This is an application on behalf of the Defendant (‘D’) for judgment entered in default, under CPR, Part 12, to be set aside under CPR, r 13.3.

IN THE LAMBETH COUNTY COURT CLAIM NO.  LA4 1023 BETWEEN

JAMES MIDDLETON                    Claimant

and MICHAEL CARR                   Defendant (trading as MICHAEL’S BAKERY)

DEFENDANT’S SKELETON ARGUMENT

1. INTRODUCTION: 1.1       This is an application on behalf of the Defendant (‘D’) for judgment entered in default, under CPR, Part 12, to be set aside under CPR, r 13.3. 2. EVIDENCE: 2.1     In support of the application D will refer to the relevant documents, which are as follows: Claim form/ particulars of claim dated 05.04.04, Judgment for Claimant dated 17.05.04, Application Notice for setting aside judgment entered in default dated 25.06.04, Witness statement of Michael Carr (‘MC’) dated 25.06.04 and Exhibits MC1 and MC2, Witness statement of James Middleton dated 09.07.04. 3. BACKGROUND: The claim is for rescission of the contract and return of the price £ 6, 750 of a white Ford transit van, registration number W123 CSL (‘the van’) as the purchased van was defective. It revealed that the Claimant (‘C’) had entered into an oral agreement with the D on 05.03.04, for the purchase of the van at the price of £ 6,750, in reliance upon the D’s oral representations. Moreover, it was claimed that the representations were false and so D was in breach of the terms of the contract. 4. THE LEGAL REQUIREMENTS TO BE SATISFIED TO SET ASIDE DEFAULT JUDGMENT: The court has discretion to set aside or vary judgment entered under Part 12 if it is satisfied that: a)      the D has a real prospect of successfully defending the claim: CPR, r 13.3(1)(a); or b)      it appears to the court that there is some other good reason: CPR, r 13.3. (1) (b), why- i)                    the judgment should be set aside or varied; or ii)                   the D should be allowed to defend the claim. c)      the court must finally have regard as to whether the application to set aside the    judgment is made promptly: CPR, r 13.3(2). 4.1 CPR, r 13.3(1)(a)- ‘a real prospect of success’

(i) The van’s gearbox, fan belt and starter motor :

D denies C’s allegation that his presentations regarding the van’s condition were false. Therefore, D set out the following reasons in respect of gearbox: a)      the gearbox condition had been noticed by the C: Witness Statement of Michael Carr, Para-8 b)      D had made clear to him that the gearbox would probably need to be replaced in the near future while the C commented during the road test of the van that the gear box was rather sticky: Witness Statement of Michael Carr, Para-4 c)      D had reduced the van price by £500, because the gearbox would require replacing: Witness Statement of Michael Carr, Para-4 With regard to the fan belt and starter motor. Firstly, D allowed him to road tests the van, as wall as inspecting the inside and outside of the vehicle, along with the engine ensuring that C was satisfied before a sale was agreed: Witness Statement of Michael Carr, Para-4. Evidently, C himself commented in his (JAMES MIDDLETON) witness statement, para 3 that ‘I did look at the van inside and out and did have a look under the bonnet to see the engine’. Therefore, it is submitted that the C bought the van after being satisfied with the state of the vehicle. Secondly, the C did not provide any evidence so far that both the fan belt and starter motor had ceased to operate due to a fault, which was known to the D at the time of the sale, that was originated in the van mainly before D sold it. Finally, expert evidence would be needed to establish the cause of the fault. It is therefore submitted that even if the gearbox, fan belt and starter motor had ceased to operate, C had indeed had ample opportunity to inspect the van. Following, the D could not be held responsible for the state of the van several weeks after the sale: Witness Statement of Michael Carr, Para-5 (ii) The van’s suitability for the transportation of live birds: a)      D strongly denies that he made any reference to the suitability of the van for transporting pigeons, although the C did ask about the ventilation in the rear of the van. In reply, he told the C that ‘it was excellent for my purposes’ (its meant as a baker making deliveries): Witness Statement of Michael Carr, Para-4 b)      C had further inspected the van inside and out, and he was therefore in a better state to conclude that it was suitable for the transportation of live pigeons or there was sufficient ventilation, as it is clearly visible: Witness Statement of James Middleton, Para-3 (iii) Course of business: D refused the claim that he had sold the van in the course of a business and the reasons are given as follows: a)      D was no longer trading as Michael’s Bakery and indeed was not even using the van for deliveries of Joan Ramsay’s decorated cakes at the time of the sale: Witness Statement of Michael Carr, Para-8 b)      D mainly ceased his delivery service on 28.02.04, and in fact decided to cease work altogether and would live off his private pension Witness Statement of Michael Carr, Para-3 c)      D advertised the van in the local newspaper, The Lambeth Gazette, on 04.03.04, due to sell it and buy a small hatchback with the proceeds, which clearly shows that he sold the van using his first name with no reference to his old bakery, a true copy of this advertisement is referred to exhibit MC1; Witness Statement of Michael Carr, Para-3 d)       It is therefore inferred that the D had sold the van as an ordinary member of the public: Witness Statement of Michael Carr, Para-8 It is submitted that the defence has real prospects of success. Furthermore, the test of having a real prospect of success, means that the prospects must be better than merely arguable, is not correct that the test is satisfied unless the case has no realistic prospect of success: International Finance Corporation v. Utexafrica sprl (2001) CLC 1361 4.2  CPR, r 13.3. (1) (b)- ‘some other good reason’ (i)   D could not file a defence within the required period, despite acknowledging service of the Claim Form and Particulars of Claim, due to an urgent and unavoidable trip to USA: Witness Statement of Michael Carr, Para-6 . Moreover, D was preoccupied since he and his wife had left for the USA, until 18.06.04, whilst visiting his sister in the hospital and finally attending to her funeral arrangements: Witness Statement of Michael Carr, Para-7 (ii)  An independent expert inspection would be needed before ordering to pay the damages due to the alleged fault. (iii) D responded promptly in making this application: Application Notice dated 25.06.04 (iv)  On the facts of the case, if the application were to be granted, there would be no   real or immediate prejudice to the C, because he had used the van as an extra vehicle to help him in his hobby of pigeon racing and for odd jobs such as DIY and moving furniture: Witness Statement of James Middleton, Para-2. Where as the D will have to pay the damages from his private pensions if the application is not granted: Witness Statement of Michael Carr, Para-3. (v)        It is submitted that the court may take into account these matters in the exercise of its discretion and that they amount to good reasons why the judgment should be set aside or the D should be allowed to defend the claim. 4.3 Matters to which the court must have regard: In considering whether to set aside or vary judgment entered under CPR, Part 12 the matters to which the court must have regard include whether the application to set aside the judgment is made promptly: CPR, r 13.3(2). a)          Judgment entered dated 17.05.04 b)          Application dated 25.06.04. c)          It is submitted that the D has acted promptly in making this application. d)     It is further submitted that in the interests of justice judgment should be set aside. 5.CONCLUSION: D therefore seeks an order for the judgment set aside to defend the claim. D is confident that he has a good defence and a satisfactory explanation for his failure to file a defence within the required period. Mr XXX 5th August 2004 ICSL Chambers

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