Help with opposing setting aside judgement : Dilema

[jsmith07611]

Good evening and thank you for this amazing forum

 

It is a case for 5k where i am not sure whether to try and point out something or not in the hearing for setting aside judgement

 

I am the claimant.

the defendant replied their defence to an incorrect email address and therefore i was awarded default judgment as the court did not recieve their defence in time.

the defendant sent an email to one of the ccbaq email addresses which was not the correct email address for filing a defence.

in the atutomatic reply it said not to duplicate the email as it wastes court time, so they did not send through their defence through any other avenues.

 

now the other side wish to set aside judgment.

there is a hearing soon to set aside judgment

 

their defence is totally wrong as they have gotten totally muddled up.

in the past I had had a seperate issue with the defendant which was resolved and their current defence basically says that i had resolved the current case and therefore cannot claim again. so the defendant has muddled up the two cases as it is clear as it is a seperate case which was resolved.

 

my question / dilema is

 

should i try (option 1)

 

stop the defendant setting default judgment aside and show why the defence is totally flawed.

if i win the hearing to set aside judgement on the grounds that the defendant has no prospect for success in their defence, then that would be great...

but i will probably loose as they have got quite a good excuse that they sent the defence to a mistaken email address.

 

they will claim that there was a valid reason in missing the deadline for submitting a defence.

in this scenario where they will win the hearing for setting aside judgement,

they will fix their defence for the proper hearing later on.

as they will realise that in their defence they had muddled up the two issues.

 

or my second option (option 2)

 

should i allow them to set aside judgement without disclosing why their defence makes no sense and save it for the final hearing where i will prove that their defence is flawed.

but i may be accused of obstruction of justice by not pointing out that the defendant has made a simple mistake of muddling up the two issues.

 

I am very grateful in advance for replies

 

kind regards

[dx100uk]

muppets then why didn't they use MCOL?

did they ack [aos] the claim by mcol?

if they did then i'd say let them try and hang themselves..

unless they claim mcol played up and that will only be at a w/end typically and they should be filing at a w/end but the previous Friday.

 

it might be better to run over these issues their defence has.

[jsmith07611]

hi the defendant went through his solicitors. the solicitors did not reply via the mcol (i have no idea why not)

they wrote in their statement that they sent their aos via email to [email protected] instead of [email protected]

(actually both these email addresses are wrong as the correct email address is [email protected] or just replying via mcol

 

p.s. sorry what did you mean by run over it

[dx100uk]

muppets

you indicate their defence is faulty?

 

dx

[AndyOrch]

Option 2 would be the correct procedure.....but you should submit a statement in opposition as to why the the judgment should not be set a side...on the basis of the contents of their defence as priority....not responding correctly or on time would be second.

 

Have you been given a hearing date for the set a side application ?

 

 

Andy

[jsmith07611]

muppets

you indicate their defence is faulty?

 

dx

 

their defence is faulty. there has been two issues with the defendant. issue 1 and issue2. issue 2 was resolved and i accepted the offer. the defendant has mixed up the two issues and said that i have accepted their offer previously. they quoted my acceptance of issue 2. it is an obvious error on their part.

 

my question / dilema is should i bring this up at the hearing to set aside judgement or should i wait until the real hearing. please see orignial post for plusses and minuses of both options

 

thank you for your help

[jsmith07611]

Option 2 would be the correct procedure.....but you should submit a statement in opposition as to why the the judgment should not be set a side...on the basis of the contents of their defence as priority....not responding correctly or on time would be second.

 

Have you been given a hearing date for the set a side application ?

 

 

Andy

 

Thank you very much for replying and your help.

I just didn't quite understand what you meant in your reply below.

 

From what i understood that i should put in the opposition based on their defence.

 

i should write to the judge that their defence is faulty already at the hearing to set aside judgement which was option 1.

option 2 was to not mention anything about their faulty defence, allow them to set aside judgement and then explain why their defence is faulty in the later main court hearing hearing.

 

i am a little muddled up.

I appreciate your help

 

thank you

 

p.s. hearing to set aside judgment feb 20

Edited February 3, 2019 by dx100uk
spacing

[AndyOrch]

Submit a witness statement in response to their application opposing the set a side and state your reasons why...this must be filed and served not less than 7 days Feb 20th.

 

Be aware that if they were only slightly late...and with genuine reason...it most probably will be allowed...and the claim proceeds.

[jsmith07611]

ok thank you so should i write in the witness statement the reasons why i disagree to their defence or should i wait for the proper trial to do that?

[AndyOrch]

No...if you do wish to oppose it.....you only refer to the reasons why the set a side should not be allowed...IE a response to the following...

 

" I am the claimant.

 

the defendant replied their defence to an incorrect email address and therefore i was awarded default judgment as the court did not recieve their defence in time.

the defendant sent an email to one of the ccbaq email addresses which was not the correct email address for filing a defence.

in the atutomatic reply it said not to duplicate the email as it wastes court time, so they did not send through their defence through any other avenues."