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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience:  Solicitor with 5+ years experience
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I am in a dispute with a finance company over a car loan. A

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I am in a dispute with a finance company over a car loan. A hearing was listed for yesterday but I was ill and unable to attend. I did in fact have two applications to be heard and in my absence the District Judge dismissed them as being totally without
merit. I know I can apply for the hearing to be re-listed but is the order which he made the usual result of non-attendance by one of the parties?
Submitted: 1 year ago.
Category: Law
Expert:  Ash replied 1 year ago.
Hello my name is ***** ***** I will help you.
Were they struck out or dismissed?
Customer: replied 1 year ago.
No they were dismissed as being totally without merit
Expert:  Ash replied 1 year ago.
Ok. Then you can apply to set aside but this is on form n244. You will have to pay a hearing fee of £155 unless you are entitled to fee remission.
You have 7 days to do this from service of the order.
Can I clarify anything for you about this today please?
Alex
Customer: replied 1 year ago.
I am already aware of the information you have given me but I wonder if I should read anything into the 'totally without merit' phrase. I am certain that one was not 'totally without merit' as it was an application to set aside an order emanating from an application made ex-parte. In that they made an application for an extension of time for the filing of an amended defence but as the deadline for the filing had already passed, under the Jackson reforms the only application they could make was Relief from Sanctions.
How can that be 'totally without merit'?
Expert:  Ash replied 1 year ago.
Totally without merit is hopeless. If there are 2 applications that are totally without merit then they can apply for a civil restraint order which means you need the courts permission.
The application for relief, that can only apply if there was a sanction. Even then they can make an oral application at court, the rules allow that. The leading case on relief is Mitchell and Denton.
Does that help?
Alex
Customer: replied 1 year ago.
I know but they were made in my absence
Customer: replied 1 year ago.
I am well aware of what they can do but as things stand no restraining order has been made against me and I am free to apply for a re-listing.
Expert:  Ash replied 1 year ago.
Yes. Which is why you have 7 days to set aside.
What else do you want to know?
Alex
Customer: replied 1 year ago.
Furthermore, Hallam Estates v Baker (2014) clarifies the position on applying for extensions of time and it sets out clearly that once a deadline for taking a step in the proceedings has past the only application which can be made is one of relief from sanctions
Expert:  Ash replied 1 year ago.
I agree you should set aside, if you look at the above. The cpr says if you don't attend then you can apply within 7 days. Otherwise you would have needed to appeal.
Does that clarify?
Alex
Customer: replied 1 year ago.
It clarifies but there appears to be no real reason for the 'totally without merit'. They made their application for an extension of time fully 14 days after the deadline for filing had past. Clearly the application should have been for relief from sanctions
Expert:  Ash replied 1 year ago.
I agree. But you don't know the reasons, you need a record for judgment. I agree it should have been an application for relief but only if there was a sanction with the original order.
Does that help?
Alex
Customer: replied 1 year ago.
What is the point of having a deadline if there is no sanction? No one would concern themselves with deadlines. The sanction must be that the amended defence be disallowed
Customer: replied 1 year ago.
Even in Mitchell there was no sanction set out in the court order which set the deadline but a sanction was imposed at a subsequent hearing for non-compliance.
The only other thing I need to know is if I have to file any evidence with my application to set aside
Expert:  Ash replied 1 year ago.
There must be a sanction, in Mitchell the court rules came into play which is thief own Sanction Ie court fees only. In your case there must have been an unless order. If there was not then it's not s relief from sanctions.
Does that clarify?
Alex
Customer: replied 1 year ago.
Yes I understand that. Do you think when I make my application to set aside I should withdraw that application?
Customer: replied 1 year ago.
Could I say I was intending to withdraw it to avoid the possibility of a restraining order being made against me?
Expert:  Ash replied 1 year ago.
No, because the Judge didnt make a restraining order so it cant be done in retrospect.
Alex
Customer: replied 1 year ago.
I have only one further question. In their witness statement they say that 'the extension of time will not prejudice the Defendant's position or that of the court's timetable. The hearing is listed for 8th October 2015. This affords all the parties to take stock within a window of several weeks before the hearing. By that I mean that the Defendant will still have over 8 weeks in which to consider the Reply and perhaps take legal advice'.
