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BPTC Law Notes Civil Advocacy Notes

Skeleton Argument Setting Aside Default Judgment Notes

Updated Skeleton Argument Setting Aside Default Judgment Notes

Civil Advocacy Notes

Civil Advocacy

Approximately 42 pages

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The following is a more accessible plain text extract of the PDF sample above, taken from our Civil Advocacy Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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:

    1. Claim Form with Particulars of Claim (“PoC”) attached dated 16/01/2017, and Certificate of Service dated 19/01/2017

    2. Application Notice to set aside default judgment dated 03/03/2017

    3. Judgment in default dated 17/02/2017

    4. Witness Statement of Mr. Jeremy Lock (“WS/JL”) dated 03/03/2017, with Exhibit JL1

    5. Witness Statement of Mrs. Nicola Darcy (“WS/ND”) dated 07/03/2017

FACTUAL BACKGROUND

  1. 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 34,000 for his work (WS/JL para 14).

  2. 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).

  3. 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 33,155.02 and 2,297.50 in costs.

  4. 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

  1. The Court has a discretion under CPR r.13.3 to set aside a regularly obtained default judgment if:

    1. the defendant has a real prospect of successfully defending the claim (r.13.3(1)(a)); or

    2. it appears to the court that there is some other good reason why:

      1. the judgment should be set aside or varied (r.13.3(1)(b)(i)); or

      2. the defendant should be allowed to defend the claim (r.13.3(1)(b)(ii)).

  2. 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)).

  3. 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.

  4. 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:

    1. whether the default could rightly be described as serious or significant;

    2. the reasons why the default occurred; and

    3. 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

  1. D left for Thailand on 23/12/2017 and returned on 23/02/2017. On the day of his return, he discovered the Letter of Claim, Claim Form with PoC and the default judgment which had been entered against him on 17/02/2017 while he was abroad. D was called away to work on an emergency building contract until 03/03/2017 at which time he instructed solicitors and the Application Notice was filed immediately (WS/JL para 16). It is submitted that the Court might find that D acted with reasonable celerity in the circumstances.

Whether the Defence has a real prospect of success

  1. The burden is on D to show that he has a defence which is better than merely arguable (ED&F Man Liquid Products Ltd v Patel [2003] C. P. Rep 51, per Potter LJ at [8-9]), though it need not be probable that it would succeed at trial.

  2. D submits that he is able to demonstrate a realistic defence to the claim:

    1. D carried out the Works with all due care and skill. He checked and measured the Property, taking appropriate notes, and advised C on the relevant building regulations (WS/JL para 4 and see WS/ND para 5).

    2. D submits that any reduction in the water-resistance of the exterior walls was symptomatic of C’s express requirement to use reclaimed bricks in the build (WS/JL para 5). D gave C adequate warning to this effect (WS/JL para 6).

    3. C rejected D’s advice to install a new double-glazed window fitting so as to afford more water protection. Contrary to this advice, C insisted that the bay window be remodelled from its original timber frame (WS/JL para 10). Nevertheless, D used industry-grade materials to fit the required window frame and sills (WS/JL para 11).

    4. The otherwise minor weaknesses of C’s design specification were exploited by the adverse weather conditions in the period immediately after the Works were completed, beyond D’s control (WS/ND para 7).

    5. In any event, D contends that any damp may have been caused by the poor workmanship of a company known as ‘Dampro Limited’ of Balham, London, who were engaged by C to lay the damp proof course at the Property (WS/JL para 13).

    6. D installed the bathroom suite to C’s specification. He...

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