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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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I entered a default judgement in my personal injury claim which

Customer Question

I entered a default judgement in my personal injury claim which was outside the limitation period.
THE DEFENDANTS ARE SAYING THEY WILL APPLY TO SET ASIDE JUDGMENT USING THE MERITS OF DEFENCE. iF THEY SUCEED MY CLAIM WOULD BE STRUCK OUT.
DURING NEGOTIATIONS THE DEFENDANTS PAID FOR DAMAMGE TO CAR AND ADMITTED THE ACCIDENT BUT FAILED TO PAY FOR THE INJURY.
wHAT STEPS SHOULD i TAKE,. sHOULD i WITHDRAW OR OPPOSING APPLICATION TO SET ASIDE AND ASK FOR EXTENSION OF TIME TO BRING CLAIM.
Submitted: 3 years ago.
Category: Law
Expert:  Ash replied 3 years ago.

AlexWatts2013 :

Hello my name is Alex and I will help you with this. Please note that I am a working Solicitor and may be on and offline as I have to attend Court and meet with clients, even at weekends. As such you may not get an instant response when you reply as this is not an ‘on demand’ live service, but rest assured I will be giving your question my immediate attention upon return

AlexWatts2013 :

Have they admitted liability in writing please?

JACUSTOMER-q44ls1gb- :

THE ADMITTED LIABILITY IN WRITING AND PAID FOR THE DAMAMGE TO THE CAR BUT NOT ADMITTING LIABILITY IN RESPECT OF PERSONAL INJURY ON THE BASIS IT WAS LOW IMPACT ACCIDENT

AlexWatts2013 :

I see. How much did you claim for personal injury? Did you file the claim or your Solicitors please?

JACUSTOMER-q44ls1gb- :

CLAIM LIMITED TO £5000 AND FILED BY ME

AlexWatts2013 :

Thank you. What I can say is that they can apply to set aside Judgment in default only if they can provide a realistic prospect to successfully defending the claim.

AlexWatts2013 :

If they can show that then Judgment will be set aside, but it does NOT mean that the claim is struck out.

AlexWatts2013 :

They are then allowed to file the defence to the claim, which is normally the draft attached to the application to set aside.

AlexWatts2013 :

But your claim will be live. You do not need to ask for an extension to bring a claim.

AlexWatts2013 :

You can consent to Judgment being set aside if you wish and then the Court can give directions about when they must file a defence.

AlexWatts2013 :

But I should tell you that any personal injury claim over £1000 is not a small claim. It would be a fast track trial which means it is in open Court and the rules of evidence apply.

AlexWatts2013 :

This would not be a small claims limit claim.

AlexWatts2013 :

Can I clarify anything for you about this? Alex

JACUSTOMER-q44ls1gb- :

THE OTHER SIDE FILED A DEFENCE BUT OUTSIDE THE TIME PERIOD. tHEIR DEFENCE IS THAT MY CLAIM WAS OUTSIDE THE THREE YEAR LIMITATION PERIOD. tHAT IS WHAT CONCERNS ME. iF THE APPLICATION TO SET ASIDE SUCEEDS THAN THEY WILL RELY ON TIME BARRED DEFENCE AND WHAT PROSPECT IS THERE FOR THE COURT TO ALLOW MY CLAIM TO PROCEED OUTSISDE THE LIMITATION PERIOD.

AlexWatts2013 :

I see. If you issued proceedings outside the 3 year period then yes this is out of time. In general, a Claimant (who is not suffering from a disability) has three years from the date of the incident or his date of knowledge, if later, in which issue proceedings. There are exceptions and the Court also has discretion to disapply the limitation period.

JACUSTOMER-q44ls1gb- :

BUT WILL THEY DO SO IN THIS CASE WHERE I DID SUFFER AN INJURY AND THERE IS A MEDICAL REPORT.

AlexWatts2013 :

Although Section 11 of the Limitation Act provides a three year time period within which a claim must be issued, Section 14.2 establishes that the period only commences once the Claimant is made aware of significance of this injury and has (subject to expert evidence), the requisite knowledge.

The decision was upheld on Appeal as it was found that albeit that the Claimant had only became aware that his injuries had intensified in 1996 (when further medical tests were conducted) he had not issued promptly. It was held that his cause of action had been established at that time, but he had issued too late and his claim was time barred.

AlexWatts2013 :

Therefore unless you can show that you only reasonably found out about the injury within 3 years then generally a Court is unlikely to grant discretion to bring a claim where it is out of time, UNLESS the Defendant agrees.

AlexWatts2013 :

I realise this may not be the answer you want and certainly not the one I want to give you, but I have a duty to give you honest advice.

JACUSTOMER-q44ls1gb- :

SHOULD i SETTLE BY WITHDRAWING THE JUDGEMENT AND CLAIM AND HOW CAN i AVOID ANY COSTS LIABILITY.

JACUSTOMER-q44ls1gb- :

aFTER ALL THE OTHER SIDE DID NOT FILE A DEFENCE WITHIN THE TIME PERIOD AND i ENTERED JUDGMENT.

AlexWatts2013 :

It is entirely a matter for you, I can not tell you what to do. But if you are outside the 3 years you are on shaky ground. I realise that the Defendant did not file a defence but they do have a realistic prospect of defending the claim and as long as they acted promptly, ie within 30 days of getting Judgment in default a Court is almost certain to grant their application.

JACUSTOMER-q44ls1gb- :

WITHDRAWING THE CLAIM IS IT BY SOME PRESCRIBED FORM AND WHAT WILL BE THE COST IMPLICATIONS

AlexWatts2013 :

If you withdraw a claim generally you are liable for the Defendants costs. But you need to ask if you withdraw that there be no order as to costs.

AlexWatts2013 :

Then they can apply to set aside, you can consent and as long as there is no order as to costs you can agree to discontinue the claim.

AlexWatts2013 :

Can I clarify anything for you?

JACUSTOMER-q44ls1gb- :

IF THEY APPLY TO SET ASIDE AND i CONSENT TO IT WITHDRAWING BEFORE THEY APPLY CAN THEY GET COSTS FOR THEIR APPLICATION

AlexWatts2013 :

They could yes.

AlexWatts2013 :

This is what you need to do: contact them and say you will agree to Judgment being set aside and the claim being discontinued if there is no order as to costs.

AlexWatts2013 :

Is there anything else you would like to clarify please?

AlexWatts2013 :

If this answers your question, please take a moment before you leave and rate my service, it only takes a second and is an important part of the process. Otherwise if you need more information or help then please click reply. Alex

Expert:  Ash replied 3 years ago.
Hi

I am just following up on this. Is there anything else I can help with? If so, please let me know.

Alex.

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