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Alex J.
Alex J., Solicitor
Category: Law
Satisfied Customers: 3497
Experience:  Solicitors 2 years plus PQE
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I am a Claimant in the case against a removal company which

Customer Question

I am a Claimant in the case against a removal company which caused damaged to my belongings in the process of moving my items. The case was held last Thursday. The Defendant did not attend the hearing but the judge said that I the Claimant knew the correct date hearing and so there was no reason claim not to ahead. The judge found in my favour and ordered the Defendant to pay £1,500 and costs. It was no surprise to me that the Defendant did not attend the hearing, thats the type of company they are. Anyway the judge said to be aware that the Defendant may try and set aside the judgement. I've just had a notice of hearing application through the post, what a surprise.. The Defendant as applied to the court to set aside the order saying they did not attend the hearing because they thought it on the 15.01.15 and not the 08.01.15. The hearing is in June 2015. Is there anything I can do? I've heard other people having similar problems with the Defendant, I am concerned by June they could have gone into liquidation etc. Further I don't understand on what basis they can just say they thought it was another date and be allowed to get away with this excuse. The judge agreed that they had breached the contract and considered their defence etc as they had submitted a trial bundle so how can they how be given another 5 months to get away without paying??!!
Submitted: 1 year ago.
Category: Law
Expert:  Alex J. replied 1 year ago.
Alex J. :

, Thank you question and welcome. My name is ***** ***** I will assist you.

Alex J. :

Have they asked you in the mean time not to take enforcement action?

Alex J. :

Unfortunately the threshold aside a default Judgment is very low - therefore they are entitled to set aside.

JACUSTOMER-7v0tja2i- :

AJ, thanks ,

Alex J. :

You could in the mean time consider taking enforcement action - have you considered applying warrant of execution and sending the bailiffs in, in the mean time?

JACUSTOMER-7v0tja2i- :

I have nothing from them. All I have received is the Notice of hearing and a copy of their application notice in the post this morning

JACUSTOMER-7v0tja2i- :

I thought in order to apply you had to had reasonable grounds case to be successful and obviously in this instance the judge has found in my favour and made it quite clear in his summary that they clearly breached contract

Alex J. :

, Thank you. You are precluded from taking enforcement action in the mean time.

Alex J. :

If the Judge did not believe their excuse the hearing they will probably get hammered .

JACUSTOMER-7v0tja2i- :

they haven't even given an excuse as to why they didn't attend, simply they thought it was a different date but the court papers made it clear what date the hearing was hence my attendance

Alex J. :

Make sure in the return hearing you highlight to the Judge their failure and poor excuse and ask him to order that the defendant pay all the costs hearing.

JACUSTOMER-7v0tja2i- :

so cannot I not take enforcement action against them Alex?

Alex J. :
If they go insolvent unfortunately that really is the death of any claim or hope of getting your money back as you will be an unsecured creditor.
Alex J. :

You can still enforce the claim as you have a Judgment.

Alex J. :

Have they have not actually asked you to confirm that you won't enforce.

Alex J. :

The only danger of taking enforcement action now is that the Judge may penalise you in costs if they think you have acted unreasonably

JACUSTOMER-7v0tja2i- :

No they haven't

JACUSTOMER-7v0tja2i- :

How would I be deemed to have acted unreasonably?

Alex J. :

That said if the Judge acknowledged that the reasoning attending the hearing was unreasonable and their defence had little wait then the risk of your conduct being criticised seems unlikely.

Alex J. :

They would only say you acted unreasonably if there really was an arguable case from the defence.

Alex J. :

In the mean time can I recommend you put pressure on them by complaining to Trading Standards as well


www.tradingstandards.gov.uk/


JACUSTOMER-7v0tja2i- :

Surely the fact that the judge said they had breached the contract etc (they even submitted a form relating to liability saying that I signed it and it wasn't even my name on the form) means I would not be seen to be acting unreasonably

Alex J. :

You should just bare in mind that they could also seek to suspend the enforcement action i.e if you send in the bailiffs, but I think this could be unlikely if the Judge has already criticised their conduct.

