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How to object to N244 application to set aside judgement, Not motoring related
Irksome
post Wed, 17 Jul 2019 - 14:02
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Could anbody advise me of the correct format to file an objection to a N244 application to set aside a judgment? I succesfully pursued a company who failed to provide a satisfactory service via Moneyclaim online and obtained a judgment. I then tried to get them to pay, at which point they filed a N244 application and that's been transferred to my local court. The N244 fee was more than the value of the judgment!

I sent a letter before action to which I had no reply, the LBA contained the recommended CPR reference

CODE
I refer you to the Practice Direction on pre-action conduct under the Civil Procedure Rules, and in particular to paragraphs 13-16 which set out the sanctions the court may impose if you fail to comply with the Practice Direction.


I then filed the claim, and the claim went unanswered and so I applied for a default judgement which was granted.

The LBA and claim was served on the companies registered office address, which is the same address as they have used in their N244 application. Their application to set aside contains a basic defence to the original claim circumstances but nothing about the letter before action not being received, nor anything to suggest they weren't served by the court.

I've received a notice from the court today saying that the judge has ordered a 20 minute hearing at the first opportunity, but no date for that yet.


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post Wed, 17 Jul 2019 - 14:02
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The Rookie
post Wed, 17 Jul 2019 - 14:18
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What reasons have they given for requesting the set aside?
What defence have they submitted?

The logical challenges are against the reason for requesting it (didn't get the claim form, forgot to reply etc.) or to show that the defence has no realistic chance of success.

The MCOL guide doesn't appear tpo require you to submit anything in writing or a form to use for it for contesting a set-aside.
https://assets.publishing.service.gov.uk/go...-user-guide.pdf


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Irksome
post Wed, 17 Jul 2019 - 15:18
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They have given no reason for the set aside, what they have submitted is effectively a defence to the original claim. The only thing related to the the N244 application that appears relevant is one sentance stating ' Application to set aside judgment ' then a statement of fact that is effectively a defence to the original claim but with no mention of my letter before action and no mention of the original claim. They don't admit receiving the LBA or claim, they don't deny receiving the LBA or claim, they make no reference to them - its just an explanation of their side of the disagreement as to whether they performed a service (end of tenancy clean that wasn't done to a satisfactory standard) that occurred over a year ago.

I've drafted the following for the Court Manager (the claim was made in my wife's name as she organised this)

QUOTE
Dear Sir / Madam,

I write with reference to the N244 application to set aside judgement in this case. I wish to oppose the application on the basis that the application itself has no merit. All parts of rule 12.3(1), rule 12.3(2) and rule 12.3(3) were satisfied and no part of the claim has been satisfied.

The defendant has not put forward any explanation for their failure to respond to the Letter before Action (served 3rd May 2019) nor their failure to respond/defend to the claim served by the County Court Business Centre. The Letter before Action and the Claim itself were both served on the defendants Registered Office which is the address the defendant has specified on this application.

I enclose a copies of the Letter before Claim and proof of postage. I am happy to attend a hearing if the Court so requires; I am however a full-time mother of three young children so would need to make child-care arrangements if a hearing is to take place during the school holidays.


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southpaw82
post Wed, 17 Jul 2019 - 16:16
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Presuming that the claim form was served properly then the application to set aside the default judgment will be made under CPR 13.3, which says:

QUOTE
(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –
(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why –
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.

(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.


The defendant will have to show that they have “a real prospect of successfully defending the claim”. This is more than a defence that is “arguable”. You should, therefore, concentrate on showing why they do not have such a real prospect.

You should also concentrate on whether they have acted promptly - that will be a matter of fact. What does their evidence say about it?

An application to set aside a default judgment is an application for relief from sanctions under CPR3.9, so the considerations in Denton v T H White will apply.

In my view, you should (a) attack their prospects of success, (b) depending on the evidence, attack their promptness, and © make submissions as to the Denton principles.


