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04/11/2006

Spitting feathers

Background. Another disrepair case against a private landlord. Another successful application for default judgement, granted about 6 months ago. Solid evidence. All the directions for quantum hearing complied with by us, to nil response from the landlord.

Three days ago, having served the trial bundle for the quantum hearing, we got a letter from the landlord’s newly appointed solicitor suggesting a deal may be possible. Yesterday, they finally responded to phone calls left and laid out the deal – we drop the disrepair claim, no costs, and they won’t make an application to set aside the default judgement.

Much laughter was had. Yes, there were substantial rent arrears (housing benefit screwing up again, surprise surprise), but these were in the process of being sorted. If the Defendant wanted to go for a set off against damages, fine. By the time this was sorted, HB should have been back paid. Damages were likely to be £5K plus and we already had costs orders up to default judgement.

No application was received prior to the hearing. We had done everything demanded by pre-action protocol and the CPR, and then some. Every damn letter to the landlord said ‘seek legal advice’. And my bundle was damn good.

He and his new solicitor turn up at Court, the solicitor says oops we haven’t had time to read the papers and by the way we’d like to make application to set aside the default judgement, but, although we were instructed a week ago, we haven’t had time.

Our Counsel goes through the history, points out that the Def has has every opportunity, has been told to get advice by us repeatedly and that no basis for a potentially successful application to set aside has been put forward. In addition, that the Def is unprepared is hardly the claimant’s fault. Every jot and tittle of the CPR and directions have been followed and to allow an adjournment would be to reward the Defendant for his late action and refusal to make a reasonable offer of settlement.

Result? The Court gave an adjournment so that the Defendant could prepare and, if advised, make an application to set aside default judgement. We got the costs of the abortive hearing.

Fucking hell. What is the point of the CPR if some shitty Defendant can rope in a solicitor at the last minute who will then plead unpreparedness? And then get an opportunity to start again from scratch, with all our pleadings in his hands, for filing a defence/counterclaim.

How is this not rewarding his inaction and penalising the claimant who has jumped through every pre-action and CPR hoop and followed every direction? What is the point of a default judgement?

I am furious, steamingly so. Naturally, any application to set aside will be bitterly opposed, but it had better not be heard by the same District Judge. I’ll bet the DJ owns a few rental properties.

Now clearly I am biased, having built this case brick by brick, but I can’t see what possible grounds of fairness, justice or procedure the Court could rely on to both give the opportunity, and virtually invite, the Defendant to try to set the claim back to square one. Sometimes, the court’s discretion is a bastard, particularly when it makes a mockery of the CPR. In the meantime, we are adjourned till sometime in January.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

2 Comments

  1. Tessa Shepperson

    You have my every sympathy. The Woolf reforms have been less than effective in some areas.

    Of course it couldn’t be because the Judge was happy to get the case off his list that morning could it?? My experience is that Judges are always less eager to hear a case than adjourn it.

    It is this sort of thing which has put me off litigation, leading me to look for alternative methods of earning an living (such as Landlord-Law).

    Reply
  2. Tessa Shepperson

    Following on from my earlier comment, you know I did actually once have a contentious will matter where I really busted a gut trying to get it before the court, failed miserably (more adjournments), and the poor old beneficiary died before we could resolve it. Sometimes it seems that getting anything done quickly via the courts is an impossiblity.

    Reply

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