Help! Won case, now claimant want's judgement put aside!
Discussion
Hi, I'll try to keep this brief, so long story short. I'm a partner in a business who took possession of a property in December 2011 from a private landlord.
1) Sept 2014, the landlord defaults on the mortgage payments, the banks take possession and appoint a managing agent.
2) Dec 14 we get notification from the County Court that landlord is taking us to court for unpaid utilities of around £5K. In this notification it stated that the landlord had 14 days to provide us with evidence of why - this was not received.
3) I investigate this and after obtaining a full statement from the utility company, realise he has been overcharging us, so submit a very detailed counter claim for £8.5K.
4) Allocation hearing set for April 15, landlord requests change.
5) Allocation hearing set for May 15, I turn up, landlord does not. In this hearing the judge stated:
- Landlord had requested to adjourn hearing, judge refused.
- Judge ordered that landlord pay a hearing fee of £355 by end July, which was not paid. My understanding was that this would allow the landlord to submit his evidence and he should have now forfeited this right.
- Judge ordered that all parties send each other and court all evidence by 11/07/15, which I did and landlord did not.
- Date set for full hearing on 21/08/15.
6) I turn up for full hearing, Landlord does not. Judge reads last minute request from Landlord to adjourn hearing and refuses request. Judge hears my evidence and finds in our favour.
7) 20/09/15 I get a letter from Landlord Solicitor asking I agree to put aside the judgement so landlord can submit his evidence. I decline.
8) 13/10/15 I get letter from court saying a hearing has been allocated for 26/10/15 to decide if judgement should be put aside. Stated in letter:
- Judgement on 21/08/15 be put aside pursuant to CPR13; or in the alternative
- Relief from sanctions pursuant to CPR 3.9
- Landlord be given permission to pursue and defend claim
- all enforcement be stayed
- Landlord had previously written to court and submitted N244 requesting that full hearing be adjourned as he was out the country. This application does not appear to have been actioned but cheque making payment for this was cashed.
So, do I need to seek legal advice for this and get some representation at the hearing or go myself and present the facts of him not following any correct procedure (as above) and trust that the judge sees sense?
Any other thoughts or suggestions on this I have missed?
Thanks
1) Sept 2014, the landlord defaults on the mortgage payments, the banks take possession and appoint a managing agent.
2) Dec 14 we get notification from the County Court that landlord is taking us to court for unpaid utilities of around £5K. In this notification it stated that the landlord had 14 days to provide us with evidence of why - this was not received.
3) I investigate this and after obtaining a full statement from the utility company, realise he has been overcharging us, so submit a very detailed counter claim for £8.5K.
4) Allocation hearing set for April 15, landlord requests change.
5) Allocation hearing set for May 15, I turn up, landlord does not. In this hearing the judge stated:
- Landlord had requested to adjourn hearing, judge refused.
- Judge ordered that landlord pay a hearing fee of £355 by end July, which was not paid. My understanding was that this would allow the landlord to submit his evidence and he should have now forfeited this right.
- Judge ordered that all parties send each other and court all evidence by 11/07/15, which I did and landlord did not.
- Date set for full hearing on 21/08/15.
6) I turn up for full hearing, Landlord does not. Judge reads last minute request from Landlord to adjourn hearing and refuses request. Judge hears my evidence and finds in our favour.
7) 20/09/15 I get a letter from Landlord Solicitor asking I agree to put aside the judgement so landlord can submit his evidence. I decline.
8) 13/10/15 I get letter from court saying a hearing has been allocated for 26/10/15 to decide if judgement should be put aside. Stated in letter:
- Judgement on 21/08/15 be put aside pursuant to CPR13; or in the alternative
- Relief from sanctions pursuant to CPR 3.9
- Landlord be given permission to pursue and defend claim
- all enforcement be stayed
- Landlord had previously written to court and submitted N244 requesting that full hearing be adjourned as he was out the country. This application does not appear to have been actioned but cheque making payment for this was cashed.
