Legal definition of documents 'served' and 'filed'

Discussion in 'Legal' started by flerger, Apr 14, 2015.

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  1. flerger

    flerger UKBF Newcomer Free Member

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    Hi,

    I have a received default judgement in a claim against a former business partner after he failed to file a defence, he is now attempting to have the judgement set aside on the grounds that a defence was filed as it was 'deemed served' as he claims it was posted to the court in time. (CPR 6.26)

    I wish to contest his application to have judgement set aside, I've read through the civil procedure rules and as far as I can see 6.26 and indeed the whole of section 6 regarding service is intended to apply to the service of claims (and other relevant documents) to other relevant parties in a claim (defendants, claimants, or their legal advisors) and not 'filing' of documents with the court. The problem I have is that I can't pinpoint any actual legal reference to the scope or definition of 'service' or 'serving' that I can use to this extend.

    Could any legal experts point me towards a resource/definition, that can be quoted and used in court, that clarifies that 'service' applies to documents delivered to another party or indeed that 'filed' documents are those that have been received and processed by the court.

    Thanks
     
    Posted: Apr 14, 2015 By: flerger Member since: Apr 14, 2015
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  2. The Sheriffs Office

    The Sheriffs Office UKBF Regular Full Member

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    I haven't got the case law to hand but usually anything sent by Royal Mail is deemed served a few days later.
     
    Posted: Apr 14, 2015 By: The Sheriffs Office Member since: Jan 19, 2010
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  3. flerger

    flerger UKBF Newcomer Free Member

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    Hi, thanks for your quick reply... Yep I understand that, but this was a defence being 'filed' with the court, not a claim/document being 'served' on a claimant/defendant and the rules regarding service are not relevant.

    Service_of_process on wikipedia (sorry, I can't post links) gives a definition but unfortunately I can't quote wikipedia in court. :\
     
    Posted: Apr 14, 2015 By: flerger Member since: Apr 14, 2015
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  4. darkest-pro

    darkest-pro Banned

    50 2
    See this 'set aside' nonsense all the time. You've already won bcos the never put in a defense, and District or Circuit Judge has awarded it to you, so he can wack in all the claims he likes, wont do him any good.

    Theres a great vid where 2 hippy lookalikes got served a warrant of execution by the Court to pay Council Tax, so it went to Court, they lost and wasted time arguing etc, upshot was the guy attended local Police Station to serve an affidavit on the Station/staff - basically being distruptive as possible as it aided their campaign - so one of the guys got arrested on an outstanding warrant for non-payment of fine and got put in a cell for 4 hours, and up in court next day lol.




    You must watch the series of videos on their channel to get the full story - its hilarious watching these debtors think they'll beat the system.
     
    Posted: Apr 14, 2015 By: darkest-pro Member since: Mar 30, 2015
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  5. flerger

    flerger UKBF Newcomer Free Member

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    I'm afraid to say he can apply to have the judgement set aside and the Civil Procedure Rules (Part 13) list certain circumstances under which this can be done.
     
    Posted: Apr 14, 2015 By: flerger Member since: Apr 14, 2015
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  6. smallclaimsassistance

    smallclaimsassistance UKBF Enthusiast Full Member - Verified Business

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    His terminology was wrong, but I am sure that his application will succeed.

    He is wrong to say that, in making sure his defence was "posted to the court in time", it was deemed served. "Service" means sending to a party (or non party). "Filing" means sending to the court.

    That however, for the purposes of this, is incidental. If he can convincingly argue that he sent his defence to the court, the court is unlikely to allow the judgement to stand, especially given the pressure courts have been under over the last couple of years, which has not improved their service (the other type of service!). Under CPR 12.3(1)a if the court finds that the defence was filed, they MUST set aside the defence, regardless of any other criteria.

    Also, as you have identified, all he has to establish in any event is to prove that there is an arguable defence to your claim, and judgement will be set aside.

    I'd be happy to have a look at the papers if you need some advice. With a badly worded application, you could win (in fact I defeated an application in the same circumstances about a month ago).

    Best wishes

    Dean
     
    Posted: Apr 14, 2015 By: smallclaimsassistance Member since: Jan 7, 2015
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  7. flerger

    flerger UKBF Newcomer Free Member

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    Hi Dean,

    Thanks for your reply which is very informed and helpful. I agree that his application will probably be granted, it requests judgement be set aside as the conditions of 12.3(2) (Not 12.3(1)a as acknowledgement of service had been filed) were not satisfied or failing that under 13.3(a).

