Reply to N244

[frank759]

Default judgement granted for a small claim two months ago.

Claimant still didn't reply so high court write applied for and granted.

Bailiff's sent to premises and payment collected.

A few days before funds are to be released from the bailiff to claimant, a letter is received from the defendant's solicitors looking to set aside with N244.

Unsure of their chance of success as I know a timely application is a deciding factor (they waited 5-6 weeks from their solicitors being appointed to filing the N244 and they themselves have acknowledged in the letter).

Is it also a positive factor for the claimant that it's progressed this far (claim, judgement, write, successful enforcement) before they've even submitted N244?

My question is can the claimant reply to the N244 claim form to put their side of the argument forward as to why it shouldn't be set aside (some of the claims from the defendant are false). Or is it just a case of not much can be done now - wait for a judge to decide?

 

[STDFR33]

The court should list a hearing, usually be telephone where you can give your reason why it shouldn’t be set aside.

 

[Michael Loveridge]

Yes, you can put in evidence in response to the application. Ideally, this should be presented as a formal witness statement, but if you can't manage that then a letter would probably suffice.

What you need to say depends on what they've said in their application, as you need to respond to the points made. However, assuming the claim was correctly served then the court won't set the judgement aside if they would probably have lost the case anyway.

 

[frank759]

The court are saying that it's NOT possible to submit a witness statement until a judge has reviewed the N244 claim, which doesn't seem right if the claimant isn't able to object to it upon initial review by the judge...

However, I assume there's only two outcomes from the judges initial review:
1) they reject the N244 claim outright
2) they set a hearing where the defendant can give evidence about why it shouldn't be set aside

i.e. - am I right that there's no 3rd outcome: the judge couldn't set it aside straight away without the claimant being able to object via a hearing?

 

[Michael Loveridge]

I think the court are saying that the judge will consider whether the application has sufficient merit even to list it for hearing at all. He may take the view that it's so hopeless that there's no point wasting everyone's time - including scarce court time - in having a hearing.

This would be quite unusual though - normally a SJA application isn't even seen by a judge, and it's simply listed for hearing by the court staff.

If he does decide that there may be a chance of it succeeding the court will set a hearing date and you will then be able to file a witness statement opposing the application.

 

[White Collar Legal]

The answer is yes. The Claimant can reply. A judge will still decide the application based on the evidence. Michael Loveridge gives good advice.

 

[frank759]

They've now set a court date to hear this, and have said on the letter it's an 'Attended Hearing'

Would I as the claimant HAVE to attend this hearing?

Is it worth appointing a barrister to represent me as the claimant (it's going to cost quite a bit to do that, and I'm wondering is it overkill - i.e. is the onus more on the defendant here and my witness statement might suffice for the judge)?

 

[Gyumri]

The bailiffs should release the money to you as there is no application for a stay of enforcement.

I would oppose the application anyway which you can do yourself or find a junior barrister on a direct access basis who should be able to prepare and attend for £500 which you should be able to recover from the defendant.

I assume the matter is in the county court. As the defendant has now appointed solicitors you should only contact them and not the defendant directly.

 

[White Collar Legal]

If you do not attend the hearing (either in person or via a representative), then you will lose the right to make representations and submissions and the Court can decide the application in your absence.

You are right that your witness statement may help (potentially as a replacement for actual attendance). However, a witness statement can only go so far. If they attend the hearing and say something, and you (or a representative) is not there, then you cannot reply to it.

Your representative need not be a barrister. It can also be a solicitor or legal executive or other authorised lawyer with rights of audience (the right to speak at a hearing)

 

[frank759]

Ok so the bailiff's have already released the money some time ago.

The defendant actually ignored the claim, the judgement, the demand for payment & eventually the bailiff.
They only logged the N244 some 2 months after judgement, and once all the above had happened.

In summary they're claiming for set aside under the test CPR 13.3, which says the judge can do that if they have a reasonable chance of success in a full hearing.

My argument is that another test is they have to act promptly and this surely hasn't happened given the 2 months.

Indeed, if the N244 is upheld then the bailiff will ask me as the claimant for their fees so I'll be even worse off than when started.

How can that be right if we've followed the letter of the law and all the formal court processes which resulted in us having to instruct bailiffs.

Yet they ignored everything and are asking for set aside because they might have a chance of success at trial.


Add to this I'm being quoted north of £1000 for a barrister to attend and I don't even know if it's a good chance of succeeding...

Would welcome any honest comments on the subject, and if anyone knows a barrister who could attend please.

 

[Gyumri]

To apply after two months to set aside the judgment is not "prompt" for cpr 13.3 (2).
The fact the the solicitor thinks that the debtor has a real prospect of defending the claim means that they accept that the claim was properly served- but having a good reason by itself is just one factor and not necessarily of any importance.
You know your case better than anyone but it may be worth finding a junior barrister on a direct access basis for £500.

You can also read judgments online to get a feel of your position which on the face of it sounds strong.

Wards Solicitors v Hendawi [2018] EWHC 1907 (Ch) (26 July 2018)

 

[White Collar Legal]

£1000 is a bit excessive based on what I am hearing. We might be able to help find you someone cheaper. It won't be a barrister though.

 

[Gyumri]

Many junior barristers work on a direct access basis and will help prepare your short statement setting out the facts and attend court on your behalf- but what does the statement of the debtor say as a reason for setting aside the judgment and is this in the county court or High Court? And how much is the claim for?

