Complaint Review: Fresh Start Living Ltd

IN THE LUTON County Court

Claim number 2QZ22139

Luton County Court
2nd Floor, Cresta House Alma Street
Luton Bedfordshire LU1 2PU 

Tuesday, 15th January 2013

Before:

DEPUTY DISTRICT JUDGE MCCOURT

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SK------
Claimant

-v-

FRESH START LIVING LIMITED

Defendant

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MR STEPHEN DYER (of Neves & Dyer) appeared on behalf of the Claimant.

THE DEFENDANT did not attend and was not represented.

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DEPUTY DISTRICT JUDGE MCCOURT: I should say, Mr Dyer, as is customary, this hearing is being recorded. You may not know that, Mr Dyer. You represent the claimant, Mr Skinner.

MR DYER: That is correct. 

DEPUTY DISTRICT JUDGE MCCOURT: And you may not know that yesterday there was an email from Fresh Start, from one Hannah Jones, apparently, said to be for and on behalf of Chris Hutchinson, in-house lawyer. "Please note that there is nobody for the company available to attend the proposed hearing at Luton tomorrow. We apologise for the late notice provided. If we are able to arrange, can you please advise how?" It is not for the court to advise parties. The parties, if they are making applications to set aside judgment, they should surely, of course, attend. Have you had any correspondence, Mr Dyer?

MR DYER: No. I had late instructions on this matter. I know what it is about. All I have seen is an application to set aside which says

DEPUTY DISTRICT JUDGE MCCOURT: Let me tell you. I have a limited file and there are cryptic notes. The claim is for a 15, 000 deposit for A failed property purchase, plus interest and costs. "Fresh Start Living Limited represented to me verbally and by way of email that they had acquired a property known as Victoria House, Milton Street, Nottingham. FSL verbally stated that the property conversion would be completed by September 2011. On 30th June 2011, FSL by way of email set out the time scale for exchange and completion. Based on these representations, on 7th July 2011 I signed an agreement to purchase. My solicitor" That was not you at that time, was it?

MR DYER: It was.

DEPUTY DISTRICT JUDGE MCCOURT: It was you. "My solicitor later discovered FSL never owned this building and may never be in a position to purchase it". Is that correct?

MR DYER: That is correct. 

DEPUTY DISTRICT JUDGE MCCOURT: "FSL refused to refund our deposit, which is unreasonable". So there was a judgment in default. It appears that that process was quite proper, i.e. the judgment was a regular judgment, because the application says so. The application is signed by one Philip Wright, whose status in the company is not made known to me - or to you, presumably.

MR DYER: No. 

DEPUTY DISTRICT JUDGE MCCOURT: He says, "We missed the time frame stated in the CPR due to an administrative error by one of our temporary employees." This takes the case out of CPR 13.2, which, of course, is the provision for irregular judgments and I am left with an application. I am not going to adjourn this matter. I am going to deal with it. That means that it is under CPR 13.3, cases where the court may set aside a judgment entered under part 12. "The court may set aside a judgment entered under part 12" - that is the default judgment, of course. It was a default judgment, was it not? 

MR DYER: Yes, That is correct.

DEPUTY DISTRICT JUDGE MCCOURT: I should for completeness say that judgment was on 1st November. "If the defendant has a real prospect of successfully defending the claim or it appears to the court that there is some other good reason why the defendant should be allowed to defend the claim".

All we have from the defendant is the application which simply says - this is Mr Wright's statement in support of the application - it confirms the administrative error and then says, "The judgment came as a shock as we wished to robustly defend the claim that has been served upon the defendant company. I believe, if the courts were in receipt of the full written and incidental evidence, they would not have come to this decision". That does not help me. There is no reason, of course, why the witness statement should not give me some clue as to what, indeed, the defence is and, similarly, I am not too impressed by the fact that the defendants are not here. They could, of course, have instructed a solicitor or an agent to attend. 
Is there anything further that you want to add, Mr Dyer?

MR DYER: In a nutshell, I think that you have argued my case for me, sir. 

DEPUTY DISTRICT JUDGE MCCOURT: Yes, because the defendants are not here, I thought it appropriate for the purposes of the record to state the reasons why I am, therefore, dismissing the application. I am going to do precisely that. I am not striking it out, I am dismissing it, because I have dealt with it. Application dismissed.

Costs, Mr Dyer?

MR DYER: I have done a very foolish thing this morning. I thought that I should bring my original file in connection with the purchase, which I took out of our archives, and I left the file that I prepared to bring to court on the side.

DEPUTY DISTRICT JUDGE MCCOURT: Are you actually on the record?

MR DYER: I was about to file the notice of action. I had all that prepared and left it in my office in Hitchin.

DEPUTY DISTRICT JUDGE MCCOURT: Right. I am going to make, I think, the appropriate order.

MR DYER: The costs that I worked out this morning were 546 plus VAT.

DEPUTY DISTRICT JUDGE MCCOURT: Well, you are not on the record.

MR DYER: So I am in difficulties. 

DEPUTY DISTRICT JUDGE MCCOURT: You have not prepared a schedule, so I am going to say no order as to costs. Should this proceed, no doubt you will file notice of acting and away we go, but I think that the defendant will now have an uphill struggle as the defendant has, of course, voted with his feet by not attending. There we go. Application dismissed.

MR DYER: I am obliged, sir.