Defence filed at wrong County Court - grounds to set aside?
Discussion
Some of you may remember my previous thread.
This is the next chapter in the story of a Landlord who will go to extreme measures to avoid fixing heating in a property and repaying a tenancy deposit. Here's the background thread: http://www.pistonheads.com/gassing/topic.asp?h=0&a...
Where I left that was I agreed with posters to get the request for Judgment in Default filed as soon as the clock ticks out.
As I thought may happen, the clock did tick out. According to the court, no Defence filed, no Acknowledgement of Service filed. So, after filing my request, I got a Judgment in my favour!
Great. I've started enforcing it.
I have received today an application from the court to have the Judgment set aside. The Landlord's solicitors claim that a Defence was filed 10 days after my request for Judgment, and one day before it was given.
So, my original thinking was they are claiming that both their Acknowledgement of Service and their Defence has not been filed at the Court. Checking these facts this morning with the bulk centre, they confirm that no filing took place of either. Speaking to the local court it's been transferred to, it seems her solicitors sent the Defence to the wrong court, despite of course the correct address being clearly on the paperwork.
As a result, I don't think they filed an Acknowledgement of Service at all, and this would mean the Defence was late. Indeed, the only date record the court has is that the correct Court acknowledged receipt on 28th April, too late in any case, and 6 days later than they claim in the application.
The hearing is on 4th June. I thought I'd post an update, and ask if anyone has experience of the protocol or has any ideas of approaches to of course ensure that the Judgment is not set aside.
In short, does sending a Defence to the wrong court count as 'filing' for the purposes of the CPRs and also, would this technical error on their part be grounds for a set aside?
This is the next chapter in the story of a Landlord who will go to extreme measures to avoid fixing heating in a property and repaying a tenancy deposit. Here's the background thread: http://www.pistonheads.com/gassing/topic.asp?h=0&a...
Where I left that was I agreed with posters to get the request for Judgment in Default filed as soon as the clock ticks out.
As I thought may happen, the clock did tick out. According to the court, no Defence filed, no Acknowledgement of Service filed. So, after filing my request, I got a Judgment in my favour!
Great. I've started enforcing it.I have received today an application from the court to have the Judgment set aside. The Landlord's solicitors claim that a Defence was filed 10 days after my request for Judgment, and one day before it was given.
So, my original thinking was they are claiming that both their Acknowledgement of Service and their Defence has not been filed at the Court. Checking these facts this morning with the bulk centre, they confirm that no filing took place of either. Speaking to the local court it's been transferred to, it seems her solicitors sent the Defence to the wrong court, despite of course the correct address being clearly on the paperwork.
As a result, I don't think they filed an Acknowledgement of Service at all, and this would mean the Defence was late. Indeed, the only date record the court has is that the correct Court acknowledged receipt on 28th April, too late in any case, and 6 days later than they claim in the application.
The hearing is on 4th June. I thought I'd post an update, and ask if anyone has experience of the protocol or has any ideas of approaches to of course ensure that the Judgment is not set aside.
In short, does sending a Defence to the wrong court count as 'filing' for the purposes of the CPRs and also, would this technical error on their part be grounds for a set aside?
Edited by JustinP1 on Wednesday 21st May 12:31
Justin,
I'm sure you're aware of the fall-out from the Mitchell decision. It may be worth reading up on it to see if you can rely on it in order to argue that the Defendant's potentially "more than trivial" failure to comply with a court deadline means that the court should stand by the original judgment.
Cue Bredders telling me that I'm wrong.
I'm sure you're aware of the fall-out from the Mitchell decision. It may be worth reading up on it to see if you can rely on it in order to argue that the Defendant's potentially "more than trivial" failure to comply with a court deadline means that the court should stand by the original judgment.
Cue Bredders telling me that I'm wrong.
Something similar happened to me a few years ago.
I won a case (small claims I am NOT in the legal profession, defending myself)
Basically the solicitor forgot to inform the client of the court date.
I turned up and the claimant and his solicitor did not. By default I won the case.
The solicitor appealed and lost.
The defendant then sued his solicitor and won!
I won a case (small claims I am NOT in the legal profession, defending myself)
Basically the solicitor forgot to inform the client of the court date.
I turned up and the claimant and his solicitor did not. By default I won the case.
The solicitor appealed and lost.
The defendant then sued his solicitor and won!
Something similar happened to me a few years ago.
I won a case (small claims I am NOT in the legal profession, defending myself)
Basically the solicitor forgot to inform the client of the court date.
I turned up and the claimant and his solicitor did not. By default I won the case.
The solicitor appealed and lost.
The defendant then sued his solicitor and won!
I won a case (small claims I am NOT in the legal profession, defending myself)
Basically the solicitor forgot to inform the client of the court date.
I turned up and the claimant and his solicitor did not. By default I won the case.
The solicitor appealed and lost.
The defendant then sued his solicitor and won!
Edited by xuy on Thursday 22 May 10:10
will_ said:
Justin,
I'm sure you're aware of the fall-out from the Mitchell decision. It may be worth reading up on it to see if you can rely on it in order to argue that the Defendant's potentially "more than trivial" failure to comply with a court deadline means that the court should stand by the original judgment.
Cue Bredders telling me that I'm wrong.
Cheers Will.I'm sure you're aware of the fall-out from the Mitchell decision. It may be worth reading up on it to see if you can rely on it in order to argue that the Defendant's potentially "more than trivial" failure to comply with a court deadline means that the court should stand by the original judgment.
