Quick Law/court question for anyone in the know

JAMAL · 1 Apr 2009 at 20:47

To put it simple.....

We took someone to small claims court, they didn't bother putting a defense in and we win by default, they then goto a solicitor asking for a retrial which is now going to happen maybe after a hearing which is soon.

What are the chances of the person getting a retrial considering they didnt bother defending themselfs the first time?

Thanks

Rich_L · 1 Apr 2009 at 20:49

Depends entirely on their reasons, if they say they never got it they might let it be heard or if there is a significant enough point to be defended and they have a good reason they might get it set-aside

Burnsy2023 · 1 Apr 2009 at 20:50

Rich_L said:
Depends entirely on their reasons, if they say they never got it they might let it be heard or if there is a significant enough point to be defended and they have a good reason they might get it set-aside

Indeed, as far as I know, if they have a valid reason it may be looked at on individual merit.

JAMAL · 1 Apr 2009 at 20:51

It can be proven they knew about the case, numerous recorded signed for letters etc.. it was for the sale of something faulty, which is definetly faulty as we spent over £2k with a specialist proving it

Raymond Lin · 1 Apr 2009 at 20:52

It depends on a lot of reasons and circumstances.

The thing is that the Court in my experience will let them submit a Defence in most cases unless they are seriously disregarded the procedure without cause. The CPR allow the judge to allow the Defendant to submit a Defence out of time.

semi-pro waster · 1 Apr 2009 at 21:31

JAMAL said:
It can be proven they knew about the case, numerous recorded signed for letters etc.. it was for the sale of something faulty, which is definetly faulty as we spent over £2k with a specialist proving it

That sounds like quite a lot of money to spend given the small claims court limit is only £5k in England as I understand it (and it is less in Scotland).

Good luck with the retrial if it should go ahead and good luck in getting the money even if it doesn't.

Tingtangmakadingdong · 2 Apr 2009 at 00:23

I can shed some light regarding the technical reason why the judgement may be set aside.

The judge may use CPR 13.3(1), which is civil procedure rules, on ‘discretionary grounds’. The rule states the court has power to set aside or vary the judgement where one of the following grounds has been met:

1) the defendant has real prospect of successfully defending the claim

2) it appears to the court that there is some other good reason why-
(i) the judgement should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.

What is really important is when the defendant files the application to set aside the application, if they take time and mess about its unlikely the courts will apply the application and rule. Also the defendant must file the application with notice and evidence, can’t just say he wants to defend.