So, do I need to seek legal advice for this and get some representation at the hearing or go myself and present the facts of him not following any correct procedure (as above) and trust that the judge sees sense?
Any other thoughts or suggestions on this I have missed?
Thanks
Jasandjules said:
What grounds are they asking it to be set aside under?
Details in my point 8 is all that has been submitted. I guess the grounds are this but am not sure: 'Landlord had previously written to court and submitted N244 requesting that full hearing be adjourned as he was out the country. This application does not appear to have been actioned but cheque making payment for this was cashed.'
warp9 said:
Details in my point 8 is all that has been submitted. I guess the grounds are this but am not sure:
'Landlord had previously written to court and submitted N244 requesting that full hearing be adjourned as he was out the country. This application does not appear to have been actioned but cheque making payment for this was cashed.'
The N244 application to vacate the hearing originally, do you have a copy of it? If so, what evidence did he provide that he was out of the country? I would anticipate he had a pre-booked holiday. If it was booked after the hearing was listed, then I can see why the DJ refused to vacate. Also what notice was given i.e. was it made within a week of the notification listing the hearing. 'Landlord had previously written to court and submitted N244 requesting that full hearing be adjourned as he was out the country. This application does not appear to have been actioned but cheque making payment for this was cashed.'
Also, "cheque cashed" simply means the application has been actioned. That it was not granted is a different question. If their lawyer thinks that when payment for an application it taken that means you have been granted your application, they are sorely mistaken.
warp9 said:
I've not seen the N244 and don't know his circumstances regarding the extension request, but it was only a few weeks before the hearing.
I'm starting to feel more confident about presenting all the areas he hasn't followed or complied to.
You should have been provided with a copy of his application (and evidence) to vacate the hearing by him, or the court.I'm starting to feel more confident about presenting all the areas he hasn't followed or complied to.
warp9 said:
Is that the landlord or courts fault and does that strengthen mine or his case?
Depends. He may have ticked the "sent to the other party" box so the court assumed he did so.But you can ask the court for a copy of the application. You need to see how strong it is to justify a potential setting aside...
Jasandjules said:
Depends. He may have ticked the "sent to the other party" box so the court assumed he did so.
But you can ask the court for a copy of the application. You need to see how strong it is to justify a potential setting aside...
Thanks for the info, will contact them on Monday. But you can ask the court for a copy of the application. You need to see how strong it is to justify a potential setting aside...
warp9 said:
Thanks for the info, will contact them on Monday.
Also what date was the written judgment sent to the parties and what date did the landlord make the application to set aside? You should also for your light reading google the Mitchell judgment regarding 3.9. For example
http://www.pumpcourtchambers.com/blog/court-appeal...
Jasandjules said:
Also what date was the written judgment sent to the parties and what date did the landlord make the application to set aside?
Don't have exact dates to hand as file at the office. Judgement in my favour was on 21/8, letter of written judgement was received apx a week later. He put in application to set aside I think on 23/9. What is the implication of this?
ORD said:
Mitchell is, in effect, no longer good law. I'll ping you details of the current cases when I remember their names!
This?http://www.bailii.org/ew/cases/EWCA/Civ/2015/774.h...
Jasandjules said:
Not sure I had that one in mind, but it does look to be on point. Well I spoke to the courts Monday morning who asked me to put the request for a copy of N244 and previous request the claimant had made to defer the previous hearings in writing. Just phoned to be told that the backlog is 8 days to process, which means I am unlikely to have this evidence to view prior to the hearing.
So my plan for the hearing on Monday is to list all points that the landlord has failed upon and decisions that have gone against him. In summary:
- Not providing evidence of his case when claim first bought about (he had 14 days)
- Not providing evidence to us when he requested a change of preliminary hearing set for 23/04/15
- Preliminary hearing rescheduled for 15/05/05 which landlord does not attend.
