The defendant submitted an acknowledgement of service but no defence in response to the claim form pack sent by the court.
The defendant fails on all the criteria for a successful application to stay enforcement and to set aside judgement (no evidence submitted with application, no grounds).
The issue needing total and definitive clarity is whether the application will automatically succeed despite the above because the claimant did not record the certificate of service when the particulars of claim were posted privately by the claimant after the court processing the claim. The claim form gave details of claim and indicated that particulars of claim were to follow, the claim being otherwise completely processed by the court. I am not clear whether the court process means that a certificate of service is not needed or whether the later submission of the particulars of claim require a recorded certificate of service, and if so does this automatically mean that the application will succeed despite being flawed in every other respect. If so, are there any remedies?
Part 13 of the CPR provides that the court may set aside judgement where the defendant has a real prospect of successfully defending the claim or it appears to the court that there is some other good reason it should set aside judgement.
Part 13 therefore provides a judge with the discretion whether to allow a set aside or not. The direction provides that in considering the matter the judge must have regard to whether the person seeking to set aside the judgment made an application to do so promptly.
The decision would predominantly turn on what evidence the defendant can present showing that had he defended the matter he had a reasonable prospect of success and the conduct of the defendant generally - i.e. whether he has a good excuse for not replying to the original court papers. If the judge considers that he could have easily dones so he may be disinclined to alow set aside even where the defendant can othewise satisfy the test of reasonable prospect of success above.
It will not automatically succeed by any means but judges are keen to enable defendants to have their day in court where possible providing that they can show reaonable prospects so it is a possibility.
Does the above answer all your questions or is there anything I can clarify or help with any further?
No. The question is simply about whethr the fact that the claimant `added` to the claim form by sending the `particulars of claim` at a later date will lead to the application being upheld on technical grounds.
The circumstances of the case are that the defendant will not be able to satisfy the court on any of the grounds described above
I understand that if the claimant serves the claim personally, ie not through the court, but without the form `certificate of service` being registered with the court, then a set aside will be granted autmoatically. In this case the court serviced the claim but the claimant later added the `particulars of claim` without a recorded certificate. In other words, part of the claim was served by the court and another part served privately. In these circumstances will the application be deemed successful on the technical point of part of the claim having been issued personally without certificate. I understand that if the whole claim had been issued personally without certificate of service, then the application would be successful whatever the other circumstances were. Does this apply if the part of the claim described above was done in this way?
I gave a summary of the claim with the amount claimed, on the front of the standard claim form (and as requested on that section of the form). On the other side of the form there is a section headed `particulars of claim` with an opion to leave blank, and delete the heading simply to leave `to follow`. This was done and the prticulars of claim were posted later, directly to the defendant.
Thanks. The POC was served on the defendant within 14 days and he does not deny receiving it. However there is no certificate of service and it is not recorded on the court file. Does this make a difference and must the judge take it into account - and is it an overriding technicality