Judgement for Claimant (in default) - BW Legal - Residential parking

pbizzle12

Thanks @Coupon-mad. Is there anyway to signify that I am making a 'without notice' application e.g. tick the 'without hearing' box in the N244 form? Or do I just tell the court that is what I am paying for? I've read around online and but can't find a clear answer on this.

Amended draft order as below - based on the draft @LDast kindly helped prepare - any thoughts/edits appreciated:

DRAFT ORDER

Before District Judge [] at the [Court]

UPON reading the Defendant’s application to set aside the default judgment and strike out the claim.

IT IS ORDERED THAT:

1. The default judgment entered against the Defendant on [date] is set aside pursuant to CPR 13.2 (or alternatively, CPR 13.3).

2. The claim is struck out in its entirety for failure to comply with CPR 16.4, specifically for the Claimant’s failure to file and serve fully particularised Particulars of Claim, including proper calculations of interest and compliance with statutory requirements.

Alternatively:

3. If the claim is not struck out, the Claimant shall file and serve, within 14 days of the date of this Order, fully compliant Particulars of Claim in accordance with CPR 16.4(2), including a detailed and precise breakdown of how statutory interest has been calculated for each parking charge notice (PCN).

4. Costs to be reserved.

5. Should the Claimant fail to comply with paragraph 3 of this Order, the claim will be struck out, and paragraph 4 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £119.

6. If the Claimant complies with paragraph 3, the Defendant shall have a further 14 days from service of the fully particularised claim to file and serve an amended Defence.

7. In the event that the Claimant serves a Notice of Discontinuance prior to this hearing, the Claimant shall remain liable for the Defendant’s costs incurred in connection with this application, pursuant to CPR 38.6(1) and r.27.14(2)(dg) on the grounds of the Claimant’s unreasonable conduct.

8. All enforcement be put on hold pending the outcome of the application.

Dated:

I will search forum again for Denton references to include in WS.

Coupon-mad

That's good.

Is there anyway to signify that I am making a 'without notice' application e.g. tick the 'without hearing' box in the N244 form?

Yes tick that box and state what your application is, in your covering email and when paying the £119.

Make sure your N244 'what order are you asking the court to make and why?' refers to the attached draft order and says this is because there was no breach of an order; the case was already defended and there was no obligation upon the Defendant to amend the defence.

Re Denton, say things like this:

The court is required to consider all the circumstances of the case, in order to deal justly with an application effectively asking for relief from sanctions - ref: Denton v TH White Ltd [2014] EWCA Civ 906 (04 July 2014).

In Denton, the court set out a three-stage test covering the seriousness of the breach, why it occurred, and any other relevant factors. The Court of Appeal has confirmed that the approach in Denton applies in the context of setting aside a judgment in default: FXF v English Karate Federation [2023] EWCA Civ 891. The court must undertake a holistic evaluation at the third stage of the Denton test, taking all the circumstances into consideration. 

The Defendant cannot be blamed for failure to respond to the claim because they had already defended this claim and were neither required nor 'so advised' to amend the defence. Further, the Defendant has a real prospect of success.

pbizzle12

Thanks again @Coupon-mad - I built that into my WS. I've now submitted N244 + WS + DO + Evidence to the court and will call the court tomorrow to make payment for the fee. 

I'll post again here once I am "so advised" of a response thereto...

pbizzle12

Good morning all - some good news... judgement was set aside! Thanks again for everyone's help.

A hearing has now been scheduled in a back to back list (tandem sitting). Unfortunately it is on a date when I am on holiday so I will need to apply for this to be rescheduled. Does anyone have any experience or insight with this? I.e. is it as simple as writing to the Court and asking for new date, or is there an admin fee to be paid.

Coupon-mad

Oh no... you should have mentioned your holiday in your application bundle and made sure they avoided those dates.

Yes there is another application fee - £119 - UNLESS you can get the Claimants to agree to the change of date. Try that politely first because we believe if both parties consent then no application is needed.

pbizzle12

Thanks Coupon. I will write to them to seek consent. How long do you think I should give them to respond? Noting that deadline for submitting statements and documents for the hearing is 12 November, and I don't want to be seen by the court as leaving this late to reschedule.

Presumably I can also include a statement to say that the cost of any application will be included in those costs I will seek to recover so in their interests to consent to cheapest option?

I have drafted the below with a view to getting a response by Friday this week - please let me know any thoughts: 

PARKING AND PROPERTY MANAGEMENT LTD (THE ‘CLAIMANT’)

VS

[ ] (THE ‘DEFENDANT’)

Claim Number:[ ]

DATE: [ ] November 2024

To whom it may concern,

This is an invitation to your client Parking and Property Management Ltd to jointly consent to an application to the Court to reschedule the hearing scheduled on the [date] at [time] at the [court address] in respect of claim [ ].

As you will have noted, the previous Judgement in this claim was set aside as a result of my application and a small claim final hearing scheduled at the above date, time and location.

For personal reasons I am unavailable to attend at date and time scheduled and an application must be made to the Court to request an alternate date for the hearing.

In view of the foregoing, the wrong that the Claimant has done to me and to resolve this claim in a fair manner, I invite the Claimant to consent to an application to the Court to reschedule the hearing, with the Claimant paying the court fees and no order as to costs.

Please respond to the above offer as soon as possible so that an application can be made in good and reasonable time. To give you a reasonable time to take instructions, I am willing to defer making a unilateral application to reschedule until 4pm on [ ] November 2024. If no consent has been received by that time, I intend to apply to the Court unilaterally for the hearing date to be rescheduled and the costs of the application for doing so will be included in the costs I will seek to be awarded against the Claimant.

Please respond by immediate return.

Yours faithfully

[ ]

Coupon-mad

No that makes no sense at all and is not suitable.

Why on earth would they pay your application fee for a date that is your problem (not theirs)?  And I said in my reply that you are meant to be asking them in order to avoid having to make/pay for an application.

I'm afraid you certainly will be seen by the court as leaving this late to reschedule.  I don't understand why you didn't mention your holiday date on the fresh N180? This is a huge problem.

pbizzle12

There was no fresh N180 to complete, hence nowhere to mention a holiday, otherwise I would have mentioned it. I completed the N244 application to have the judgement set aside to which the Court replied that judgement had been set aside and a hearing date scheduled, and a fresh witness statement is to be submitted. There is no ask for new or updated N180, defences etc to be provided. The initial N180 was done back in February 2024 before I had even booked the holiday. 

I struggle to see what else I could have done here to be honest. The process has dragged on for 12 months, in part due to unclear communications regarding submission of documents, and now the date picked for hearing is in the only week I cannot attend in person... I will do my best to ask super politely in my application and see how it goes.

pbizzle12

To update - I received a letter from legal reps offering a 25% discount to settle in advance of the court hearing.

I have also written to legal reps and they have given consent to adjourn the hearing date, which is good news.

Coupon-mad

Very good.  Forward that to the court and say both parties have agreed for the hearing date to be vacated and moved because one of the parties was unable to attend, so there is no need for a formal application to change the date and you await new hearing directions.

Copy in the solicitors.

This time, attach any unavailable dates plotted right through for the next 6 months at least, which is what you should have done when applying to set aside the order (or the holiday dates should have emailed to your court soon after, if the holiday was booked after the application went in).

That's what I meant by 'a fresh N180'. I knew the court hadn't asked for one but (knowing that the lost n180 had only a set of old dates on it) really you should have anticipated this problem and completed a fresh (updated dates) one proactively, to prevent all this.

Anyway, too late now and hopefully with consent of both parties, the court won't argue. Act quickly.