JACUSTOMER-7v0tja2i- :

Alex trading standards are a waste of time, I've dealt with them before, I just want the monies owed

Alex J. :

When it comes to the issue of costs and who acted reasonably, it is not about right or wrong, it is really about who has followed the Civil Procedure Rules and acted in the spirit of the proceedings.

Alex J. :

I know Trading Standards are slow, but it is worth making the complaint at least to stop them in the future and bring their conduct to the attention of the authorities.

JACUSTOMER-7v0tja2i- :

So is there no option to appeal the hearing, is that set in stone? I feel the court hasn't read the case as if they had I cannot honesty see how they could have allowed their claim on the basis that they got the date wrong!

JACUSTOMER-7v0tja2i- :

I appreciate what you are saying and I will speak to them.

Alex J. :

In the mean time I would apply write fieri faces

Alex J. :

*writ of fieri facias

Alex J. :

I am afraid there is no option to appeal. The threshold to have a default Judgment set aside is very low.

JACUSTOMER-7v0tja2i- :

What is the threshold Alex?

Alex J. :

The only thing you could do, I would strongly advise you ask a solicitor to do draft the papers is look to have the application Struck Out under Civil Procedure Rule 3.4(2)

JACUSTOMER-7v0tja2i- :

That's what I meant sorry, having an option to strike out. Can this be done along side the writ?

Alex J. :

I ll explain both points just so we don't get crossed wires:

JACUSTOMER-7v0tja2i- :

I will go to a local lawyer Monday, a commercial lawyer I assume. I could try and draft myself (practiced few years but a long time ago) but need to make sure it is totally accurate.

Alex J. :

This will take me a few mins so please do not be concerned if you do not hear from me right away.

Alex J. :

1. Threshold application to set aside is under CPR 13 - The defendant needs to show they either have a real prospect of defending the claim or the court decides there is some other reason why they should defend it. https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13

Alex J. :

While I appreciate this is vague the up shot of it is, it does not take much to convince a court to set aside a Judgment.

Alex J. :

I suspect as this company have already filed a defence their application may be unsuccessful - you are just unfortunate that the court has such a back log cases;

Alex J. :

2. Taking enforcement action can be done at the same time as applying to strike out their application notice to set aside.

Alex J. :

*strike out - not set aside sorry!!

JACUSTOMER-7v0tja2i- :

I read that and I just don't see how them saying they got the date wrong is acceptable. You are right, the backlog is crazy

Alex J. :

Your application to strike out their application to set aside can be done on the basis that they have already filed a defence and there are no reasonable grounds to have the judgment set aside.

JACUSTOMER-7v0tja2i- :

I don't expect them to be successful but it's just the time it takes to get to the hearing. They are just using this as a stalling exercise to pay as far as I'm concerned...

Alex J. :

My only concern would be that the court would view you are doing this to "jump the queue" that is why I would have a professional explore and draft any application .

JACUSTOMER-7v0tja2i- :

I understand your point, but in theory I could apply to have their application struck out and take enforcement action at the same time. At least if I am unsuccessful in the application they still have to pay the order, is that right?

JACUSTOMER-7v0tja2i- :

How does it work in terms of the enforcement Alex

Alex J. :

, Thank you. You have various enforcement options. In my opinion thought sending in the bailiffs is probably the only worthwhile one.

JACUSTOMER-7v0tja2i- :

I agree

Alex J. :

I cannot see the point of issuing a statutory demand as it it is just precursor to insolvency

JACUSTOMER-7v0tja2i- :

So i'm not barred from doing that because they have this application date in June, but do the courts still need to approve that action?

JACUSTOMER-7v0tja2i- :

I would go bailiff action

JACUSTOMER-7v0tja2i- :

Annoyed I didn't get this in motion the day after trial

JACUSTOMER-7v0tja2i- :

I knew they just wouldn't pay the sum ordered

Alex J. :

, Thank you. An kind of enforcement action is not barred because of an application to set aside.

