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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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When arguing in support of a loss in a Civil Claim, what points

Customer Question

When arguing in support of a loss in a Civil Claim, what points of law can be argued by the defendant in terms of what action I should have taken to mitigate my loss?
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Hello my name is ***** ***** I will help you with this.
Briefly what is the claim about please?
Customer: replied 2 years ago.

Ok the defendant offered to pay if I was prepared to set aside judgement with a Tomlin Order in place to protect my position if he didn't. I declined this on the advice of a Solicitor.

The Defendant is now seeking to set aside the judgment on the basis that he could have paid if the judgment had been set aside and still could in such circumstances, and that further I have failed to take all reasonable steps to mitigate my loss.

Expert:  Ash replied 2 years ago.
And your defence against this is ...........? Does he contest the owes the money? What was date of Judgment and then offer to pay/set aside?
Customer: replied 2 years ago.

It's the truth - in terms of the original debt is that he is joining in a 3rd party who he claims is responsible for the debt.

Expert:  Ash replied 2 years ago.
Ok. But what date is the CCJ and then application to set aside?
Customer: replied 2 years ago.

well within date for a successful appeal - app date yesterday.

Expert:  Ash replied 2 years ago.
Ok, so why didnt you consent to set aside upon payment?
Customer: replied 2 years ago.

Because my Solicitor advised against it.

Expert:  Ash replied 2 years ago.
On what basis?
Customer: replied 2 years ago.

None was given.

Expert:  Ash replied 2 years ago.
I think you are going to struggle. Your Solicitor should be representing you are the hearing to explain the advice and why you should not accept the Tomlin Order.
I personally would have advised to accept it but made sure there was a condition in the Tomlin Order saying if it was not paid by (agreed date) Judgment could be entered forthwith and without notice
I think you are going to struggle, you could have accepted it and I dont think been any worse off. All you can really say is that you didnt not accept on advice from the Solicitor and relied on that.
Can I clarify anything for you about this today please?
Alex
Customer: replied 2 years ago.

So is there something I can read up about mitigating loss please?

Expert:  Ash replied 2 years ago.
https://en.wikipedia.org/wiki/Mitigation_(law)
http://www.drukker.co.uk/publications/reference/mitigation-loss/#.VYGWxBNViko
http://www.marcusturle.com/me/Home/Entries/2011/10/2_Mitigating_loss_under_English_Law_-_Bulkhaul_v_Rhodia_and_Linklaters_v_McAlpine.html
Does that help?
Alex
Ash and 2 other Law Specialists are ready to help you
Expert:  Ash replied 2 years ago.
Hi
I am just following up to see if there is anything else I can help with?
If this answers your question might I ask you to rate my answer before you go today please, the button should be at the bottom of the screen.
If you need more help please click reply.
Alex
Customer: replied 2 years ago.

Hi Alex,

I have already replied with 'excellent service'

Thank you.

Expert:  Ash replied 2 years ago.
You have thank you,.
Alex