Small Claims Advice...
Discussion
I was always under the impression the Small Claims service was relatively straightforward - how wrong was I...
I could do with a bit of advice, but here's a brief overview of what's what.
March 2016 - we buy a car from a dealer (from home) which turns out to be knackered (needs engine rebuild). Car trader says get lost.
May 2016 - (after a bit of backwards & forwards) we start the Small Claims process.
August 2016 - we have a mediation appointment arranged. Trader cancels this on the day as "too busy".
We eventually get a hearing date for December 2016 and the court asks for documents by end November. Trader fails to respond.
December 2016 - we ask for judgement & are given it.
January 2017 - trader asks for a "set aside" hearing as they had never received any paperwork. They had moved house (in September) & didn't tell the court they had moved as "they forgot". This is granted so my judgement is given a "stay" (? I think).
March 2017 - trader has the "set aside" hearing and is given 2 weeks to file two defences (the case is against 2 defendants - the Ltd Co and the owner of the company - this is because I never received any paperwork referring to the Ltd Co but did have his name). The trader was present at the set aside hearing as was I.
April 2017 - trader does not file any defence by the due date. I ask for judgement again & I am given it.
May 2017 - I ask for the order for the amount I am owed and the judge agrees & issues an order "payable forthwith".
May 2017 - I escalate (via a bailiff company) the case to the High Court and get a "Writ of Control".
May 2017 - The bailiffs write to the trader saying we'll be round in 7 days.
June 2017 - The bailiffs go round & the trader has again applied for a "set aside".
June 2017 - Because the trader has now moved house, the case has now been transferred to a different court & is now awaiting listing for another "set aside".
Basically, what I'd like to know is - what is the point in getting a judgement if all someone has to do is keep asking for it to be "set aside"?
What do I need to do now?
I could do with a bit of advice, but here's a brief overview of what's what.
March 2016 - we buy a car from a dealer (from home) which turns out to be knackered (needs engine rebuild). Car trader says get lost.
May 2016 - (after a bit of backwards & forwards) we start the Small Claims process.
August 2016 - we have a mediation appointment arranged. Trader cancels this on the day as "too busy".
We eventually get a hearing date for December 2016 and the court asks for documents by end November. Trader fails to respond.
December 2016 - we ask for judgement & are given it.
January 2017 - trader asks for a "set aside" hearing as they had never received any paperwork. They had moved house (in September) & didn't tell the court they had moved as "they forgot". This is granted so my judgement is given a "stay" (? I think).
March 2017 - trader has the "set aside" hearing and is given 2 weeks to file two defences (the case is against 2 defendants - the Ltd Co and the owner of the company - this is because I never received any paperwork referring to the Ltd Co but did have his name). The trader was present at the set aside hearing as was I.
April 2017 - trader does not file any defence by the due date. I ask for judgement again & I am given it.
May 2017 - I ask for the order for the amount I am owed and the judge agrees & issues an order "payable forthwith".
May 2017 - I escalate (via a bailiff company) the case to the High Court and get a "Writ of Control".
May 2017 - The bailiffs write to the trader saying we'll be round in 7 days.
June 2017 - The bailiffs go round & the trader has again applied for a "set aside".
June 2017 - Because the trader has now moved house, the case has now been transferred to a different court & is now awaiting listing for another "set aside".
Basically, what I'd like to know is - what is the point in getting a judgement if all someone has to do is keep asking for it to be "set aside"?
What do I need to do now?
Sounds incredibly frustrating, OP.
If I were you, I'd be tempted to prepare a chronology highlighting the key dates and occurrences you have outlined above. I would then file it with the Court and send a copy to your opponent 48 hours before the next hearing and highlight it to the judge in the hope s/he decides that it has dragged on for long enough and your opponent does not seem to be taking things seriously. Just keep it factual, brief and on point.
You can take extra copies on the day, together with all documentary evidence in support to hand up if requested.
A short accompanying letter can say you thought it might be helpful for the new Court to have a summary of the proceedings to date in terms of the parties' conduct.
