serve and file his documents. Then I went to the court with my 02 eye witnessess . But defendant did not come to the Hearing. I told Judge I served all documents to the Defendant but he did not serve me any. So Judge questioned me and examined my all documents including my witness's statements. Thus, Judgment was granted in favour of me.

 

Then court sent me the copy of judgment order which sent to Defendant who then applied for set aside judgment after having received the judgment order. The court sent me copies of defendant application for set aside judgment with his witness statements.

 

The reason has been said in the set aside application is NOT RECEIVED notice for the Hearing as defendant moved to the new place. This is the sole reason he has mentioned to the court. An other things is he has requested this set aside jugment to be dealt without a hearing which the court did not accept.

 

The argument of defendant is I was not a employee but a Volunteer. I gave many evidences to the court to prove my employment with him although I had verbal agreement .

 

I need to write some points here about the statements of defendant sent with set aside judgment application.

 

He has said in his witness statement that He MISPLACED the court letter for Hearing, as he moved to the new shop. But the shop is just adjoining one.

 

But his solicitor mentioned in his case statment that Defendant DID NOT RECEIVE COURT LETTER and THEN HE MISPLACED THE LETTER due to moving to new place.

 

I need to give some explanations to the court about these statements I believe are contradictory which proves defendant had received the court letter for hearing so that he mentioned MISPLACED.

 

I am preparing my reply to the defendants statments to be sent to court.

please KINDLY give me some advice on this. Sorry for my simple English.

Link to post
Share on other sites

That doesn't sound like a default judgment to me. A judgment granted at a hearing is just a regular judgment.

 

His excuses don't sound very convincing to me. He knew proceedings were in progress so it was his responsibility to tell the court his new address.

 

Your witness statement should be kept relatively brief. There is no need to repeat what you have already written in the particulars of claim as that will be on the court claim. You should focus on the reasons why the judgment should not be set aside (rather than the reasons why you should win a case if the case was to be re-heard).

 

It sounds like the most convincing reasons are as follows: (1) Excessive delay. A set aside application is supposed to be made promptly, yet the judgment was granted six months ago. (2) He clearly knew about the proceedings because he filed a defence. It was his responsibility to inform you and inform the court if he moved premises. He can't move premises in the middle of court proceedings and not tell anyone his new address, then act surprised when he doesn't receive correspondence. (3) His new shop adjoins the previous one so he should have received notice of the court hearing anyway.

PLEASE HELP US TO KEEP THIS SITE RUNNING

EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

 

Link to post
Share on other sites

Thank you for your kind reply..

Can you please comment on the following statements ;

''''Defendant has said in his witness statement that He MISPLACED the court letter for Hearing, as he moved to the new shop. But the shop is just adjoining one.'''

BUT,

''' his solicitor mentioned in his case statment that Defendant DID NOT RECEIVE COURT LETTER and HE MAY HAVE BEEN MISPLACED THE LETTER due to moving to new place''.( adjoining shop).

 

My point ; The term MISPLACED clearly proves that the defendant received court letter .. Didnt he ? If he did not receive the letter from court , as his solicitor mentioned, then How could a letter be misplaced if that was not received ? make any sense ? I THINK DEFENDANT INTENTION DECEIVING .

 

Because these are the points I am going to point out to the Judge at the Hearing and if I am right I can convince Judge not to set aside.

 

please explain me kindly and advise if I am wrong..

Link to post
Share on other sites

I think that you are following a red herring here by dealing with the issue of nonreceipt of the papers.

 

You can certainly point out the contradiction to the judge but the most important issue is whether he will succeed if he is permitted to file a defence.

 

You say that his version is that you are a volunteer – I imagine this means an unemployed volunteer.

 

You say that you have evidence that you are employed in some way. This is the part of the set-aside application which you need to deal with. You need to put together proper evidence that you are working there under some kind of contract – whether verbal or written that you will be paid for what you do. If you can do that, then there is a great likelihood that his set-aside application will fail.

 

You really aren't giving us very much information and you are wasting time by making us ask you questions which really should be entirely obvious.

 

Please will you post up a copy of his set-aside application so we can see exactly the grounds for the application.

 

Please will you post up of your claim so we can see exactly what you have claimed.

 

Please will you explain to us why he says – or he believes – that you are a volunteer.

 

Please will you explain to us exactly the circumstances of the work that you were doing including how long it has gone on, the kind of business, the hours you have put in et cetera.

 

Please will you explain to us exactly what you believe you have in the way of evidence to support your case. If you give us this information then we can help you. As has been said in an earlier post, we are not psychic.

Link to post
Share on other sites

@BankFodder

 

Thank you very much for your advice.

I have many more pages of statments which I can not post here. Bu I will try to post the very important points with regard to this claim. Can you please give me some advice on the below matter;

 

Defendant runs his small business from his kiosk within a shop. He wrote to the court that court officer had said , the hearing notice was posted in 5 May 2016 to his old address. He has sent to the court his Licence to occupy agreement date starts 10 April 2016 so that he moved to the new address on 10 april 206. Therefore he said he did not receive the hearing notice which was sent to his old address on 5 May 2016 because he was not there on this date.

 

But Company House shows he has changed his trading registered address to the new addess on 20 June 2016. if so he must have received the hearing notice.

 

What I want to know is can defendant runs his business from the new address without changing his trading address on the same day as in the licence to occupy agreement ?

 

Can he changes his trading address after one and half months of getting the licence to occupy agreement?

( old address chnged to adjoining address , ie ( No - 98 TO No - 100 )

 

If I am right I can point out these too.

sorry for my simple English.

please some time to reply ..

Link to post
Share on other sites

Once again, you are chasing the issue of nonreceipt of the claim documents. Believe me it is all scarcely relevant and the matter of whether or not he changes address in time is just a technicality.

 

You really haven't dealt with the important questions I posted in my message above.

 

Until you deal with those questions, I don't think there is much we can do to help you.

Link to post
Share on other sites

with bankfodder'

on that ground, the def wld need to show on balance that they did not get the claim. you wld then need to counter their balance that they did, including as per cpr rules re deemed service.

and, also that any other possible grounds for set aside are rebutted. is their only ground for set aside re non receipt?

for the guys to post on, you need to post up the info bank requested. things cant be considered in isolation.

Link to post
Share on other sites

What you don't appear to be grasping is that just because you have judgment because the defendant didn't respond for whatever reason doesn't automatically mean that he won't be allowed a set-aside based purely on the fact of a non received letter.

 

Even if you can prove he did receive the court letter, the court have discretion to allow the set-aside and prefer matters to be resolved based on the merits of the case - hence the info requested in post #9.

 

By all means bring up the matter of the letter but don't get hung up on semantics, your main priority should be to prepare an argument to demonstrate to the court that his defence has no triable issues worthy of a full hearing.

Link to post
Share on other sites

  • 2 weeks later...

Dears ,

Obeying some of your great advice , I applied to the court to order to defenant for the disclosure of cctv footage of some of the days I was working with defendant. Court has ordered to the defendant to produce a disc of recorded cctv footages for the days , i.e , between 10 september 2015 and 25 september 2015 , I have requested for.

 

The Defendant has been given 05 working days to produce this footages.

If I get these footages , this will clearly show disputes and arguments he had with me on the day I was stopped from working.

Its an information to all who replied. I wll post other details of my claim in days..

 

But I am sad becuase sometimes defendant will delete all these footages and tell the court all have been accidently deleted.

Link to post
Share on other sites

  • Recently Browsing   0 Caggers

    • No registered users viewing this page.

  • Have we helped you ...?


×
×
  • Create New...