Small claim against large hotel chain

Equaliser123

The Defendant will need to provide a Defence - or at least details of the defence. The Court must be satisfied that the Defence has a real prospect of succeeding as well.

The snag is that the application will, I believe, be heard in the Defendant's local County Court.

NeilF3485

Equaliser123 wrote: »

The Defendant will need to provide a Defence - or at least details of the defence. The Court must be satisfied that the Defence has a real prospect of succeeding as well.

The snag is that the application will, I believe, be heard in the Defendant's local County Court.

I sued an old landlord for non-return of rental deposit, got judgment by default, and just before I enforced he entered application to be set aside.

His application was granted even though his defence was "I entered a defence but put the wrong postage on so it got returned".

Apparently, ignorance is an excuse.

baker85

Well it's just funny that he's received everything else. Ah well, we will see. I'd like to know what his defence is seeing as though consumer rights are on our side. But knowing our luck that will mean nothing in court.

On the plus side, the hearing is in our local court.

Equaliser123

baker85 wrote: »

Well it's just funny that he's received everything else. Ah well, we will see. I'd like to know what his defence is seeing as though consumer rights are on our side. But knowing our luck that will mean nothing in court.

On the plus side, the hearing is in our local court.

Good that it is in your Court.

How long until the hearing? Are they having to travel far?

I would be tempted to ask them in advance for the basis on which their defence is being made and remind them that they are required pursuant to Part 13.3 of the Civil Procedure Rules to show that there is a real prospect of success.

Be prepared to ask the Court for leave to amend details of the Defendant in the event that you have the wrong entity.

If you can, ask the Court at hearing to provide its initial views on the case. In my experience a judge will often say something like "I don't particularly like the Defence but am prepared to allow it to be entered in order for the full case to be presented". This will often encourage the Defendant to settle.

Generally, Courts will be slow to refuse an application to set aside judgment on the basis that it is unjust for their case not to be heard before the Court.

Hope this helps.

baker85

We haven't received hearing details yet, just the letter advising that it has been passed to our local court. It's about 90 minutes to 2 hours away from the wedding venue, but that doesn't necessarily mean the manager lives out that way.

Can I just clarify - you would be tempted to ask the defendant what basis the defence is being made? MCOL did advise that we could ask the court or wait to see what is mentioned in the paperwork when it comes through.

Also, will this hearing just be for the defendant to state why he wants the judgement setting aside? Do we get any opportunity to present our side of events at all?

Thanks again for your help.

Equaliser123

baker85 wrote: »

We haven't received hearing details yet, just the letter advising that it has been passed to our local court. It's about 90 minutes to 2 hours away from the wedding venue, but that doesn't necessarily mean the manager lives out that way.

Can I just clarify - you would be temped to ask the defendant what basis the defence is being made? MCOL did advise that we could ask the court or wait to see what is mentioned in the paperwork when it comes through.

Also, will this hearing just be for the defendant to state why he wants the judgement setting aside? Do we get any opportunity to present our side of events at all?

Thanks again for your help.

What is the value of the claim by the way?

Yes, you will be provided with the opportunity to say that the defence does not have real prospects of success - the hearing will be, in effect, a very quick look at the facts. If the application is allowed (and very often they are) that doesn't mean to say that the Court will rule in favour of the Defendants but merely that it is prepared to hear their case.

Ask the Defendant and point the legal requirements. I would also point out (assuming that the value is not huge) that applying to set aside a judgment will inevitably involve them in costs which they are unlikely to be able to recover even if successful.

It may be that this is simply an attempt to clear a CCJ against them. If that is the case, then invite them to settle and, once payment is made, agree to consent to the set-aside.

baker85

The claim is for £500.

We used these two consumer rights paragraphs in our final letter to him but he still insisted he was in the right:

Non returnable pre-payments
43 When a consumer cancels a contract, s/he should not have to pay for something s/he has not received. This is also the case where the contract is terminated by the seller or supplier. Where the consumer causes cancellation, pre-payments should not be retained beyond what is reasonable to cover the seller or supplier’s genuine losses and costs. Terms which seek to recover sums in excess of these amounts are at risk of being considered unfair.

Hidden terms
53 A consumer should always have an opportunity to read and understand the terms of her/his contract with the seller or supplier before s/he is bound by them. Any term which requires her/him to accept conditions s/he has not had an opportunity to read and understand is likely to be unfair.

Do you think we stand a chance by using these as an example as to why things should go in our favour? The hidden terms is more to do with the fact that he never provided us with a contract or terms and conditions. We were also advised by a solicitor that as we have it confirmed in an email that no expense had been incurred by him on our behalf, holding on to our deposit is a penalty clause which can be considered illegal.

He won't be applying to set aside the judgement to clear a CCJ, he'll be doing this because he does not want to refund our money and I'm willing to bet that he'll pull out all the stops to try and get things to go his way!

arcon5

The judge will already know about the two points you mention, to refer to them in your claim but don't go on to explain to a judge what they mean.

Although it's hard for anybody to determine whether they are valid arguments without knowing the background of the case.

Although if the claim has been made against the wrong entity (as another member confirmed)... i'm a) not sure why they are bothering defending and b) don't see how you can enforce it afterwards for the reasons already discussed.

baker85

Well if we had definitely made the claim against the wrong entity, would he be bothering to defend it now? I just think something would have been flagged sooner. I have seen other instances where claimants have had everything returned to them for not having entered the right details.

unholyangel

OP have you posted on this forums about this before? Or perhaps your other half has?

https://forums.moneysavingexpert.com/discussion/3872995

Same figure (£500) and sounds like exact same circumstances.