See also this case where a delay of 30 days was considered too long. (Para 45)

Regency Rolls Ltd & Anor v Carnall [2000] EWCA Civ 379 (16 October 2000)

www.bailii.org

and more recent:

Pincus v Singh & Anor [2023] EWHC 2997 (Ch) (26 October 2023)

 

[frank759]

This is in the county court and their solicitor has acknowledged their late filing the N244 application, stating however that aspect should be ignored because their defence is so strong and that we as the claimant have no chance of winning in a trial (i.e. they are relying heavily on CPR 13.3(1)(a)).

Clearly I disagree, so the opposition to N244 will be effectively take a two-pronged approach:

1) their flagrant abuse of the court process in ignoring ever step from claim through to bailiff action
2) our refusal of their CPR 13.3(1)(a) claim because we do have a good chance of success in court (I won't go into the claim details here)

As this is all based on a judges discretion I would expect that the 2 month delay will be a deciding factor regardless of what they say their chances of success might be at trial..

 

[Newchodge]

This is in the county court and their solicitor has acknowledged their late filing the N244 application, stating however that aspect should be ignored because their defence is so strong and that we as the claimant have no chance of winning in a trial (i.e. they are relying heavily on CPR 13.3(1)(a)).

Clearly I disagree, so the opposition to N244 will be effectively take a two-pronged approach:

1) their flagrant abuse of the court process in ignoring ever step from claim through to bailiff action
2) our refusal of their CPR 13.3(1)(a) claim because we do have a good chance of success in court (I won't go into the claim details here)

As this is all based on a judges discretion I would expect that the 2 month delay will be a deciding factor regardless of what they say their chances of success might be at trial..

If they have a clear chance of success at trial, that is likely to be the deciding feature. (They will also need a good excuse for their behaviour.

 

[Gyumri]

This is in the county court and their solicitor has acknowledged their late filing the N244 application, stating however that aspect should be ignored because their defence is so strong and that we as the claimant have no chance of winning in a trial

The solicitor will have to provide a good reason to explain the delay in responding which would certainly cause you prejudice if the default judgment was said aside.

So I would file a brief witness statement which in the county court I assume is by email setting out the facts (not arguments or opinions) and serve it on the solicitor.

The template for witness statements and how to prepare them is on the internet.

 

[White Collar Legal]

Thanks for the continued commentary on their application. Good luck

 

[frank759]

The solicitor will have to provide a good reason to explain the delay in responding which would certainly cause you prejudice if the default judgment was said aside.

So I would file a brief witness statement which in the county court I assume is by email setting out the facts (not arguments or opinions) and serve it on the solicitor.

The template for witness statements and how to prepare them is on the internet.

Thanks, would you mind just elaborating on the point about causing prejudice as I should probably include that?

 

[frank759]

Also if anyone does know a junior barrister on a direct access basis who can attend court for us please message me

 

[Gyumri]

What area is the county court in? And how much was the judgment for?

 

[frank759]

What area is the county court in? And how much was the judgment for?

Bournemouth and £10k

 

[Gyumri]

A quick search on Google brings up
https://www.3pbdirect.co.uk/office/bournemouth/

Any junior barrister wanting to cut his teeth should be able to deal with the hearing for circa £500 - just email the clerks and tell them you need a direct access barrister for the set aside application.

Witness statements are set out as described - keep to the facts - it will be the judge who will decide the application based on the facts. Your statement needn't be more than one or two pages long supported by copies of documents that are referred to in your statement: pre-action letter, invoice, claim form, request for default judgment, default judgment, receipt for money received from bailiffs, letter received from defendants solicitors.

Witness Statements – Justice UK

www.justice.gov.uk

On such a day the defendant asked me to do or supply ...the cost agreed was £x ...I supplied the service with no complaints and invoiced the defendant but he did not pay. I sent a reminder that I would issue a claim if he didn't pay. The claim was issued on and served by post at his address of...he didn't respond so I requested a default judgment. Bailiffs were instructed to enforce. The defendant paid and I received the funds on date . Two months later on date I received a letter/ notice of application from his solicitor saying he was going to apply to set aside the judgment.
I ask the court to dismiss the application as even if there is any merit to the defendant's case (which is denied) the application has not been made promptly at all, as required by the cpr and case authority. ( this is strictly your opinion and not a fact which it is for the judge to decide but stick in your opinion anyway)

The money received has been utilised in the belief that the litigation had ended.

Statement of truth followed by signature and date.

 

[Michael Loveridge]

Although there has been quite a long delay District Judges tend to take a fairly broad brush approach and aim to achieve rough justice rather than paying too much attention to the actual law!

What this means in practice is that many DJ's will more or less have made up their mind after reading the papers and before the hearing actually starts, and they will then attempt to choose those parts of the law that support their instinct as to who should win.

Consequently, if the DJ considers the Defendant does actually have a good defence to your claim he's quite likely to agree to the application despite the delay simply because he feel that's the right outcome, and also that because of the relatively modest amount involved you're very unlikely to appeal his decision.

On the other hand, if he thinks they're trying it on, and that their defence is shadowy he will then seize on the delay as a reason to dismiss the application, knowing it's equally unlikely that they will appeal.

So can you tell us what the nature of the claim was and what their alleged defence is?