Cue Bredders telling me that I'm wrong.
Yes, Mitchell is probably going to be the keystone of it. The judgment is useful as if particularly outlines the differences in the most recent update to the CPRs making it much more strict. In particular it accepts that some parties may not receive justice in order to promote a general standard of compliance throughout the industry.
What also doesn't help them is that all of the pre-action letters were ignored, including a direct warning that ignoring it would cause sanction from the court under the CPRs. Thus the argument will be that this wasn't an isolated mistake, but simply a continuation of wilful ignorance or negligence which has delayed and frustrated justice.
I'm just waiting at the moment for copies of the documents including the Defence as as per my previous thread, their chance of success is very slim as a judgment would effectively state that a landlord who allows an agent to sign a tenancy agreement can keep a tenancy deposit with impunity.
Depending on that, as of course they will need to show a 'real prospect of success', and some counterpoint from here, I'll decide whether to instruct or whether to go myself. Ideally if I can knock this on the head at this hearing I will, but before spending £1k on a solicitor and the same getting a barrister to come to the hearing, I'm weighing the options first.
Edited by JustinP1 on Wednesday 21st May 21:06
Jasandjules said:
Upon what grounds is the application to set aside made?
They claim a Defence was filed on April 22nd. My judgment in default is was filed on 12th April and granted on April 23rd. They argue that judgment was entered wrongly.They actually explain that in a single sentence application. There's no further explanation.
The courts have no record of an Acknowledgment of Service being filed by them. Additionally, the only record of a Defence being filed at the right court is that it was in the system on April 28th, and returned back to them as judgment had already been given.
Edited by JustinP1 on Wednesday 21st May 21:12
zzzzzzzzzzzzzzz said:
How long between hem being aware of judgment and their application to set aside? Take a look at 'Regency Rolls'.
Yes, that's one of the case laws defining prompt action once the judgment was entered. Promptness is not really the issue here as although applying promptly to set aside is a pre-requisite, they weren't slow. zzzzzzzzzzzzzzz said:
Objectively, does their defence have a chance?
I've not seen it yet.From what they've wrote to me it is this:
Mr and Mrs own a property jointly.
Mr and Mrs rent a property jointly, both named on the tenancy agreement.
Mr signs the tenancy agreement.
As such, and according to them, 'Mrs is not party to the agreement.' As Mr has died, this supposedly means she can keep our tenancy deposit and we have no recourse to her about other tenancy issues.
As I understand it, their defence is that all a landlord needs to do to circumnavigate the Housing Act 2004 and just keep tenancy deposits is allow someone else to sign the agreement on your behalf. Like an agent for example.
zzzzzzzzzzzzzzz said:
Jasandjules said:
Upon what grounds is the application to set aside made?
The court may set aside the judgment if there is a real prospect of defending the claim and the application to set aside was made promptly.Justin, Wings is likely to be your best bet in terms of some caselaw re: tenancy agreements. I was going to say signed by an Agent however here the individual is named on the agreement as well......
I would however (subject to Wings' view) be minded to write to them and ask them to confirm that their position is that the tenancy agreement is invalid as it was not signed by one of the parties and accordingly was null and void ab initio, thus your claim needs to be amended to claim for the full return of all rental monies paid as well as the deposit. That would appear to be their defence after all......
Justin, the river has moved on since Mitchell. Loadsa first instance decisions, with some notable ones from leading Commercial Court Judges telling everyone to calm down. There was a Court of Appeal case last month explaining how Mitchell should apply, and I am arguing another one in the Court of Appeal in the next month or so. Mitchell is being somewhat put in its box. Case management has to be robust but fairness and not technicality and point scoring has to be paramount.
Breadvan72 said:
Justin, the river has moved on since Mitchell. Loadsa first instance decisions, with some notable ones from leading Commercial Court Judges telling everyone to calm down. There was a Court of Appeal case last month explaining how Mitchell should apply, and I am arguing another one in the Court of Appeal in the next month or so. Mitchell is being somewhat put in its box. Case management has to be robust but fairness and not technicality and point scoring has to be paramount.
Cheers BV...Without asking you to expend more time than a virtual pint can take up
what's your gut feeling about the two issues, and do you have any relevant case law that might be relevant?The two issues are,
1) Filing a Defence late, with no Acknowledgement of Service. In this case, after a request for judgment by default is filed. When the defence was most likely filed would actually be more than 28 days so out of time even IF an AoS had been filed.
2) The contract case. It's a common internet template contract with one space for 'Landlord' - given as Mr and Mrs, and one space for Landlord signature, signed by him. Clearly, as he filled out the contract in his own hand, he clearly asserts that Mrs is a Landlord too. Thus, he either signs on behalf of the 'Landlord' being them both, or the other interpretation is he signed on behalf of himself and as agent of Mrs.
Edited by JustinP1 on Thursday 22 May 18:09
Breadvan72 said:
Justin, the river has moved on since Mitchell. Loadsa first instance decisions, with some notable ones from leading Commercial Court Judges telling everyone to calm down. There was a Court of Appeal case last month explaining how Mitchell should apply, and I am arguing another one in the Court of Appeal in the next month or so. Mitchell is being somewhat put in its box. Case management has to be robust but fairness and not technicality and point scoring has to be paramount.
By technicality BV, do you mean "following the rules"? Fairness within the judicial system? When did that start?Forums | Speed, Plod & the Law | Top of Page | What's New | My Stuff