Given that August and to a lesser extent September are holiday periods was this not fanciful? The court did not make the order until 3rd September and I was on holiday from 25 August to 13 September. I then had to wait a few more days while the court sent me a copy of the application. By that time it had brought the hearing forward to 1st October. I really had not a clue as to what was going on
Expert:  Ash replied 1 year ago.
The fact it was a holiday period is not relevant, therefore I would not go into this point, its not your strongest.
Alex
Customer: replied 1 year ago.
They are claiming that the agreement is not subject to the Financial Services (Distance Marketing) Regulations 2004 because the agreement was not the subject of an organised distance sales scheme. However from my own research there is no definition of an organised distance sales scheme. Would know anything more about that?
Expert:  Ash replied 1 year ago.
Sadly about that no - your question was about relief etc.
Alex
Customer: replied 1 year ago.
Would you say it is foolish for an untrained person to try to handle his own litigation. I research quite thoroughly but there always appears to be banana skin somewhere.
Expert:  Ash replied 1 year ago.
No, there are many litigants in person. But you need to know the law and civil procedure.
Alex
Customer: replied 1 year ago.
Okay, well I think that is all here. You have been very helpful and I thank you very much
Expert:  Ash replied 1 year ago.
Thanks.
If this answers your question could I invite you rate my answer before you leave today.
If the system won’t let you please click reply.
Please bookmark my profile if you wish for future help: http://www.justanswer.co.uk/law/expert-alexwatts/
Ash, Solicitor
Category: Law
Satisfied Customers: 10916
Experience: Solicitor with 5+ years experience
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Customer: replied 1 year ago.
I have another question here. When I made my application to set aside their ex-parte order because I was outside of the 7 day time limit I asked for relief from sanctions but it appears I should simply have asked for permission to apply out of time. Is this right and is there anything I can do about it?
Expert:  Ash replied 1 year ago.
Yes apply out of time - nothing you can do about it now, but not to worry.
Alex
Customer: replied 1 year ago.
Do you mean I should amend my application notice
Expert:  Ash replied 1 year ago.
If its not been sent in then yes. Otherwise no
Alex
Customer: replied 1 year ago.
It's just that the thought occurred to me why should I apply yo the court for a sanction for non-compliance when there is already an application pending for their claim to be struck out and they know full well that if they don't comply with court order their claim will be struck out anyway. It makes no sense at all. They know full well the consequence of their failure to comply
Expert:  Ash replied 1 year ago.
I agree. But there should be a sanction first and then relief.
Alex
Customer: replied 1 year ago.
The sanction must surely be that they fully understand the consequences of their action but they are fully aware of that anyway
Expert:  Ash replied 1 year ago.
No, the Court must have implied a sanction for their to be relief, ie an unless order. If there was no sanction such as an unless order its not relief.
Alex
Customer: replied 1 year ago.
Given what I have said would you agree then that the application is totally without merit
Expert:  Ash replied 1 year ago.
If there was no unless order (sanction) then there can not be relief etc.
Alex
Customer: replied 1 year ago.
So you would agree that it is totally without merit
Expert:  Ash replied 1 year ago.
It appears so on the face of it.
Alex
Customer: replied 1 year ago.
It really does seem very easy for a litigant in person to make these kind of errors
Expert:  Ash replied 1 year ago.
Indeed it does, but sadly the rules are the rules.
Alex
Customer: replied 1 year ago.
The school of hard knocks!
Oaky, well thanks once again for your help
Expert:  Ash replied 1 year ago.
Happy to help.
Alex
Customer: replied 1 year ago.
I have made an application to set aside the order made n my absence. That is due to be heard on 9th December. At the hearing which I missed the court made an order that I return the car by 16 October and I was under the impression that everything was stayed over until that hearing. Much to my surprise an agent came this morning and I was forced to allow them to take the vehicle at least until the next hearing. I suppose I should have applied for a stay of execution. Is there anything I can do now to stay the order and have the car returned to me

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