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Stuart J
Stuart J, Solicitor
Category: UK Law
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Experience:  PGD Law. 20 years legal profession, 6 as partner in High Street practice
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I had summary judgement entered against a debtor for money

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I had summary judgement entered against a debtor for money owed to me. The enforcement of the judgment was stayed for 14 days pending the debtor filing set off as she had claimed. In complying with the court order, the debtor filed a new defence (including set off) which she made clear is a replacement of the defence she had filed prior to judgement being entered against her. She relied on matters that the judge had already taken into account when pronouncing judgment against her.

1. Is it permissible to file a replacement defence in (a) circumstances where judgment has already been entered against her (b) without the court's permission?
2 Will an application to strike out this new defence (in whivh she incorporates set off) be be appropriate? If so, on what grounds?

The claim has been allocated to fast track
Submitted: 1 year ago.
Category: UK Law
Expert:  Stuart J replied 1 year ago.
Thank you for your question here on Just answer. It is my pleasure to try and assist you with this today. Please bear with me if I need to ask for any further information from you in order for me to be able to advise you fully. My name isXXXXX and I am a practising solicitor. I have been an expert on this website in UK law since 2008. During that time, as you appreciate, I have answered thousands of questions from satisfied users on a variety of subjects.
Because we are all in practice with clients and court and other users, I might not always respond in minutes, particularly evenings and weekends. Please bear with me in that case. I will be online and off-line all day most weekdays and weekends.

How much is the debt owed please?
Customer: replied 1 year ago.


Initially the debt was for £4625.40. However on 3 SeptemberXXXXXordered the debtor to pay me £6622.88 plus £1158.50 in costs totalling £7781.38.

Expert:  Stuart J replied 1 year ago.






When you say "set off" do you mean a counterclaim?



Do you mean that she has changed her defence to try and get round
what the judge has said?



I think an application to strike out the new defence is
absolutely appropriate. If she thinks that she can do that, she is mistaken. Her
remedy, if she thinks the judge has made an error of law or fact, is to appeal.



She has had her chance at making a defence which obviously failed
and she cannot keep having stabs at it until such time as she wins.



The court will always consider what someone submits but there is
no guarantee therefore that it is going to work or even be accepted.



I think the only issue here is whether there is a counterclaim
because at this stage, you have won your claim and her defence has failed.



So, whilst the court may allow the counterclaim, it should reject
her rejigged defence.



I don't know why it was allocated to fast-track as opposed to
small claims track, in view of the amount of the claim

Customer: replied 1 year ago.


That's the interesting thing; she simply stated Defence and Claim of set off and according to the court paid no fee for counterclaim. She made it very clear in her response to my CPR18 request that she is not filing a crossclaim.


 


I suppose set off can be claimed without a counterclaim.


 


So what grounds for strike off - no prospects of success, abuse of process?


 


You have helped clarify matters considerably

Expert:  Stuart J replied 1 year ago.
Can I have the full background of the case please?
Customer: replied 1 year ago.

In March 2013 she filed a defence which was mentioned set off but was not particularised in terms of legal or equitable set off but stating that I owed her money as well. Having heard both parties summary judgment was entered against her in September 2013. The court ordered "Judgment shall not be enforced upon the Defendant filing a set off by 4pm 17 September 2013. My view is that she was supposed to state how much I allegedly owed her and why?


 


 


 

Expert:  Stuart J replied 1 year ago.


You are absolutely correct.

In effect, this is a counterclaim and she is supposed to pay a
fee for it.



I cannot see why the judge has allowed this at the late stage but
the fact is that he has.



She cannot simply say that you all her a chunk of money without
pleading why you owe her the money.



I think when this goes back to court, her
counterclaim/application for set off will fail based upon the facts that you
have given me

Stuart J, Solicitor
Category: UK Law
Satisfied Customers: 20903
Experience: PGD Law. 20 years legal profession, 6 as partner in High Street practice
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