Astral Motor Company Ltd - Mark Warren Forshaw - Default Judgment now set a side application.

[BankFodder]

I have edited and also amended the proposed document so you will have to download this one and discard the earlier one.

 

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Have a look at this and see what you would like to add.

In particular have a look at the way that the reference to the appendix is phrased at paragraph 3.b.

Go through the evidence you have and add it to the statement in the way that I have outlined – and then post it back here.

This was prepared on Microsoft Word. Let me know if you aren't able to do the paragraph numbers et cetera and I'll produce a different copy for you

 

Also, check it out for typos et cetera. I use dictation software – and sometimes it doesn't seem to be able to understand simple English!

 

 

 

[BankFodder]

I've made yet another amendment – this time referring to the unsatisfied judgement which was downloaded here in September.

It is important that this is referred to because this is a basis for asking the judge to order astral to pay money into court if they want to continue. They have a track record of unsatisfied judgements and so it seems prudent to ask the judge to make this order if they want to continue.

You will need to download this new amendment and discard the previous one

 

[Webbo87]

Hi, attached is my reply with added comments and appendix information. Please let me know if you would like it converted into PDF rather a docx file.

 

I have a question regarding the discretionary litigant in person costs, is it necessary to claim this? I don't want to appear to be claiming sums for the sake of it, the amount is not in my interest to claim as I w ould rather focus on the claim for the car and costs.

 

Once this response is complete how would I go about submitting the set-aside?

 

Thanks.

 

[BankFodder]

I have made some substantial additions and also several edits. Please read through it carefully because I haven't been using the Microsoft word review function. I should have done.

Also I've introduced a new page just before the beginning of the appendices and I think it would be good form for you to adopt it and complete it.

You should paginate the entire document.

The document should be paginated in the form – "1 of 10 pages" "2 of 10 pages" – et cetera.

The County Court is a very nice and very helpful but they are inefficient and they lose things and you want to make sure that everybody knows exactly how many pages you are supplying just in case some come away.

Decide if you want to add anything else or take away anything and then post it up here

astral order (1).docx

[BankFodder]

Also above each image on each appendix page, you should put a brief description of what it is:

 

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Picture of dashboard warning light dated XXX date and referred to  at paragraph XX of my Reply.

 

This will allow a judge easily to cross-reference from one part of the document to another

 

[Webbo87]

Hi BankFodder.

 

Updated document attached with Appendix information added, I have also included my and my partners mobile outgoing call history and highlighted the calls to Astral Motors, the dates and times backup the timeline of events.

Those call history Appendix items have not been referred to in the reply, should I add references to these?

 

Can I remove the Discretionary litigant in person costs from the reply, these costs would take my total claim over the £10,000 limit for small court claims. Currently I am claiming £9,875.62.

 

Thanks,

Chris

astral order.docx

[BankFodder]

I haven't looked at what you've uploaded – but yes if you are going to include call records then they have to do be given context which means that they have to be included in the reply and referenced in the index.

You can't simply dump another load of data on the third judge without explanation.

[Webbo87]

Attached is my latest document for review.

 

I have mentioned the call records and have appendix reference in my reply. This highlights communication between myself and the defendant which the defendant failed to mention in his response.

 

I have also added the call records to the appendix index and added details of information regarding the call records and their relevance.

 

Thanks Chris.

 

[BankFodder]

I haven't read it all through. I simply whizzed through it to get a sense of its appearance and it looks very good.

I suggested one additional edit which I have presented in red for you to have a look at on the first page.

If you are happy with that then change its colour to match the rest.

And then it's a question of sending it off to the court.

You haven't heard anything from the court yet other than it is going to be transferred there – but I suggest that you send the court a copy next week on Monday or Tuesday with a covering letter carrying the claim reference number and asking that it be added to the judges file and that it is your reply to the set-aside application.

When you finally get a hearing date, then send another copy. I'm afraid it is entirely possible that these things don't find their way to join the file in time so you will need to be quite rigourous about it to get it to join the file in good time so the judge can read it.

It might also be worth phoning the court at some point to confirm that they have received the document and that it has been added to the file.

At some point you will have to send a copy to the defendant – but I suggest that you leave that as long as possible.

