Filing Set Aside under CPR23 Rule 10

[Avango Courier]

I'm heading to court to claim a debt from a client.

The client has requested for the case to be adjourned as he now claims he's busy on the day of the court case.

The court has agreed, but stated that I can file a set-aside against the decision as there was no hearing.

Trouble is, I have no idea how to file a set-aside. I've contacted a solicitor but I'm trying to keep costs down as they can't be recovered.

Does anyone have experience with this and can point me in the right direction?

 

[smallclaimsassistance]

Not sure I understand. It seems what you are saying is:

1. You are suing a client;
2. The case has been listed for trial;
3. Your opponent applied for an adjournment;
4. The court granted their application without a hearing;
5. You wish to contest that decision;
6. The court has told you that you can contest the decision as it was made by the court without a hearing.

If all of that is correct, why are you contesting the order?

The reason given is that the defendant is not available. If you contest the order, if the defendant can convince the court they're not available (as they already have, and not difficult to do) the court will not order the hearing to go ahead.

In order to apply for the order to be set aside, you must convince the court that the defendant, in saying that they are not available for the hearing, is either mistaken or lying. If you have convincing evidence in your possession to prove that, fine, but do you? That's what it will take.

If you apply and fail, the hearing will still be adjourned, just as it would be if a hearing was listed and you were unavailable on the day of the trial.

Why not just leave the adjournment in place and wait for another trial date?

Dean

 

[Avango Courier]

Hi Dean,

Sorry I hadn't seen your reply earlier. You were spot-on with understanding everything, and in the end I've just let it play out the way it is.

I was contesting the order as this claim has already gone on for over 10 months now and the defendant has played game-after-game, lie-after-lie. So his request to adjourn was just another way to delay the issue.

I never found out what was in his letter to the court asking for the adjournment, but I've since heard that the defendant has gone on holiday this week, which seems a disgusting reason to delay a small business the right to a day in court to try and recover the money it's owed.

The court had already set a new hearing date well into 2020, so I'm currently trying to keep the lines of communication open and civil between myself and the defendant so that we might get a conclusion sooner rather than (much) later.

Stu

 

[Big G]

Hi Avango,

If the Defendant had booked the holiday in between the time that the Directions Questionnaires were completed and the time that the hearing was scheduled then the Court should accept his request.

It is very frustrating but is important that the parties are available to attend the hearing. I would not suggest that you apply to set aside the adjournment unless you are able to prove that the Defendant has misled the Court or that they booked the holiday after the hearing was scheduled.