    I want to argue that the conditions of 12.3(2) WERE satisfied as, regardless of whether the defence was posted, it had not been filed by the court when I appled for judgement. This is where I feel the legal definition of 'served' and 'filed' will be of assistance to me.

    The other problem here is that I have also read that in cases where judgement is set aside under 13.2(b) the claimaint is responsible for the defendants costs. This seems unfair that I should possibly be held liable when I was following the correct procedure and there was no defence on file when I applied for judgement and therefore me the conditions of 12.3(2).

    The defence was served on me although I can't remember when or whether it was within time however this still doesn't change the fact that it wasn't filed with the court. If it makes any difference the defence is also incorrectly dated in December instead of November.

    I would love for you to have a look at the application but the hearing is tomorrow :(
     
    Posted: Apr 14, 2015 By: flerger Member since: Apr 14, 2015
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  8. smallclaimsassistance

    smallclaimsassistance UKBF Enthusiast Full Member - Verified Business

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    Oops. Not to worry. The bottom line is that judgement is almost certainly going to be set aside. Regardless of whether the judgement beat the defence or vice versa, the unofficial practice of courts is that defences always take precedence over judgements. In other words, your judgement would go into the backlog (usually a week or two) and if the defence is filed after your judgement request, but before judgement is actually entered, the defence stands. You won't find this in the CPR, but it's standard court practice.

    As far as costs are concerned, provided you haven't been unreasonable, you shouldn't have to pay their costs. The court may not like the fact that you applied for judgement even though you had received the defence, however (regardless of whether it was filed). My guess however is judgement will be set aside with no order for costs against you.

    I wouldn't worry about definitions of "service" and "filing". They won't help you here.

    Best of luck and let me know how you get on.

    Dean
     
    Posted: Apr 14, 2015 By: smallclaimsassistance Member since: Jan 7, 2015
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  9. flerger

    flerger UKBF Newcomer Free Member

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    Thanks, I'll let you know the outcome.

    Due to various other problems I didn't actually file for judgement until 3 months after the deadline for filing defence had passed at which point the defence had still not been filed so although I had received a copy of the defence I didn't see what else I could do to progress the situation.

    What I meant about the error in the date was that the defence was allegedly posted in November (on the last date possible for it to be received in time) but is actually signed/dated by the defendant in December. Possibly a genuine mistake when signing but hopefully it will make things look worse for the defendant.
     
    Posted: Apr 14, 2015 By: flerger Member since: Apr 14, 2015
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  10. Newchodge

    Newchodge UKBF Big Shot Free Member

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    Just a small pedantic point. the defence is not filed by the court, it is filed with (or at) the court. The court does not have to do anything with it for it to have been filed.
     
    Posted: Apr 14, 2015 By: Newchodge Member since: Nov 8, 2012
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  11. flerger

    flerger UKBF Newcomer Free Member

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    Duly noted. It seems that the whole system is somewhat open to abuse of deadlines if anyone can simply miss them and then later claim that they had in fact submitted documents.
     
    Posted: Apr 14, 2015 By: flerger Member since: Apr 14, 2015
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  12. smallclaimsassistance

    smallclaimsassistance UKBF Enthusiast Full Member - Verified Business

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    Three months is certainly a long time, but I'm afraid the court view would still be that if you'd received the defence but the court hadn't, they would almost certainly not have given you judgement. The signing date issue is certainly worth flagging up, but I think the court will probably set judgement aside. Good luck.
     
    Posted: Apr 15, 2015 By: smallclaimsassistance Member since: Jan 7, 2015
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  13. flerger

    flerger UKBF Newcomer Free Member

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    The judge concurred that the defence was not been filed however judgement was set aside, as expected, as there was an arguable defence. No costs were requested. Now on with the claim... Thanks again for your input Dean.
     
    Posted: Apr 15, 2015 By: flerger Member since: Apr 14, 2015
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  14. smallclaimsassistance

    smallclaimsassistance UKBF Enthusiast Full Member - Verified Business

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    No problem, and good luck.
     
    Posted: Apr 15, 2015 By: smallclaimsassistance Member since: Jan 7, 2015
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