Best of luck.
If I were you, I'd be tempted to prepare a chronology highlighting the key dates and occurrences you have outlined above. I would then file it with the Court and send a copy to your opponent 48 hours before the next hearing and highlight it to the judge in the hope s/he decides that it has dragged on for long enough and your opponent does not seem to be taking things seriously. Just keep it factual, brief and on point.
You can take extra copies on the day, together with all documentary evidence in support to hand up if requested.
A short accompanying letter can say you thought it might be helpful for the new Court to have a summary of the proceedings to date in terms of the parties' conduct.
Best of luck.
Just because he's filed for a second set aside Judgment doesn't mean he'll get anywhere. As he was present at the hearing, it doesn't matter that he's since moved address - it can be shown that he was aware of the proceedings, and he was served with documents correctly.
Can't imagine this'll go well for him, you'll likely get costs. The Courts do tend to be pretty reasonable. Don't think you're obliged to stop enforcement action pending the hearing either, only if he succeeds - we don't if there's no prospect of the application succeeding. Until the hearing the Judgment still stands and should be enforceable.
Can't imagine this'll go well for him, you'll likely get costs. The Courts do tend to be pretty reasonable. Don't think you're obliged to stop enforcement action pending the hearing either, only if he succeeds - we don't if there's no prospect of the application succeeding. Until the hearing the Judgment still stands and should be enforceable.
Exactly this if 'Can't pay well take it away' are to be believed. The debtor will often claim they have applied for a set aside but if the Bailiffs have a live High Court writ the enforcement should go ahead anyway. Any monies are then held for 14 days in case he goes ahead with the set aside. Pretty sure although most rant and rave about it rarely do they go back to court and win.
Insist on enforcement if the writ is still live!
Insist on enforcement if the writ is still live!
Meoricin said:
Just because he's filed for a second set aside Judgment doesn't mean he'll get anywhere. As he was present at the hearing, it doesn't matter that he's since moved address - it can be shown that he was aware of the proceedings, and he was served with documents correctly.
Can't imagine this'll go well for him, you'll likely get costs. The Courts do tend to be pretty reasonable. Don't think you're obliged to stop enforcement action pending the hearing either, only if he succeeds - we don't if there's no prospect of the application succeeding. Until the hearing the Judgment still stands and should be enforceable.
The bailiffs say they can't do anything at the moment as the defendant has been given a "stay" pending their application for another set aside. Can't imagine this'll go well for him, you'll likely get costs. The Courts do tend to be pretty reasonable. Don't think you're obliged to stop enforcement action pending the hearing either, only if he succeeds - we don't if there's no prospect of the application succeeding. Until the hearing the Judgment still stands and should be enforceable.
It's incredibly annoying to be honest.
elanfan said:
Exactly this if 'Can't pay well take it away' are to be believed. The debtor will often claim they have applied for a set aside but if the Bailiffs have a live High Court writ the enforcement should go ahead anyway. Any monies are then held for 14 days in case he goes ahead with the set aside. Pretty sure although most rant and rave about it rarely do they go back to court and win.
Insist on enforcement if the writ is still live!
The "can't pay" people are the one I'm using!Insist on enforcement if the writ is still live!
They did confirm with the court that they had applied for a set aside and because they'd moved, the court granted a "stay" and then transferred the case to a different court so they could make the decision on the set aside. The new court now (apparently) has to give them a hearing to hear their reasons for a set aside and can then tell them to bugger off or grant them another set aside hearing. Presumably, if they tell them to bugger off, the stay is lifted and the bailiffs can go round and annoy them?
elanfan said:
When is the new set aside hearing? Heard any more?
I have actually - a new hearing is for the 10th July and I have a copy of the defendants application.I'll post up a bit more coherent reply in the morning, but the reasons for them wanting another set aside seem ridiculous (to me anyway!).
I'm struggling to find a solicitor that wants anything to do with a Small Claims hearing so any advice would be much appreciated
We will all be interested to hear more. My suspicion is he's playing the system hoping you'll get fed up and give up. Keep at him/it and hopefully you'll get the satisfaction of a forced enforcement if you know what I mean. I presume they automatically video each one? Wouldn't it be great to get access to that? You could post a link to it on a review site for his business. Well we can dream.