It looks as if there is going to be a face-to-face hearing so you will need to take three copies of this document – and anything else that you want to rely upon.

One copy is for the judge, one for the defendant and one for you.

Follow the link to see the advice that I have given about organising your court bundle <<<<<<

astral order.docx

[AndyOrch]

If I may offer my two peneth before you finalise the above and submit....I can see a lot of work has gone into it but it really isn't the correct response to this type of application.

 

I think the reasoning as to why you object to their application should be beefed up...... the claimant followed process pursuant to CPR 12.1 and 12.3 a....and requested a default judgment after the prescribed time.The defendant failed to acknowledge service or submit a defence.

 

Now makes application to set a side with no reasoning or apology within their statement as to why they failed to respond or any reference to which CPR they wish to rely on in support of their application.Its as if there was no judgment and now they are simply submitting a defence  which is some 5 weeks late. 

 

Application to set a side a default judgment are pursuant to CPR 13 .3 a /b   the defendant has a real prospect of successfully defending the claim; or (b) it appears to the court that there is some other good reason why.

 

Well their proposed defence is fanciful and does not contain a true factual account in response to the particulars plead.

 

As the claimant your response should really only address the defendants application and why you object to said application...not offer a full response to their statement...with exhibits..and you certainly do not require a bundle at this stage.This is a hearing to determine their application to set a side....not hear the claim. You stand by your particulars of claim unless the judge advises he requires fuller particulars.

 

Should the defendant successfully attain a set a side...then the claim proceeds and moved to allocation...at which stage both parties will be directed to submit full particularised statements with evidence (exhibits) in preparation for the hearing...so you will end up duplication everything again...with nothing further to add...and the defendant will have all the details before submitting their formal defence.

 

Just my thoughts 

 

Andy

[BankFodder]

Yes your right – and we certainly have gone much further than would normally be necessary.

It's also the reply has been put together in a way which in fact amount to the arguments in the final hearing.

I think that on the basis of what you say we will amend the reply to include a request at the beginning that this set-aside hearing be treated as the substantive trial of the final issue.

This will bring it all into context. We will also catch the request in a way which makes it clear to the court that the matter is fairly cut and dried and that treating the set-aside hearing as the trial of the issue will bring the whole matter to a close thus reducing costs and inconvenience to all parties as well as the court.

We can then let the judge decide but I think that a suggestion which would bring complete closure to the matter would probably be very acceptable

 

I think it would be reasonable to suggest that the court that the defendant set-aside application effectively amounts to their defence of the claim and that there is nothing else to add to their base

 

I'm going to add as well that as the claimant is a litigant in person – as are all of the people who begin litigation with the help of this forum, they have a certain licence to do things in an unconventional way – and I think that it is reasonable to exploit this licence and if the suggestions aren't unreasonable and are calculated to obstruct justice, then there is a good chance that the judge will go along with it.

In this particular situation, the judge may consider that is preferable to give the defendant a proper opportunity to put a structured defence together – but it is worth a try, to ask the judge to bring it all to an end at this hearing.

On the basis of what we have heard from the claimant here, this entire litigation and hearing is really a complete waste of everybody's time

[BankFodder]

So on the basis of that, a further amended reply including a request that it be treated as trial of the substantive claim.

Check the page numbers

 

 

astral order (3).docx

[Webbo87]

Thanks both for your replies. Although submitting this as a response will provide the defendant all the details, I don't feel the defendant can reply with a credible response? The case is cut and dry with the response and evidence I have provided. I have attached my final reply and the cover letter I will send to the court. Please could you advise if anything should be added or amended. I will sent a copy to Dartford court via Royal Mail signed for service.

 

I still have the question regarding the Discretionary litigant in person costs which takes my claim above the £10,000 limit for small court claims, can this be removed?

 

Thanks,

Chris

astral order v3.docx Court Cover Letter.docx

[BankFodder]

Costs aren't included in the track allocation calculations

[BankFodder]

It all looks fine.

I really don't see what would be the problem anyway about disclosing the details to the defendant. The defendant has already set out his stall and it will be difficult now for the defendant to come up with a different story to explain all the visits and conversations et cetera.

