We submit a fair number of applications to set aside judgements in default where our member has not received the claim, or not submitted a defence.
They are generally successful and in the interests of justice, the matter proceeds to a full trial. However, in a recent set aside hearing the judge was having none of it and refused to set aside the judgement, ostensibly because he found the vehicle was defective at the point of sale and the defendant therefore had no real prospect of successfully defending the claim. However, the judge also made it very clear he did not accept the defendant’s submission they had not received the claim in the first place.
It was our member, the defendant, who stated they did not receive the claim during the pandemic due to the stretched postal service and that they promptly submitted an application to set it aside when the judgement in default was received.
The other party argued our member would have been prudent to have their post redirected to someone in the company so that it could have been monitored. They argued that as the business has been able to operate remotely, the defendant should have received emails and should have been on notice. The other party argued, that on the balance of probabilities, the defendant had received the claim form but had not acted upon it and the judge agreed with them.
The judge went on to find the vehicle was defective at the point of sale in any event and that he did not consider that the defendant’s lack of awareness of the summons constituted a good reason why the default judgement should be set aside. The judge found the defendant had been on notice and that a default judgement was ‘coming down the track’, given they had chosen to ignore the claim.
The judge was not persuaded that the closure of the business premises was a sound reason to set aside judgement and commented that it is essential for all businesses to manage their premises and in this case, the defendant had not.
Another member has incurred costs following their failure to respond to an employment tribunal claim during the disruption caused by the pandemic and a variety of other factors.
Tribunal rules are extremely harsh as to the effect of failing to present a response to an employment tribunal claim. It prevents the respondent from participating in any hearing of the case, save as permitted by the tribunal and unfortunately, counsel’s advice to our member was that the cost of taking the extremely late action required would likely outweigh the outcome. We cannot stress enough – do not ignore court paperwork under any circumstances. Make sure you have administrative systems in place to manage in any eventuality.
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