Alex J. :

The only risk you run is that the action might be suspended or

JACUSTOMER-7v0tja2i- :

So the court has to approve it?

Alex J. :

if they have put you on notice not to take action otherwise they will hold you liable .

Alex J. :

A court has to approve all enforcement action whatever the situation - a write of fire facias is a warrant, you have to apply .

JACUSTOMER-7v0tja2i- :

I've had nothing from them..

JACUSTOMER-7v0tja2i- :

The notice re the application date is from the court

JACUSTOMER-7v0tja2i- :

So in reality me issuing a warrant is not likely to be approved because of the application

Alex J. :

, Thank you. No it is defendants to seek to be suspended.

Alex J. :

Not the court.

JACUSTOMER-7v0tja2i- :

Which they will do I'm sure

JACUSTOMER-7v0tja2i- :

They will seek to be suspended based on their application....

Alex J. :

, Thank you yes but the court may not agree with them - you can contest their application to suspend, but obviously that will result in another hearing.

Alex J. :

I am really sorry - but ultimately you are dealing with an unscrupulous trade. If they risk going insolvent this really will just be wasted time and good money after bad.

Alex J. :

You may just be better off waiting 5 months not putting your time in it (which you cannot get back) - and hoping they don't go insolvent.

JACUSTOMER-7v0tja2i- :

I find the system so unfair....

Alex J. :

There are just some unscrupulous people in the world and unfortunately while our court system is consistent and just, it is underfunded and over stretched.

JACUSTOMER-7v0tja2i- :

It's so clear they are dodgy and they had no reason not to attend court I managed to get the date right!

Alex J. :

Accordingly that makes things sometimes unfair.

JACUSTOMER-7v0tja2i- :

I know, I've met a lot go them

JACUSTOMER-7v0tja2i- :

I know the system is on its knees

Alex J. :

I know - it is reason you should pursue them with Trading Standards to stop them doing it again.

Alex J. :

I am sure you have thought of this, but if you paid by credit you could ask S.75 refund under the Consumer Credit Act?

JACUSTOMER-7v0tja2i- :

What's crazy is the system doesn't help itself, if anyone had properly read the details there would be no need hearing - wasting more time and money.... Anyhow that's another discussion!

JACUSTOMER-7v0tja2i- :

Alex I've perused other companies through them and the Insolvency government group but these guys are toothless

JACUSTOMER-7v0tja2i- :

I think I paid debit, I think I checked that at the time, but thanks me. The thing is that if they fail to turn up at the next hearing it's the same position. The issue that concerns me is that because the system is buckling the files aren't even read..... So even if I did the warrant it seems like the Defendant will get the benefit of the doubt again.....

Alex J. :

If they fail to turn up again then you will be well into a process with the bailiffs if you seek the warrant, and they will have no hope of having it set aside with a second application. It would be an abuse of process to deliberately miss the hearing in that manner in my opinion.

Alex J. :

I have to go off line briefly but will be back later. Please do not hesitate to post any further questions.
Kind regards AJ

JACUSTOMER-7v0tja2i- :

so it probably is best to get the warrant in motion and even if it is suspended on the defendants application at least it has been issued etc?

JACUSTOMER-7v0tja2i- :

Thats ok, I think I'm done

Alex J. :

I think that yes if you are worried they will go insolvent commence enforcement proceedings.

JACUSTOMER-7v0tja2i- :

I will see a lawyer Monday and get the papers drafted to strike out the application and the warrant issued

Alex J. :

Thank you. Please do not hesitate to contact me if I can assist further.

JACUSTOMER-7v0tja2i- :

Thanks Alex

Alex J. :

No problem. I wish you the best of luck.

Alex J. :

Kind regards AJ

Alex J. :

If you have a moment any feedback is gratefully received. If I can assist any further please do not hesitate to contact me. Kind regards AJ

Expert:  Alex J. replied 1 year ago.
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