Its been an eventful fortnight to say the least, a number of discontinuances, a case struck out, and probably the most impressive result out of them all was obtaining relief from sanctions post Mitchell.
The background to the case is easily summarised. A claim was issued in the Bulk Centre, it was defended, and the Court given an address for service. The Court receives a Defence, transfers to the Claimants local Court.
The local Court bizarrely ignores address for service on the AOS and writes to an alternate address with an order attached. Client never complies with the order and then the Court seems to have sent a second order out, this time to the address given on the AOS, however the address is overseas, and it seems by the time the order arrives overseas the client has left to come to the UK.
Anyway, the Defence was struck out for non compliance with the order.
The client made an application to set aside the Judgment around 2.5 weeks after he became aware that there was a charge on his UK property.
There was a number of adjournments and the case finally got a hearing at the beginning of February 2014.
The opponent was relying on Mitchell v News Group News papers and was saying that the client should not get relief from sanctions as the failures should not be overlooked, the judgment was properly entered as the client was at least aware an order had gone to the UK address as the tenant had found it and told him that there was a Court letter there.
We argued that firstly, Regency Rolls v Carnell suggested that a delay of 30 days was too long taking into account all the circumstances. In this case the application was timely, as the client had sought to obtain the form N244 from the Court, and the delays were explainable as the client had contacted the Court on becoming aware of the charge, he had asked for the N244, and then had to wait for the Court to send it to him, this was why it took 2.5 weeks to apply. Secondly, the Court knew the correct address for service yet used without any explanation an address which it should not have used.
Thirdly, justice demanded that the Judgment was set aside, if it remained it caused injustice as there was a judgment that was in place when there was prima facie evidence that showed the underlying debt wasn’t even the clients and it would be wrong to saddle a potentially innocent person with a debt that isn’t theirs. The Judge noted the Mitchell case, but took the view that it is not just the Courts that are important here, but it is ensuring that justice is done between the parties that is also important even taking into account the more narrow overriding objective.
A good result for the client as there have been many cases recently where relief has been refused, and at least common sense prevailed here.