Defendant filed a counter-claim, But no order was made by the court that I had to file a defence.

October868

Hello but yes this is a small-claims track claim (my claim is for just over £3,000).


Neither myself nor the defendant have any legal knowledge nor experience,
However she does have a McKenzie Friend (who is acting as her representative also outside of court | And so all my correspondence to her is instead sent directly to him/responded to by him).




In regards to the product itself, they were custom video clips which the defendant was commissioned to perform in & produce.
I was merely a customer at that time, who was ordering the product from the defendant, and so regarded by her as "a customer".


Her counterclaim claim simply is that whilst she admits to having been paid over £3,000 by me, but only having produced 1/2 the videos (upto a value of £1,500) before she decided to stop (and then told me in writing that she had spent all the money on her own life costs so couldn't afford to produce the rest)...
That ''IF" I had chosen to order dozens more videos from her in future, she would then of earnt £5,000+ from those hypothetical orders, and that sum is higher than the £1,500 which she owes me.
(That is the sole basis of her counterclaim)

October868

In regards to getting this 'scheduled judgement' set-aside though,
I have just phoned the court who've confirmed I will need to file an N244 form.


But so I'll have to post that + the £255 fee today.
(I did already write a letter for the judge too though explaining the reason why I didn't file a defence sooner, but so I will send that along with my N244 form).

davidmcn

October868 wrote: »

In regards to the product itself, they were custom video clips which the defendant was commissioned to perform in & produce

I suppose it depends on the nature of these bespoke videos, but it doesn't sound to me like a consumer product. Were they for use in the business which you then set up?

Like I said, "customer" != "consumer".

unholyangel

steampowered wrote: »

Is this in small claims track?

If so, I would expect the judge to exercise common sense at the hearing.

The reality is that judges tend to use common sense rather than the technicalities of the CPR at county court level, particularly in small claims track.

I'd agree with that. The earlier quoted ruling is more complex than made out - that it effectively related to a decision around limitation. In that, if they held the service effective, it would deprive the defendant of a time barred defence. Which would be a huge disadvantage to the other side. I'm not sure you can argue a set aside & hearing on the counterclaim is a huge disadvantage unless their claim has no basis in law and is bound to fail.

There were also issues that the LIP had been given a cert of service by the courts (for him to fill out) which held a statement/disclaimer that it had been served in accordance with CPRs and that the CPRs explicitly states service by email is only effective where the receiving party have indicated they accept service by email. So he could not - as he was claiming - plead ignorance of the rules. There were further points that the LIP had the opportunity for effective service but waited till the last minute to send by email, knowing full well not all solicitors accept service by email but relying on their website not explicitly stating they don't as proof they did.

Quite different from the situation the OP has presented.

waamo

As I said earlier this whole case seems very odd. I'm surprised the first set aside was granted especially as it was a business that was the defendant. A business is usually given less leeway than an individual, it shouldn't but as steampowered has said judges usually take a more common sense approach.

I'm wondering if there is more to this story?

October868

I also was shocked that the initial judgement was set aside.

As whilst the defendant claimed she wasn't aware of the claim initially (due to the address not being her own as that is unknown to me/when she became aware of it she thought it was fake (didn't bother to phone the court and check) for months, and only acknowledged it once the 3rd party debt-order...
She managed to play the 'clueless individual who knows nothing about legal processes' card, And thus managed to get the judgement set aside on the basis of that she claimed ''she had a reasonable prospect of defending the claim".


I have no reason to 'not disclose everything' in this forum, as after all it's an anonymous forum, where I am seeking help myself, and so ofcourse want to disclose everything so any help can cover 'every' base, rather than any element get missed out.

da_rule

unholyangel wrote: »

I'd agree with that. The earlier quoted ruling is more complex than made out - that it effectively related to a decision around limitation. In that, if they held the service effective, it would deprive the defendant of a time barred defence. Which would be a huge disadvantage to the other side. I'm not sure you can argue a set aside & hearing on the counterclaim is a huge disadvantage unless their claim has no basis in law and is bound to fail.

There were also issues that the LIP had been given a cert of service by the courts (for him to fill out) which held a statement/disclaimer that it had been served in accordance with CPRs and that the CPRs explicitly states service by email is only effective where the receiving party have indicated they accept service by email. So he could not - as he was claiming - plead ignorance of the rules. There were further points that the LIP had the opportunity for effective service but waited till the last minute to send by email, knowing full well not all solicitors accept service by email but relying on their website not explicitly stating they don't as proof they did.

Quite different from the situation the OP has presented.

From this there is obviously a good reason why the original judgment was set aside as service had not been correctly effected. This is therefore a situation where the court must set aside the default judgment.

Where service has been properly effected (as is the case regarding the counterclaim) the court may set aside the judgment because there is a real prospect of defence or some other good reason why. This is only a ‘may’ so the onus is on you, as the applicant, to evidence why it should be set aside.

In terms of formalities, yes the small claims track is more informal but the CPR still applies and the courts (including the County Court), especially following the Supreme Court ruling, are starting to apply them more stringently.

waamo

October868 wrote: »

I also was shocked that the initial judgement was set aside.

As whilst the defendant claimed she wasn't aware of the claim initially (due to the address not being her own as that is unknown to me/when she became aware of it she thought it was fake (didn't bother to phone the court and check) for months, and only acknowledged it once the 3rd party debt-order...
She managed to play the 'clueless individual who knows nothing about legal processes' card, And thus managed to get the judgement set aside on the basis of that she claimed ''she had a reasonable prospect of defending the claim".


I have no reason to 'not disclose everything' in this forum, as after all it's an anonymous forum, where I am seeking help myself, and so ofcourse want to disclose everything so any help can cover 'every' base, rather than any element get missed out.

Ahh you sent papers to "an address not being her own". What was the address you sent papers to? Was it a former address, a business address or what?

Did you send everything by post or did you email anything to them?

October868

Hello and thankyou for your reply.


In regards to the claim previously not being served to the correct address (as the defendant operates under a false name / doesn't disclose her address) I had to serve the claim to a business address which she can receive post at.
She admitted to receiving the claim there via post in August (so 2 weeks after it was issued by the court), but not responding to it until December (when the 3rd party debt order froze her money).
But so she did receive the order, failed to respond promptly, but managed to get it set aside still based on 'not knowing how the legal system works' and on her claiming she had a prospect of successfully defending the claim.


#


But yes in regards to my N244, I am explaining my reason for not having filed a defence to the counterclaim within 14-days as being due to me simply not having been aware of the requirement to do so (due to not having received any direction/order stating that I needed to).
I'm not seeking to use that as 'an excuse/defence', but simply use that as my reason which atleast will explain to the judge that I did have a legitimate & genuine reason, rather than simply 'ignoring a direction' because I was lazy.
I have also stated that I have always before complied on-time and in full with every single direction/order issued to me by the court, which shows that I would never intentionally not comply with a court requirement which I was aware of.



And in regards to my basis for requesting this 'scheduled default judgement' to be set aside, I am stating it on the basis that "I believe I have a strong prospect of defending the counterclaim successfully - Based on the fact that I've shown in my defence-statement & evidence that the core basis of the defendant's counterclaim is a violation of multiple regulations of the Consumer Rights Act".


I also hope that the fact that my defence statement to her counterclaim has 'already' been filed & served to both the defendant & the court, thus there would be no need for the court to delay the hearing date at since the statement has already been served, that that will work in my favour too.

da_rule

I thought from the other posts that you had commissioned this work for a commercial purpose? Therefore are you sure that the Consumer Rights Act applies.