Ok, here goes...
Defendant is asking to "stay a writ of control and set aside the judgment".
In support of her application, she is relying on the evidence below (ticked box).
"I'm pregnant, I don't work, I have no income. I'm suffering panic attacks with the claimant sending bayliffs (sic) and the Can't Pay Take it Away tv programme to my house where my children are its absolutely disgusting"
Then, on a separate letter (addressed from the 2nd defendant - not the 1st) she says :-
"the day we was in court the judge told both parties a letter would be sent out with instructions of what to do next. I know the judge went over instructions on the day I am not denying that, but this whole situation has been causing me lots of stress and I was so nervous on the day I could barely talk and didn't write anything down."
Basically, we had a hearing on the 17th March. The judge gave the defendant until the 31st March to file 2 defences (first defendant & second defendant) and me until the 19th April to respond (bit longer because of Easter). By the 4th April, no defence had been filed so we asked (again) for judgment and won. At the hearing, she was there with her partner so he could have written something down (we did) and she could have phoned up after the hearing to confirm what was required. She didn't send anything in until towards the end of April. The judge never said anything would be sent out, and her claim she should barely talk is ridiculous as at one point the judge had to tell her to shut up.
I've now drafted up a letter / chronology highlighting every time the defendant has either failed to respond or messed people about.
I could do with knowing is there anything I could put in a letter or how I even word something I'd like to be taken into consideration. Is my letter effectively a witness statement?
Defendant is asking to "stay a writ of control and set aside the judgment".
In support of her application, she is relying on the evidence below (ticked box).
"I'm pregnant, I don't work, I have no income. I'm suffering panic attacks with the claimant sending bayliffs (sic) and the Can't Pay Take it Away tv programme to my house where my children are its absolutely disgusting"
Then, on a separate letter (addressed from the 2nd defendant - not the 1st) she says :-
"the day we was in court the judge told both parties a letter would be sent out with instructions of what to do next. I know the judge went over instructions on the day I am not denying that, but this whole situation has been causing me lots of stress and I was so nervous on the day I could barely talk and didn't write anything down."
Basically, we had a hearing on the 17th March. The judge gave the defendant until the 31st March to file 2 defences (first defendant & second defendant) and me until the 19th April to respond (bit longer because of Easter). By the 4th April, no defence had been filed so we asked (again) for judgment and won. At the hearing, she was there with her partner so he could have written something down (we did) and she could have phoned up after the hearing to confirm what was required. She didn't send anything in until towards the end of April. The judge never said anything would be sent out, and her claim she should barely talk is ridiculous as at one point the judge had to tell her to shut up.
I've now drafted up a letter / chronology highlighting every time the defendant has either failed to respond or messed people about.
I could do with knowing is there anything I could put in a letter or how I even word something I'd like to be taken into consideration. Is my letter effectively a witness statement?
northwest monkey said:
March 2017 - trader has the "set aside" hearing and is given 2 weeks to file two defences (the case is against 2 defendants - the Ltd Co and the owner of the company - this is because I never received any paperwork referring to the Ltd Co but did have his name). The trader was present at the set aside hearing as was I.
northwest monkey said:
In support of her application, she is relying on the evidence below (ticked box).
"I'm pregnant, I don't work, I have no income. I'm suffering panic attacks with the claimant sending bayliffs (sic) and the Can't Pay Take it Away tv programme to my house where my children are its absolutely disgusting"
Then, on a separate letter (addressed from the 2nd defendant - not the 1st) she says :-
"the day we was in court the judge told both parties a letter would be sent out with instructions of what to do next. I know the judge went over instructions on the day I am not denying that, but this whole situation has been causing me lots of stress and I was so nervous on the day I could barely talk and didn't write anything down."
