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Skeleton Argument Setting Aside Default Judgment Notes

BPTC Law Notes > Civil Advocacy Notes

This is an extract of our Skeleton Argument Setting Aside Default Judgment document, which we sell as part of our Civil Advocacy Notes collection written by the top tier of City Law School students.

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IN THE COUNTY COURT AT LAMBETH

Claim No. LA086346

BETWEEN:

Mrs. NICOLA DARCY

Claimant/Respondent

and Mr. JEREMY LOCK (trading as JM BUILDERS)

Defendant/Applicant

___________________________________________ SKELETON ARGUMENT OF THE DEFENDANT RE: SETTING ASIDE DEFAULT JUDGMENT ____________________________________________

INTRODUCTION

1. This is an application made on behalf of the Defendant ("D") to set aside the judgment entered under CPR Part 12 on 17/02/2017. D's application is made pursuant to CPR rr.13.3-13.4 and complies with Part 23.

2. D will make reference to the following documents: a. Claim Form with Particulars of Claim ("PoC") attached dated 16/01/2017, and Certificate of Service dated 19/01/2017 b. Application Notice to set aside default judgment dated 03/03/2017 c. Judgment in default dated 17/02/2017 d. Witness Statement of Mr. Jeremy Lock ("WS/JL") dated 03/03/2017, with Exhibit JL1 e. Witness Statement of Mrs. Nicola Darcy ("WS/ND") dated 07/03/2017

FACTUAL BACKGROUND

3. The Claimant ("C") is the owner and occupier of 16 Dove Close, Downside, Dulwich SE13 ("the Property") (PoC para 1). D trades as a plumber and builder specialising in small-scale domestic renovations (WS/JL para 2). In August 2016, D built a studio extension out of a ground floor room at the Property ("the Works") in accordance with a written agreement (WS/JL paras 3-9). D was paid PS34,000 for his work (WS/JL para 14).

1 4. C alleges that the Works were not carried out with reasonable care and skill and that D used unsatisfactory materials which were not fit for purpose (PoC paras 5 & 9). C also purports to allege that there was a breach of the express terms of the agreement, however this does not appear to be supported by any of the stated particulars (PoC paras 4 & 9). C contends that D acted in repudiatory breach of contract (PoC para 9).

5. C issued proceedings on 16/01/2017. D did not file an Acknowledgement of Service or Defence in time as the relevant period for doing so expired before D returned to England after spending two months in Thailand. C obtained judgment in default on 17/02/2017 in the sum of PS33,155.02 and PS2,297.50 in costs.

6. D disputes C's allegations or otherwise intends to put her to proof. It is D's case that he applied all due care and skill and used satisfactory materials in the Works (WS/JL paras 4-17). D contends that any damage C may have suffered was caused by her particular design specification (WS/JL paras 5-7, 10) or as a result of substandard building work undertaken by a third party (WS/JL para 13).

APPLICATION TO SET ASIDE DEFAULT JUDGMENT The Court's power to set aside default judgment

7. The Court has a discretion under CPR r.13.3 to set aside a regularly obtained default judgment if: a. the defendant has a real prospect of successfully defending the claim (r.13.3(1)(a)); or b. it appears to the court that there is some other good reason why: i. the judgment should be set aside or varied (r.13.3(1)(b)(i)); or ii. the defendant should be allowed to defend the claim (r.13.3(1)(b)(ii)).

8. In exercising its discretion, the matters to which the Court must have regard include whether an application to set aside was made promptly (CPR r.13.3(2)).

9. The Court's general power to make an order subject to conditions under CPR r.3.1(3) (a), including a condition to pay a sum of money into court, applies to orders made under r.13.3 as any other.

10. Once the Court has considered D's application under CPR r.13.3(1)(a) and (b), it must, by virtue of the implied sanctions doctrine, move to consider the Mitchell/Denton principles under r.3.9, namely: a. whether the default could rightly be described as serious or significant; b. the reasons why the default occurred; and c. all the circumstances of the case, including the factors stated in CPR r.3.9(1) (a) and (b).

Whether the application was made promptly

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