As long as you are open straight dealing – I don't think there is any problem

[Webbo87]

Thanks all for your assistance so far.

My reply and cover letter has been sent to Dartford court this morning.

I will follow up in a few days with a phone call to ensure it has arrived and been added to my file.

 

Will be back on here as soon as I hear any further information.

Thanks again,

Chris

[Webbo87]

Hi, I just wanted your opinions on the location of the car and where I should leave it.

The car was left with Astral Motors on the 16th September after we refused it.

We are legally the owners of the vehicle and it still has valid Tax and insurance, the car is sitting on the forecourt at the garage.

 

Are we best to leave it with them until the court case is settled or would it be better to go and collect the vehicle and have it on my property/driveway? 

[BankFodder]

It's a tricky question because he has your car and he has your money so that puts you in a better position but on the other hand I think that the vehicle should now be his responsibility and you should detach yourself from it it completely which means relinquishing ownership and making it very clear that the vehicle has been returned to him.

Of course this would mean that if something went wrong he could walk off with your money and your vehicle.

I'm not quite sure what is best to advise

 

 

[BankFodder]

I've been reflecting on this and it seems to me that although it is probably in your interests to leave the car with him, you should retain ownership and not relinquish it until the matter is settled.

I don't think there is any conflict between rejecting the car contractually on one hand and retaining the ownership until the matter is settled.

By retaining ownership, if there happens to be any move to bankruptcy or something, then you can still assert your ownership of the vehicle. If there was any attempt to dispose of the vehicle without settling your refund first then I think you could legitimately report it to the police are stolen.

Goods which are stolen remain stolen even if they are sold on. That means that if the car is sold to somebody and it is yours, then it remains yours and you remain stolen and the purchaser of the car would have purchased stolen property and they will then have to address the problem with the seller – and not with you.

If you're able to take photographs of the car then I suggest that you do to make sure that it is in good condition – and you if you are able to keep an eye on it at all then you should do and photograph it from time to time.

I think it would be also worthwhile sending the garage a letter saying that you are rejecting the vehicle that you are retaining title to it until they have settled the refund and that it is on their forecourt and as such they are responsible for its safekeeping.

Send this letter by recorded delivery, of course.

[Webbo87]

Just an update, we have been set a court date of 16th June. I guess there is nothing more to be done now other then wait for the hearing.

 

Thank you all for the help so far.

[BankFodder]

Thanks for the update. I'm sorry that it is so long in the future. I'm sure it must be very frustrating

[AndyOrch]

6 hours ago, Webbo87 said:

Just an update, we have been set a court date of 16th June. I guess there is nothing more to be done now other then wait for the hearing.

 

Thank you all for the help so far.

 

If you have the hearing date, you must have the courts Directions so you need to prepare your statement and disclosures.

 

Andy

[Webbo87]

I slight update on this. It appears Astral Motors have ceased trading, a quick google search stated them as permanently closed, also the website is no longer active. When calling the office number a default message of the number if no longer in use is played, there is also no response on the company mobile phone number, however this does ring and we have left multiple voicemails trying to contact Astral Motors to see if the case can be resolved out of court. A company lookup shows Astral Motors as active still, however company accounts have not been submitted and are overdue. We have driven down to the forecourt and there are still a number cars onsite (around 50 cars, including ours locked up on their grounds), the Astral Motors company sign has been removed from the property.

 

My immediate concern is what happens if Astral Motors does cease trading fully while the court case is still open? Does the case revert to the company owner, or would it be passed onto a potential new owner of the company if sold?

[BankFodder]

If the company is sold then it hasn't ceased to exist, is simply different hands. However I'm afraid our experience is that these companies tend not to be sold. They simply get Phoenixed in other words, they are wound up and then they reappear with a different name.

It is very frustrating that there is such a long date for the hearing. I'm wondering whether it's possible to make an application notice to get a more rapid hearing on the basis that they are appearing to try and do a runner. If there are cars there then it means that they have some assets to enforce against currently – but if those assets are removed, then I'm afraid you will be left trying to enforce again thin air.

 

Frankly it's not looking good

 

@Andyorch

[AndyOrch]

What stage is your claim at...you didn't respond to my last post of January ?