Basically, we had a hearing on the 17th March. The judge gave the defendant until the 31st March to file 2 defences (first defendant & second defendant) and me until the 19th April to respond (bit longer because of Easter). By the 4th April, no defence had been filed so we asked (again) for judgment and won. At the hearing, she was there with her partner so he could have written something down (we did) and she could have phoned up after the hearing to confirm what was required. She didn't send anything in until towards the end of April. The judge never said anything would be sent out, and her claim she should barely talk is ridiculous as at one point the judge had to tell her to shut up.
I've now drafted up a letter / chronology highlighting every time the defendant has either failed to respond or messed people about.
I could do with knowing is there anything I could put in a letter or how I even word something I'd like to be taken into consideration. Is my letter effectively a witness statement?
So which claim is the set aside request for: the one against the Ltd company or the individual? And where does this pregnant woman come into it?"I'm pregnant, I don't work, I have no income. I'm suffering panic attacks with the claimant sending bayliffs (sic) and the Can't Pay Take it Away tv programme to my house where my children are its absolutely disgusting"
Then, on a separate letter (addressed from the 2nd defendant - not the 1st) she says :-
"the day we was in court the judge told both parties a letter would be sent out with instructions of what to do next. I know the judge went over instructions on the day I am not denying that, but this whole situation has been causing me lots of stress and I was so nervous on the day I could barely talk and didn't write anything down."
Basically, we had a hearing on the 17th March. The judge gave the defendant until the 31st March to file 2 defences (first defendant & second defendant) and me until the 19th April to respond (bit longer because of Easter). By the 4th April, no defence had been filed so we asked (again) for judgment and won. At the hearing, she was there with her partner so he could have written something down (we did) and she could have phoned up after the hearing to confirm what was required. She didn't send anything in until towards the end of April. The judge never said anything would be sent out, and her claim she should barely talk is ridiculous as at one point the judge had to tell her to shut up.
I've now drafted up a letter / chronology highlighting every time the defendant has either failed to respond or messed people about.
I could do with knowing is there anything I could put in a letter or how I even word something I'd like to be taken into consideration. Is my letter effectively a witness statement?
Is the trader using her as a front for his business activities? Since when is getting knocked up a valid defence to a debt claim?
Bear in mind that victory in court is useless if the defendant has no assets on which to levy.
If you think these may be being concealed then check out this link - http://justclaim.co.uk/court-forms/N316-debtor-que...
There are separate forms/explanatory notes for individuals and companies.
It can be a wake up call for kerbside traders to have their financial dealings exposed to detailed scrutiny. The threat of a potential committal order (i.e. jail time) for non compliance can concentrate the mind. Note that you can only make an application after a judgement order is in place and obviously needs to be done before sending a bailff on a potentially wasted journey.
Have a read of this - http://www3.halton.gov.uk/Pages/business/TradingSt...
It explains the process in more detail (which is not without some cost so you will have to decide whether the amount of the debt is sufficient to warrant it).
It also explains other ways of potentially getting your money (or simply payback for mugging you off).
In her application she is claiming to have featured on the TV programme. Is that true or just a figment of her fevered imagination?
Red Devil said:
northwest monkey said:
March 2017 - trader has the "set aside" hearing and is given 2 weeks to file two defences (the case is against 2 defendants - the Ltd Co and the owner of the company - this is because I never received any paperwork referring to the Ltd Co but did have his name). The trader was present at the set aside hearing as was I.
northwest monkey said:
In support of her application, she is relying on the evidence below (ticked box).
"I'm pregnant, I don't work, I have no income. I'm suffering panic attacks with the claimant sending bayliffs (sic) and the Can't Pay Take it Away tv programme to my house where my children are its absolutely disgusting"
Then, on a separate letter (addressed from the 2nd defendant - not the 1st) she says :-
"the day we was in court the judge told both parties a letter would be sent out with instructions of what to do next. I know the judge went over instructions on the day I am not denying that, but this whole situation has been causing me lots of stress and I was so nervous on the day I could barely talk and didn't write anything down."
