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.

ROSEMARY LUCAS

and

JOHN McHUGH

(trading as JM BUILDERS)

1. INTRODUCTION

1.1       Sir, 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.

1.2.            And in support of the application D will rely on the witness statement of John Mchugh dated 5th January 2004.

However, I have described the background of the case in my skeleton argument Paragraph 2.

2. BACKGROUND

2.1  Sir, the brief facts of the case is that the claim is, for the sum of  £5,752.50, as the building work was defective, which Mr John carried out at the C’s property from 10th March to 4th April 2003. This was the extension of the rear living room and its conversion into a bedroom, with en suite bathroom, for the inclusive price of £ 24,ooo. As a result, C had to carry out the remedial work at the property by another builder and was unable to let the converted bedroom during this time.

And, I have listed a brief chronology of the case in my skeleton argument Paragraph 2.2.

2.2.            Claim form/ particulars of claim issued: 31.10.03

Date of Service: 02.11.03.

Expiry of time for filling acknowledgement of service/defence: 16.11.03

Judgment in default entered: 24.11.03

Sir, Paragraph 3 of my skeleton argument where I have set out the legal requirements which needs to be satisfied under CPR, r 13.3(1) to set aside default judgment.

3.1.1    CPR, r 13.3(1)(a)- ‘a real prospect of success’

a)   Firstly Mr John denies the allegation that he did not fit a damp course. Clearly, C wanted an exact match of old and new bricks for the extension and was more concerned about the aesthetics than the practicalities of the work. Therefore, Mr John made it clear to the C that the original house bricks will only match with the reclaimed bricks, but are less water-resistant than the modern ones, which are a shade or so darker. Mr John then explained that if the reclaimed bricks were used there would be a  possibility of some water penetration in heavy weather, even with a damp course as this would only help to prevent ground water rising, but would not guarantee any water penetration. However, C showed no interest into what Mr John was saying, but confirmed him to use the reclaimed bricks by saying that ‘I just want the extension to match the house that’s all’: Witness Statement of John Mchugh, para- 4.

b)       Secondly, Mr John is not certain whether the water penetration was due to condensation or default window fittings without inspecting the window and seals. However, he used the existing window on the extension at C’s request, with a timber frame bay-style window having a deep sill. Anyway, there was likely to be a certain amount of condensation because the design of the window in the extension & the fact it was not double glazed. However, modern window frames allow for drainage, but the old–fashioned wooden frames do not have this facility. Therefore, Mr John used high-grade seals and putty when installing the window frame and sills: Witness Statement of John Mchugh, para-5.

C)      Finally Mr John denies that the lavatory was not properly affixed to the wall and was not stable. In fact, C bought the bathroom suite herself and instructed Mr John to fit the shower, toilet, cistern and hand basin. To fit the en suite bathroom  Mr John had to use timber frames because of both the confined space in the bathroom and the fancy styling bathroom furniture. These frames were a common and effective solution in these circumstances and were necessary for the interior walls were sufficiently sturdy to take the suite, particularly in the shower unit. However, C inspected the work together with Mr John after completion of the work, and expressed her  satisfaction .Sir can I take you in the Mr John’s witness statement paragraph 6 where you can see that C is saying ‘ great work, you’re a little miracle-worker’: Witness Statement of John Mchugh, para- 6.

d)      Therefore, my submission would be that Mr John has real prospects of success in this case.

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

3.1.2 Next test under CPR, r 13.3. (1) (b)- ‘some other good reason’ I have described in my skeleton argument paragraph 3.1.2.

a)      Firstly Mr John could not file a defence within the required period because he was on holiday in Australia and unaware of the existence of these proceedings: Witness Statement of John Mchugh, para-8.

b)   Secondly, Mr John would need to inspect the property to be able to state his case accurately and answere the C’s allegations, and he is confident he used materials of an appropriate grade and that his work was to industry standards: Witness Statement of John Mchugh, para- 2 & 9.

c)    Thirdly, Mr John question on whether the alleged remedial work would cost as much as the C states to correct the alleged defective work. Therefore, an inspection would be needed before ordering to pay the damages: Witness Statement of John Mchugh, para- 9.

d)      Fourthly, Mr John question on the C running a bed and breakfast business at the property at any time: Witness Statement of John Mchugh, para-9.

e)      Finally, Mr John responded promptly upon receipt of the Particulars of Claim: Witness Statement of John Mchugh, para-8.

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

Sir, Paragraph 3.2 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).

(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 24.11.03.

b)          And Mr John made the application to set aside the judgment is (Application dated) 05.01.04.

c)         Therefore my  submitition would be that Mr John has acted promptly in making this application since he returned to the UK on Friday 2nd January 2004 and he promptly made application on Monday 5th January.

4.CONCLUSION:

Finally, in conclusion my submission would be that Mr John 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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