Witness statement for set-aside application

[Quavo]

Hi all,

I’m a claimant in a £2.5K money claim against a small limited company. After issuing the claim online via OCMC to the company’s registered office (also a director’s correspondence address), the defendant failed to respond, and I obtained a default judgment. After I emailed the defendant a payment request, the defendant respond claiming they didn’t receive the claim form and are applying to set it aside.

The defendant's set aside application:
1. requests to set aside the judgment *without hearing*.
2. admits that they don't attend the mailbox in their registered office (a residential property) due to ongoing refurbishment caused by an issue with sewage/flood (the property is not in a city that has been flooded any time recently).
3. includes a witness statement with false claims that they asked me to use an alternative address, including alleged in-person communication.

I want to submit my witness statement with facts showing that the defendant breached the Companies Act by not handling their mail at the registered office. I have evidence, including photos of the mailbox overflowing with letters, no ongoing refurbishment, etc)

However, I’m concerned about the application requesting the court to deal with it "without a hearing". Should I expect the court to request my witness statement? Is there a standard procedure to notify the court that I would like to submit a witness statement? Or should I file it proactively somehow without court directions, if it is possible at all?

Thank you for your help!

 

[Michael Loveridge]

There are two reasons they've applied on a `without hearing' basis. Firstly, they're hoping the judge will only hear their side of the story; and secondly the hearing fee is £119, as against £303 where there's a hearing.

However, an application to set judgment aside should never be dealt with on a `without hearing' basis, so the Court should tell him it needs a hearing and that he needs to pay the additional fee.

The case will also be transferred to either your or his local County Court (practice varies) for the hearing, and you'll be given notice of both the transfer and the hearing date.

It's not mandatory for the Claimant to file a witness statement in response to the application, but you can always do so on a voluntary basis.

 

[Gyumri]

However, I’m concerned about the application requesting the court to deal with it "without a hearing". Should I expect the court to request my witness statement?

I don't deal with the county court but a hearing on the papers will still enable you to file a witness statement setting out the facts supported by copies of the relevant documents.

A witness statement has to be signed and contain a statement of truth so use a template for that purpose to get the format right.

Witness Statements – Justice UK

www.justice.gov.uk

 

[Michael Loveridge]

I don't deal with the county court but a hearing on the papers will still enable you to file a witness statement setting out the facts supported by copies of the relevant documents.

A witness statement has to be signed and contain a statement of truth so use a template for that purpose to get the format right.

As I said in my last post, a SJA application would never be dealt with on the papers, so you don't even need to think about filing a witness statement until such time as you receive notice of a hearing date.

However, what you might consider, now you've seen a copy of the application, is writing to the court and suggesting that the application is so doomed to fail that it should be struck out under CPR rule 3.4 without setting it down for hearing.

 

[Gyumri]

As I said in my last post, a SJA application would never be dealt with on the papers, so you don't even need to think about filing a witness statement until such time as you receive notice of a hearing date.

However, what you might consider, now you've seen a copy of the application, is writing to the court and suggesting that the application is so doomed to fail that it should be struck out under CPR rule 3.4 without setting it down for hearing.

A letter to the court would not achieve anything - the OP needs to respond to the application by filing evidence.

What the OP should do is to appoint either a solicitor or barrister to oppose the application as the court rules and procedures are not easy for a lay person to follow.

 

[eteb3]

On what basis can the OP argue that the company had actual notice? (Not saying they can’t, I’m curios exactly how)

There was a case on here a while back where a limited director successfully argued company hadn’t had notice in very similar circumstances: judge set aside when they claimed they didn’t have access to the registered address ( I think on the papers alone, but less sure about that)

 

[Michael Loveridge]

On what basis can the OP argue that the company had actual notice? (Not saying they can’t, I’m curios exactly how)

The Claimant doesn't have to prove that the company had actual notice. Under the Civil Procedure Rules rule 6.3(2)(b) says that service of the claim form on a company can be effected by any of the methods of service permitted under the Companies Act 2006. By section 1139 Companies Act 2006 service at the registered office is deemed to have been effective, and the case of Jewelite Trading Ltd v Lord Mayor and Citizens of the City of Westminster [2020] EWHC 545 (Ch) confirms that service is effective even if the office was closed and there was nobody there.

Also, since March this year, section 86 of the Companies Act has been in force. This states that

(1) A company must ensure that its registered office is at all times at an appropriate address.

(2) An address is an “appropriate address” if, in the ordinary course of events—

(a) a document addressed to the company, and delivered there by hand or by post, would be expected to come to the attention of a person acting on behalf of the company, and

(b) the delivery of documents there is capable of being recorded by the obtaining of an acknowledgement of delivery.

(3) If a company fails, without reasonable excuse, to comply with this section an offence is committed by—

(a) the company, and

(b) every officer of the company who is in default.

Consequently, if the director has failed to comply with these requirements (which it would seem he has) then the court will have no sympathy for him, and I would be confident that the judge will decide that the claim form was effectively delivered to the company.

A letter to the court would not achieve anything - the OP needs to respond to the application by filing evidence.

What the OP should do is to appoint either a solicitor or barrister to oppose the application as the court rules and procedures are not easy for a lay person to follow.

This is not the case. I - and no doubt many others - have on several occasions sent an email to the court at the commencement of proceedings to draw the court's attention to the possibility of them striking the claim out under its case management powers, and achieved the desired result.

This is because when the claim is dealt with at the initial stages there is no involvement of a judge, but if the admin staff receive such an email they will usually ask a judge to look at the papers, and if he thinks there is no prospect of success he can and often will strike it out without a hearing.

 

[Quavo]

Thank you for all your responses; I greatly appreciate your help. As it appears that this matter may interest others, I will aim to contribute by posting the outcome once I have it.

In addition to the case given by Michael (thank you!), I found another potentially relevant case: Farrer & Co LLP v Meyer [2022] EWCA Civ 706. The judge stated, “Service effected at an address provided to Companies House by a director of a company is good service for the purposes of the CPR .. even if the individual [the company director] is not physically present in the jurisdiction”.

I have prepared a witness statement with supporting facts and exhibits to assist the court in applying s1139 and s1140 of the Companies Act and addressing the defendant's breach of s86. While I am confident the defendant breached s86, I am unsure whether this will lead the court to strike out the application or if it will consider a feasible defence, which as far as I know has a very low bar.

Another complication is that the court (CNBC) currently shows no record of the defendant’s application. A court officer confirmed by phone that the defendant made a payment a few weeks ago, but nothing else appears in the file. The officer mentioned they are running far behind with their processing (currently they are dealing with what was submitted in late August)

I am considering writing to the court asking to review and strike out the defendant's application, as was suggested in this thread. My understanding is that this would only make sense after the court staff have processed and filed the defendant’s application. I have a few quick questions about the letter:

Q1. Should the letter be sent to the CNBC or the local court? I believe the advice implied sending it to CNBC, but I want to confirm.

Q2. Is it sufficient to send the letter as an email, or should it be attached as a letter to the email?

Q3. Do I need to serve a copy of the letter to the defendant?