Basically, we had a hearing on the 17th March. The judge gave the defendant until the 31st March to file 2 defences (first defendant & second defendant) and me until the 19th April to respond (bit longer because of Easter). By the 4th April, no defence had been filed so we asked (again) for judgment and won. At the hearing, she was there with her partner so he could have written something down (we did) and she could have phoned up after the hearing to confirm what was required. She didn't send anything in until towards the end of April. The judge never said anything would be sent out, and her claim she should barely talk is ridiculous as at one point the judge had to tell her to shut up.
I've now drafted up a letter / chronology highlighting every time the defendant has either failed to respond or messed people about.
I could do with knowing is there anything I could put in a letter or how I even word something I'd like to be taken into consideration. Is my letter effectively a witness statement?
So which claim is the set aside request for: the one against the Ltd company or the individual? And where does this pregnant woman come into it?"I'm pregnant, I don't work, I have no income. I'm suffering panic attacks with the claimant sending bayliffs (sic) and the Can't Pay Take it Away tv programme to my house where my children are its absolutely disgusting"
Then, on a separate letter (addressed from the 2nd defendant - not the 1st) she says :-
"the day we was in court the judge told both parties a letter would be sent out with instructions of what to do next. I know the judge went over instructions on the day I am not denying that, but this whole situation has been causing me lots of stress and I was so nervous on the day I could barely talk and didn't write anything down."
Basically, we had a hearing on the 17th March. The judge gave the defendant until the 31st March to file 2 defences (first defendant & second defendant) and me until the 19th April to respond (bit longer because of Easter). By the 4th April, no defence had been filed so we asked (again) for judgment and won. At the hearing, she was there with her partner so he could have written something down (we did) and she could have phoned up after the hearing to confirm what was required. She didn't send anything in until towards the end of April. The judge never said anything would be sent out, and her claim she should barely talk is ridiculous as at one point the judge had to tell her to shut up.
I've now drafted up a letter / chronology highlighting every time the defendant has either failed to respond or messed people about.
I could do with knowing is there anything I could put in a letter or how I even word something I'd like to be taken into consideration. Is my letter effectively a witness statement?
Is the trader using her as a front for his business activities? Since when is getting knocked up a valid defence to a debt claim?
Bear in mind that victory in court is useless if the defendant has no assets on which to levy.
If you think these may be being concealed then check out this link - http://justclaim.co.uk/court-forms/N316-debtor-que...
There are separate forms/explanatory notes for individuals and companies.
It can be a wake up call for kerbside traders to have their financial dealings exposed to detailed scrutiny. The threat of a potential committal order (i.e. jail time) for non compliance can concentrate the mind. Note that you can only make an application after a judgement order is in place and obviously needs to be done before sending a bailff on a potentially wasted journey.
Have a read of this - http://www3.halton.gov.uk/Pages/business/TradingSt...
It explains the process in more detail (which is not without some cost so you will have to decide whether the amount of the debt is sufficient to warrant it).
It also explains other ways of potentially getting your money (or simply payback for mugging you off).
In her application she is claiming to have featured on the TV programme. Is that true or just a figment of her fevered imagination?
I bought a car advertised on Autotrader from a trader.
Car turned out to be very broken & dealer wasn't interested.
I had never received any paperwork so did some homework & found out the "dealer" was the blokes mrs.
I lodged the case against her (as she was the owner of the business).
I won in December but in Jan she asked for set aside.
In March, judge said he would give her 2 weeks to argue why it was nothing to do with her, but he added on her Ltd company at the same time (as 2nd defendant).
As nobody responded, I now have judgment against her, and her Ltd company.
By amazing coincidence, she (or her company) no longer have any cars on Autotrader, however her partner has just set up a new Ltd company trading from their home address.
So to answer your questions...
Yes, I believe he's fronting this in her name. However, they do have several dissolved companies between them so I'm sure she knows exactly what's going on.
I'm with you on the "pregnancy as a defence" - I'm not convinced that's a valid reason either.
Oh they are far from skint. They live in a very nice (albeit rented but £1500 a month rented) property & have some very nice cars (RR Sport, Jag XJ etc.).
