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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 69258
Experience:  Over 5 years in practice
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What is a "Draft Order" in the form N244? Thank yo

Resolved Question:

What is a "Draft Order" in the form N244?
Thank you
Submitted: 1 year ago.
Category: Law
Expert:  Jo C. replied 1 year ago.

Thank you for your question. My name is ***** ***** I will try to help with this.

Looking at the previous question, it seems that this is an application to set aside a judgement.

A draft order simply the wording of the order that you are asking for. In the case of an application to set aside a judgement be like this (you may need to amend the wording slightly). Of course it depends whether you are Claimant or Defendant

“An order that the Judgement dated XXX of XXX County Court case number ***** we set aside on the basis that the Defendant has a reasonable defence”

you would need to change it to reflect your own particular circumstances. If it was because you haven’t received the papers you would add in “ and was not served with the necessary papers to enable the Defendant to submit a Defence in accordance with the statutory period”

There is no set wording. The court simply needs to know exactly what it is that you’re asking for and why.

Can I clarify anything for you?

Customer: replied 1 year ago.

I have explained that in the statement of the case that why I need to set aside the judgement. so shall I tick the box that I have attached draft Order?

2- Also can I in section 3 of the form where it asks what I am asking the court to make write: In accordance to CPR part 1 Rule 1, I am asking for the judgement to be set aside? for the reasons stated below:

3- There was a hearing but the court officers made a mistake and told us (we are defendant) there was no judge assigned and kept asking us to wait. However the hearing was on and the Claimant were presenting their case without us the defendants present. At the end when court officers realized their mistakes, they took us to the court room and we only had 30 minutes compare to the 2 hours that claimant had.

3- Their legal fees of £15000.00 is also ridiculously high for small claim and while I had already paid arrears by the time of claim was made.

Thank you

Expert:  Jo C. replied 1 year ago.

Put it on this form in addition because this form will be looked at in isolation.

I would not mention CPR I the application to set aside. You are at risk of the judge thinking that you’re trying to be “smart” . You do need to mention what you’re asking for just not the rule unless it’s an obscure rule in the middle of one of the many sections.

You would normally attach a witness statement in respect of the reasons why this happened. It would have actually been a good idea to ask for this setaside or adjournment at the time rather than let the matter go ahead and under these circumstances it would normally have been adjourned.

With regard to their legal fees, these are not normally awarded in the small claims court which is under £10,000 stop depending on the wording of the order you may be asking for two orders to be set aside, the judgement order on the costs order. What happened it seems is that they asked for them because you were not there, they were awarded them.

Customer: replied 1 year ago.

When the defendant (my partner) was called to the hearing room, he did protest and said there isn't enough time to explain the whole case while the claimant had 2 hours without him but the judge refused and totally relied on the claimant's counsel so he carried on although in my opinion the judge ordering to continue is cause for serious irregularities in the case, as equal time was not allocated and the claimant presented its case without defendant present due to court's error.

The Order states : upon hearing the 1st defendant in person, hearing Counsel for the claimant IT IS ORDERED THAT

" 1- The defence and counter claim be struck out as disclosing no course of action.

2-the defendants do pay the claimant's costs of action summarily assessed in the sum of £15000.00 within 28 days."

My question is,

a) I do not mind that the order of defense / to be struck off. so can I ask for the order of costs to set aside? or shall i just say I want to ask the court to set aside the Orders made at the hearing 9th of July 2014.

b) What else do I put in this section apart from my request for the Order to be set aside?

c) also I have asked the claimant to give me the copy of details and communications that they are charging for but they refused. Should they give it to me by law?

d) when there was a hearing is it still possible to set aside the Order due to my reasons?

Thank you

Expert:  Jo C. replied 1 year ago.

As the hearing went ahead anyway and the judge ignored the fact that you had not enough time to present your case t , the correct procedure is an appeal not set aside. You can only appeal if the judge made an error of law or an error of fact and in this case it is probably a little bit of both if you didn’t have time to present your case.

Customer: replied 1 year ago.

It is past the time that I could appeal. As I understand there is only 21 days after the judgement that one could appeal

However my reason for asking to set aside the judgement is mainly because of the court's officers error as although defendant was available in the court, they told him there was no hearing yet and he has to wait, while the hearing was going on without him. Can I not still do it? what is my next step?

Expert:  Jo C. replied 1 year ago.

This really is a difficult one. You do have 21 days to appeal after which you have to fly to have the appeal heard out of time. It in effect becomes to applications.

What you could do is apply to set it aside and then if it doesn’t get set aside, then appeal the decision not to set the judgement aside.

Customer: replied 1 year ago.

Sorry which decision I will then appeal? the decision that it was not set aside?

And now that the best option is applying to set aside, Shall I just ask to set aside the order because of the court's error and explain what happened at the hearing in addition to the excessive legal costs for small claim court?

Expert:  Jo C. replied 1 year ago.
Set aside the judgement and if that fails appeal the order not to set aside.

If the set a side works, the costs are set aside also.

The costs are to be assessed if not agreed which is then another application after this one if this one fails
Jo C., Barrister
Category: Law
Satisfied Customers: 69258
Experience: Over 5 years in practice
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