*Believe the landlord requested this to be rescheduled which judge declined (no information set to me)
*Judge ordered landlord to pay £355 hearing fee by end July, which I don't believe was paid. I believe this was to allow the landlord to submit his evidence, the right of which should now be forfeited.
- Judge ordered that all parties submit evidence. Landlord did not do.
- Full hearing set for 21/08/15 which went ahead
*Landlord submitted late request to change date - no information sent to us
*Judge at that hearing declined this request.
- Copy of N244 application to set aside the judgement not sent to us.
So
He has failed to follow court process and procedure at every step.
Has already forfeited his right to submit evidence by not paying the required fee.
Has already had his request to defer the full hearing reviewed and dismissed by a Judge.
All available evidence has been presented to a Judge, who on the balance of probability found in our favour.
How does that sound?
So my plan for the hearing on Monday is to list all points that the landlord has failed upon and decisions that have gone against him. In summary:
- Not providing evidence of his case when claim first bought about (he had 14 days)
- Not providing evidence to us when he requested a change of preliminary hearing set for 23/04/15
- Preliminary hearing rescheduled for 15/05/05 which landlord does not attend.
*Believe the landlord requested this to be rescheduled which judge declined (no information set to me)
*Judge ordered landlord to pay £355 hearing fee by end July, which I don't believe was paid. I believe this was to allow the landlord to submit his evidence, the right of which should now be forfeited.
- Judge ordered that all parties submit evidence. Landlord did not do.
- Full hearing set for 21/08/15 which went ahead
*Landlord submitted late request to change date - no information sent to us
*Judge at that hearing declined this request.
- Copy of N244 application to set aside the judgement not sent to us.
So
He has failed to follow court process and procedure at every step.
Has already forfeited his right to submit evidence by not paying the required fee.
Has already had his request to defer the full hearing reviewed and dismissed by a Judge.
All available evidence has been presented to a Judge, who on the balance of probability found in our favour.
How does that sound?
My personal view is that makes sense in practice. However, I've also been in an almost identical situation in a set-aside hearing where the Deputy District Judge has simply sided with the Defendant, despite the Defendant's solicitors making ridiculous mistakes, and failing to supply me with documentation, despite my request.
My gut feeling, although it is short notice, that you might want to consider rethinking:
By that I mean when you lay out the scenarios and logic you have about £13,000 at stake in just the claims. Additionally, if the claim is set aside, you are literally going back to the start so will have the considerable time and cost in running the claim again.
In your shoes, I would be sorely tempted to try and knock this on the head if possible at this stage.
By that, I would very much consider contacting a solicitor, and despite the short notice employing counsel that is specialist in this area. This area is relatively new law, and at the lowest end of the courts they won't have much experience in implementing it.
In terms of costs, that's something to consider, although, if the applicant has acted unreasonably in his application, then (win or lose) you might get a proportion of those covered. However, as I've said, that's for a professional to look at your whole case and advise.
If you want the name of a very good, reasonably local solicitor experienced in this type of litigation, let me know. There's also chambers in Birmingham as well - presuming that's where the hearing is.
My gut feeling, although it is short notice, that you might want to consider rethinking:
By that I mean when you lay out the scenarios and logic you have about £13,000 at stake in just the claims. Additionally, if the claim is set aside, you are literally going back to the start so will have the considerable time and cost in running the claim again.
In your shoes, I would be sorely tempted to try and knock this on the head if possible at this stage.
By that, I would very much consider contacting a solicitor, and despite the short notice employing counsel that is specialist in this area. This area is relatively new law, and at the lowest end of the courts they won't have much experience in implementing it.
In terms of costs, that's something to consider, although, if the applicant has acted unreasonably in his application, then (win or lose) you might get a proportion of those covered. However, as I've said, that's for a professional to look at your whole case and advise.
If you want the name of a very good, reasonably local solicitor experienced in this type of litigation, let me know. There's also chambers in Birmingham as well - presuming that's where the hearing is.
Edited by JustinP1 on Thursday 22 October 10:52
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