In a previous letter to the court for the set aside in March, one of the reasons she wanted a set aside was because "she didn't want her credit score ruined".
I don't know if the "Can't Pay" TV programme have been round - I have used DCBL though so I suppose it is possible. In fact, I hope they have & I hope they had it written all over the side of their vans and that her neighbours all saw them.
Having read her application, I can't work out if it is from her or her company. The application form is signed by her, however the additional bit is from her company.
She has plastered the "FSB" logo all over her letter - can I find out if she is a member of the FSB?
Thanks for your links - I'll certainly read through them
My view is, is that she wants to argue her name to be taken off the claim & it left in her companies name. She can then cease trading from that company and I can't go after anything.
I want to put as strong a case forward as possible as to why her application should be refused, the stay lifted and my judgment can then be enforced.
Bookmarked, I so want to see a positive outcome for you.
Boils my piss all these people setting up and dissolving companies to get out of paying out what is owed.
I'm not a business person or have any real understanding of the law or how it pertains to companies etc, but if you can dissolve a company (ltd) without paying off any debts it still owes after closing down then how do any of these clowns go bankrupt. Surely you just run up massive debts against the ltd company (thus protecting your personal assets), wait until people are getting close to getting you to court for the money but dissolve it before hand and then just walk away. Start a new company and repeat, repeat, repeat.
Could someone with a business understanding explain or point me in the direction of a reliable link. It can't possibly be legal/possible to do this otherwise everybody would be on the scam.
Edited to apologise to op for hijacking his thread slit for my own personal understanding
Boils my piss all these people setting up and dissolving companies to get out of paying out what is owed.
I'm not a business person or have any real understanding of the law or how it pertains to companies etc, but if you can dissolve a company (ltd) without paying off any debts it still owes after closing down then how do any of these clowns go bankrupt. Surely you just run up massive debts against the ltd company (thus protecting your personal assets), wait until people are getting close to getting you to court for the money but dissolve it before hand and then just walk away. Start a new company and repeat, repeat, repeat.
Could someone with a business understanding explain or point me in the direction of a reliable link. It can't possibly be legal/possible to do this otherwise everybody would be on the scam.
Edited to apologise to op for hijacking his thread slit for my own personal understanding
Markbarry1977 said:
Bookmarked, I so want to see a positive outcome for you.
Boils my piss all these people setting up and dissolving companies to get out of paying out what is owed.
I'm not a business person or have any real understanding of the law or how it pertains to companies etc, but if you can dissolve a company (ltd) without paying off any debts it still owes after closing down then how do any of these clowns go bankrupt. Surely you just run up massive debts against the ltd company (thus protecting your personal assets), wait until people are getting close to getting you to court for the money but dissolve it before hand and then just walk away. Start a new company and repeat, repeat, repeat.
Could someone with a business understanding explain or point me in the direction of a reliable link. It can't possibly be legal/possible to do this otherwise everybody would be on the scam.
Edited to apologise to op for hijacking his thread slit for my own personal understanding
No worriesBoils my piss all these people setting up and dissolving companies to get out of paying out what is owed.
I'm not a business person or have any real understanding of the law or how it pertains to companies etc, but if you can dissolve a company (ltd) without paying off any debts it still owes after closing down then how do any of these clowns go bankrupt. Surely you just run up massive debts against the ltd company (thus protecting your personal assets), wait until people are getting close to getting you to court for the money but dissolve it before hand and then just walk away. Start a new company and repeat, repeat, repeat.
Could someone with a business understanding explain or point me in the direction of a reliable link. It can't possibly be legal/possible to do this otherwise everybody would be on the scam.
Edited to apologise to op for hijacking his thread slit for my own personal understanding
One of the guys in this link is my next door neighbour.
http://www.lancashiretelegraph.co.uk/news/10177405...
Within months, he was doing exactly the same thing (even an incredibly similar name) but with the mother in law as the director and him as the H&S manager. Incidentally, the mother in law is over 80...
Nothing to do with my tale of woe, but interesting all the same!
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