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cp8759
post Wed, 17 Jul 2019 - 21:33
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I think you need to read up a bit on this stuff, this is a good place to start: https://www.civillitigationbrief.com/2017/0...t-be-explained/

If your wife is the claimant you can draft documents, but she must submit them to the court and you cannot speak on her behalf in court unless you attend with her as a McKenzie friend, and the court specifically grants you a right of audience (which she must ask for and obtain before you say a word).


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Irksome
post Thu, 18 Jul 2019 - 11:21
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Thank you Southpaw, They've been very prompt in making the N244 application so I dont think I have an angle there. As for making submissions with regard to the Denton principles, well I've read a couple of summaries and I'm afraid I still don't understand them :-)

I shall however redraft and add a paragraph explaining why they have no real prospect of succesfully defending the claim.

Thank you cp ... that link makes it clear to me. I was aware that my wife would have to ask permission for me to be granted a right of audience.


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Irksome
post Thu, 18 Jul 2019 - 12:15
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Does this seem better to you? I'm trying to keep it concise and without waffle ... it seems the Redbourn case is a perfect one to cite - not quite sure how I am supposed to do this?

QUOTE
Dear Sir / Madam,

I write with reference to the N244 application to set aside judgement in this case. I wish to oppose the application on the basis that the application itself has no merit. All parts of rule 12.3(1), rule 12.3(2) and rule 12.3(3) were satisfied and no part of the claim has been satisfied.

I submit that the defendant has no real prospect of successfully defending the claim. The defendant was employed to provide a professional end of tenancy cleaning service for a property. The defendant in this application suggest ways in which their failures to perform the duties could have been subsequently addressed, they do not however contest that they failed to perform the service for which they were employed and nor do they disagree with the following statement of a professional inventory clerk

‘the cleaning was well below the standard required for me to sign off on it as being to a professional standard’

The defendant has not put forward any explanation, let alone excuse, for their failure to respond to the Letter before Action (served 3rd May 2019) nor their failure to respond to or defend the claim served by the County Court Business Centre. The Letter before Action and the Claim itself were both served on the defendants Registered Office which is the address the defendant has specified on this application. The defendant allowed judgement in default and the defendant has not made out a case to be granted relief from sanctions Redbourn Group Ltd -v- Fairgate Development Limited [2017] EWHC 1223 (TCC)

I enclose copies of the Letter before Claim and proof of postage. I am happy to attend a hearing if the Court so requires; I am however a full-time mother of three young children so would need to make child-care arrangements if a hearing is to take place during the school holidays.


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cp8759
post Thu, 18 Jul 2019 - 12:51
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As sp says, the leading authority for sanctions relief is Denton so you should refer to that case, it might be a good idea to read it first: https://www.bailii.org/ew/cases/EWCA/Civ/2014/906.html

If you have a look on civillitigationbrief there's literally dozens of posts that deal with the principles that apply to relief from sanctions, I suggest you get your head round them.

The issue of promptness arises because they failed to answer both the letter before claim and the claim form, so they would need to show they had a good reason for not responding. While you can refer to other cases such as Redbourn, but the judge is bound to know what you're talking about if you refer to the Denton case and the principles in question remain the Denton principles.

Also if you want to present evidence of fact (i.e. that you sent the letter before action, that you did not receive a reply and so on - there are all matters of fact), this should normally be done in a witness statement that needs to be correctly formatted and endorsed by a statement of truth, see https://www.justice.gov.uk/courts/procedure..._part32#witness
If the claim was allocated to the small claims track this might not be strictly necessary, but personally I'd do it anyway.


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southpaw82
post Thu, 18 Jul 2019 - 15:08
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Briefly (and it is brief) -

Denton principles:

1. The seriousness and significance of the breach.

In this case there has been a wholesale failure to comply with the requirement to file and acknowledgment of service or a defence. That is serious and significant, not least in that it is a total failure to comply with a rule as well as preventing the case being disposed of justly.

2. The reason for the breach.

I have no idea what they say is the reason.

3. The overall circumstances.

You have a regularly obtained default judgment that the defendant is trying to deprive you of. They have no reasonable prospect of defending the claim. You should not be put to the expense and time of further litigating this matter.


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Irksome
post Thu, 18 Jul 2019 - 20:42
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Thank you - that makes a lot of sense.


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