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.

JAMES MIDDLETON

and

MICHAEL CARR

1. INTRODUCTION

1.1  Sir / Madam, 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  Sir / Madam, And in support of the application Mr Carr will rely on the relevant documents which I have listed in my skeleton argument paragraph 2.1

3. BACKGROUND

Sir/Madam, I have further described the background of the case in my skeleton argument Paragraph 3. The brief facts of the case is that the claim is for rescission of the contract and return of the price £ 6, 750 of a white Ford transit 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.

Sir / Madam, Paragraph 4 of my skeleton argument  I have listed the legal requirements which needs to be satisfied under CPR, r 13.3 to set aside default judgment.

a)      Whether Mr Carr has a real prospect of successfully defending the claim; or

b)      Whether there is some other good reason why-

i)                    the judgment should be set aside or varied; or

ii)                   Mr Carr should be allowed to defend the claim.

c)      Finally, the court will regard as to whether the application to set aside the    judgment is made promptly.

4.1  ‘a real prospect of success’

There are three issues which I have considered under the real prospect of success test. Firstly, the van’s gearbox, fan belt and starter motor. (i) The van’s gearbox, fan belt and starter motor :

With regard to gearbox:

Mr Carr denies C’s allegation that his presentations regarding the van’s condition were false.

a)      the gearbox condition had been noticed by the C: WS MC P-8

b)      Mr Carr had made clear to the C that the gearbox would need to be replaced in the near future WS MC P-4

c)      Mr Carr had reduced the van price by £500 due to the gearbox: WS MC P-4

With regard to the fan belt and starter motor:

Firstly, Mr. Carr allowed the C 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: WS MC P-4. Sir/Madam, can I take you in Mr James Middleton’s witness statement paragraph 3 where you will see that the C is saying  ‘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 Mr. Carr at the time of the sale.

It is therefore submitted that Mr. Carr could not be held responsible for the state of the van several weeks after the sale, mainly because the C had an ample opportunity to inspect the van: WS MC P-5

(ii)  The next issue is the van’s suitability for the transportation of live birds:

a)      Firstly, Mr Carr did not make any reference to the suitability of the van for transporting pigeons, although the C asked him about the ventilation in the rear of the van. Sir can I take you in P-4, WS MC (line-8). In reply, he told the C that ‘it was excellent for my purposes’ (its meant as a baker making deliveries).

b)      Secondly, C had inspected the van inside and out, and he was therefore in a better state to conclude whether it was suitable for the transportation of live pigeons or there was sufficient ventilation, as it is clearly visible: WS JM, P-3

(iii) The next issue is the Course of  a business:

Mr. Carr had refused the claim that he had sold the van in the course of a business and the reasons are given as follows:

a)      Firstly, Mr. Carr was no longer trading as Michael’s Bakery and not even using the van for deliveries of Joan Ramsay’s decorated cakes at the time of the sale: WS MC P-8

b)      Secondly, Mr Carr ceased his delivery service on 28.02.04, and decided to live off his private pension: WS MC P-3

c)      Thirdly, Mr Carr advertised the van in the local newspaper, The Lambeth Gazette, on 04.03.04, due to sell the van. Sir can I take you in Exhibit MC1 (Page 11), where it is clearly shows that Mr Carr sold the van using his first name with no reference to his old bakery: WS MC, P-3

d)       It is therefore inferred that Mr Carr had sold the van as an ordinary member of the public: WS MC, P-8

Therefore, my submission would be that Mr Carr has real prospects of success in this case. Sir, the case I have quoted in my skeleton argument 4.1(iii) (d) is International Finance Corporation v. Utexafrica sprl (2001) CLC 1361. Here is the full text of the case. Sir, this case makes clear that the D only needs to show that the real prospect of success is better than merely arguable.

4.2.1        Next test is ‘some other good reason’

(i)   Firstly, Mr. Carr could not file a defence within the required period due to an urgent to USA, although he acknowledged service of the Claim Form and Particulars of Claim,: WS MC P-6 . I have explained this in depth in my skeleton argument 4.2(i).

(ii)  Secondly, an independent expert inspection would be needed before ordering to pay the damages due to the alleged fault.

(iii) Thirdly, Mr Carr responded promptly in making this application: Application Notice dated 25.06.04

(iv) Fourthly, the interest of justice is in favour of Mr Carr. 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 bought 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: WS JM, P-2. Where as Mr Carr will have to pay the damages from his privates pension if the application is not granted: WS MC, P-3.

v)   Therefore, my submission would be that these are matters which amount to good reasons why the judgment should be set aside. So, Mr Carr should be allowed to defend the claim.

Sir, Paragraph 4.3 of my skeleton argument I have described the Matters to which the court must have regard that whether the application to set aside the judgment is made promptly: CPR, r 13.3(2).

a)          Judgment entered 17.05.04.

b)          And Mr Carr made the application to set aside the judgment is (Application dated) 25.06.04.

c)       Therefore my submission would be that Mr Carr has acted promptly in making this application since he was in USA until 18th June 2004 and he made application on 25th June 2004.

4.CONCLUSION:

In conclusion I would submit that Mr Carr has a good defence and a satisfactory explanation for his failure to file a defence within the required period. Therefore, I would request the court to grant an order for the judgment to set aside.

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