N244 Application Notice Q10 Evidence

[rapid111111]

hybrice,

Thanks for the reply. This is a different case.
The defendants are asking to set aside. Any paperwork sent to me has come from the courts only and not them.

I've provided the defendants and the court with paperwork in preparation for the hearing to set aside.

[hybrice]

Sorry, I've only just seen this?

Is this related to the same case the topic is discussing?

Given I don't understand the context, here's what I'd say.

1. If you're filing the claim for the first time, you can provide all 3x copies to the Court and request they server it upon the Defendant, this eliminates the need to do it yourself, prove it, and fill out a notice of service.

2. If you're talking about filing papers before a hearing, then yes - absolutely, the Defendant should be served with any and all paperwork you want to rely on in Court. Not doing so will likely have the hearing adjourned, costs against you and ordered to serve it anyway.

Basically, you can't "jump" someone at a hearing, they should know what your claims and evidence for them are going in.

[rapid111111]

hybrice,

As a claimant, do I need to send paperwork to the defendants as well? This is in reply to the defence's request to set aside.

On the form received, it states:
Before the hearing on the papers: and gives only the court email address for submission.

No mention of sending to other parties. So if that's the case, then no need to send anything to the defendants?

[Aps]

Thank you for your reply. I shall answer your questions below.
"the claimant must take reasonable steps to ascertain the address of the defendant’s current residence (‘current address’)"
I believe the Claimant did not do this. She assumed the defendent was living at the last known address.

I would be interested to hear what reason the DJ gave for refusing the application.
He said the grandmother's Alzhiemers was an excuse and that if she was capable of returning the letter from the court to sender, she could have informed the defendant about the letter. Which is certainly not the case. She has no idea what she is doing most of the time. Sometimes she is reasonable and other times not. The defendant has not visited her grandmother in a long time, besides, unable to do so because of Covid.

Because it's an equitable remedy did the DJ ask whether an alternative method of service was considered?
I don't think so. He immediately dismissed the case to set aside.

Why was d not served at their last known address? Would that have made any difference?
She was served at the last known address which was her grandmothers. However she was not living there after moving out of the room in question. She lived temporarily at an Air BnB a 3 hour drive away close to her new employment.

The judge has never given the defendent the chance to defend herself. She had a strong case which is why she paid the 255 pounds to attempt to set it aside.

[Jon66]

Service of the claim form where the defendant does not give an address at which the defendant may be served

6.9

(1) This rule applies where –

(a) rule 6.5(1) (personal service);

(b) rule 6.7 (service of claim form on solicitor or European Lawyer); and

(c) rule 6.8 (defendant gives address at which the defendant may be served),
do not apply and the claimant does not wish to effect personal service under rule 6.5(2).

(2) Subject to paragraphs (3) to (6), the claim form must be served on the defendant at the place shown in the following table.

(For service out of the jurisdiction see rules 6.40 to 6.47.)

1. Individual	Usual or last known residence.
2. Individual being sued in the name of a business	Usual or last known residence of the individual; or principal or last known place of business.
3. Individual being sued in the business name of a partnership	Usual or last known residence of the individual; or principal or last known place of business of the partnership.
4. Limited liability partnership	Principal office of the partnership; or any place of business of the partnership within the jurisdiction which has a real connection with the claim.
5. Corporation (other than a company) incorporated in England and Wales	Principal office of the corporation; or any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim.
6. Company registered in England and Wales	Principal office of the company; or any place of business of the company within the jurisdiction which has a real connection with the claim.
7. Any other company or corporation	Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction.

(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

(4) Where, having taken the reasonable steps required by paragraph (3), the claimant –

(a) ascertains the defendant’s current address, the claim form must be served at that address; or

(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is –

(i) an alternative place where; or

(ii) an alternative method by which,
service may be effected.

I would be interested to hear what reason the DJ gave for refusing the application. Because it's an equitable remedy did the DJ ask whether an alternative method of service was considered? Why was d not served at their last known address? Would that have made any difference?

In order to be successful in a discretionary set aside application the d needs to show they have a real prospect of success, and apply in a timely manner, and from what has been said they didn't.

It is only mandatory for the application to be successful if the rules for service were not followed.

So here we have a judge making the decision probably because on what the defendant said here there was no real prospect of success. Unfortunately this is an example of where employing a direct access barrister for £200 would have been very worthwhile, even for a telephone hearing, because imo it had real prospects of success due to the d relying on a promise and from what has been said the other tenants had no losses.

Anyway best to immediately satisfy the ccj to show settled as it will help in the poor credit rating they will have.

[Jon66]

Tell me, was the claimant's last known address the grandmother's or the property where she had a tenancy? Because clearly if the latter she should have been served there. I'm not sure that helps but I'll have a look.

[Jon66]

This will cost you a fortune, you'd need to get the court of appeals to set aside, which the claimant can defend, if you lose - you'd be slapped with costs (could be several thousand). If you're successful and they set it aside, that isn't the end - it goes back to trial and you could still lose, and be slapped with costs. And your case is shaky at best. Pay up and move on, in my opinion.

I believe an appeal at this stage would go before a circuit judge. But either way unlikely to succeed unless an error in law. The standard one is failing to properly consider and attach weight to evidence.

Best to make an offer of £5 per month if unwaged.

[jpkeates]

It's academic.
The case has been tried and judgement probably can't be set aside and an appeal is virtually impossible.

You can't sue the tenant for money already awarded to them by a court.
That would simply be an abuse of process (that could go on forever).

[Aps]

As the Claimant has invented her own figures for the rent, which had never been agreed since the landlord actually reduced the rent by the defendent's amount to relieve her of paying after losing her job. The share of the new rent was never agreed upon. We understand the judge has decided purely on the Claimants decision of rent amount as nothing had been agreed. And we understand he defendent (my daughter) is now obliged to pay her. However, is there anything to stop the defendent suing the Claimant for stating she is owed an amount that had never been agreed upon? there were 3 tenants, with different sized rooms, and previously paid different amounts before the landlord kindly reduced the rent by the defendents part. The Claimant clearly abusing his goodwill.

[jpkeates]

Presumably you agreed what you were each going to pay when the arrangement was originally made.

Anyway, the case has been decided, so the judge has made a ruling based in the evidence given to them.

[pinede12]

How can the claimant go to the court and demand an amount if there is no agreed amount in the first place?

[jpkeates]

Who decides the amount each tenant pays in a joint and several tenancy?

The tenants.

Each of them is responsible for the full amount of the rent, but they usually discharge that liability by paying the full rent between them.

[pinede12]

Sorry to trouble again.

Who decides the amount each tenant pays in a joint and several tenancy?

[Aps]

Thank you so much for the advice.

[hybrice]

Aps,

I can't state this strongly enough; you should pay the CCJ.

It will prevent her getting a loan, credit card, a car, a mortgage, store cards, future rental properties, among other things.

Bailiffs will enforce at multiple properties and make efforts to track your daughter down if she's not present at the ones listed. If it's escalated to high court they can also seize assets such as cars, laptops, jewellery, etc