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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 10248
Experience:  I have been practising for 30 years.
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I want to appeal a recent case I lost, in my opinion the

Customer Question

I want to appeal a recent case I lost, in my opinion the Judge did not consider the factual evidence I presented. The directions questionnaire the defendant completed prior to the hearing suggested that he would be appearing in person, even to the point of providing dates when he could not appear. When I attended court for the hearing it turned out that he was represented by a legal advocate and I was not informed. Do I have grounds to apply for the order setting aside on these grounds?
Mr J Gledhill
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.

Was this Small Claims Court, fast or multitrack?

What was the evidence which you presented and widened the judge not consider it?

Did you not raise the issue of the other sides legal representation being a surprise, at the outset of the hearing?

Customer: replied 1 year ago.
photographic and actual statements of account. I didn't question the other sides representation.
Expert:  F E Smith replied 1 year ago.

Was this Small Claims Court, fast or multitrack?

Customer: replied 1 year ago.
small claims track.
Expert:  F E Smith replied 1 year ago.

The grounds for appeal are that the judge made an error of law or an error of fact.

If there is an error of fact (he didn’t consider the evidence) then you have grounds for appeal. However, just because he didn’t discuss it at length doesn’t necessarily mean he didn’t consider it. I am actually surprised that the other side used solicitors in the Small Claims Court because they would not recover those costs normally apart from a nominal amount.

Be aware that if you appeal lose, and the other side convince the judge that you have acted unreasonably in bringing this appeal, they may get court costs awarded against you which could be substantial so it depends how certain you are of winning your appeal and what the amount of the judgement was as to whether it’s worthwhile simply accepting the judgement as it was and moving on. Appeals from the Small Claims Court are not that common

Can I clarify anything else for you?

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Best wishes.