Skeleton Argument on Behalf of the Defendant - Case Study Example

IN THE CHESTER COUNTY COURT Claim No: 9C2258 BETWEEN HAMISH ORE LIMITED CLAIMANT and IAN WOOD trading as WOODS METAL DEFENDANT SKELETON ARGUMENT ON BEHALF OF THE DEFENDANT INTRODUCTION 1. The Defendant applies to set aside the judgment in default entered under Part 12 of the CPR on 29th April 2010. 2. The Defendant applies for setting aside judgment under CPR 13.2, claiming that he has a real defence to these proceedings and there is a good reason why there was a delay in filing the defence AND THAT THE DEFENDANT HAS ACTED PROMPTLY . 3. The Defendant seeks to set off counterclaims for the breach of statutory implied conditions about satisfactorily quality and fitness for purpose. EVIDENCE 4. In support the Defendant would refer to; a)Particulars of Claim, b)Witness Statement of Ian Wood with its Exhibits IW1-2 for the Defendant, c)Witness Statement of Sidney Cook with its Exhibits SC1-5 for the Claimant, d)Case law,1) Swain V Hillman, 2) Evans V Bartlam. FACTS 5. On 08th October 2009 the Claimant contracted to purchase an 8 meter used 6 cell weighbridge together with the necessary weighing equipment (‘machine’), the contract was culminate by an oral agreement for a sum of £8,000 plus VAT, which was paid by bank transfer on 18th October 2009 6 After the machine was disassembled, loaded and transported, the Claimant on 08th February 2010 complained to the Defendant of a problem in the machine and subsequently issued a Claim form by its solicitors on 22nd March 2010 and was awarded a judgment in default on 29th April 2010. SUBMISSIONS The test to be satisfied to set aside or vary a default judgment is under Rule 13.3(1) which requires the Defendant to show that the he has a real prospect of successfully defending the claim; or it appear to the court that there is some other good reason why the judgment should be set aside or varied or the defendant should be allowed to defend the claim. 1. My first submission relates to the fact that the defendant has a real prospect of success as laid down in the case of Swaine V Hillman. To prove that the defendant has real defence to these proceedings I will make a few references to the particulars of claim and the Witness Statements of Mr. Wood and Mr. Cook. 1. May I now refer you to paragraph 2 of the particulars of claim. The defendant had clearly not been informed of the use the machine was going to put to that is weighing coal and issuing weigh tickets, during the course of the dealings between the parties. This will be proved when referring to the witness statement of Mr. Wood. 2. para. 3 clearly points out to an implied term of satisfactory quality, Apart from other points on inspection that would be made later on, it is submitted that satisfactory quality of a used machine is being considered in the case, which requires a lower level of expectation and a higher level of checks from anyone who purchases such a machine. 3. para 4 merely adds fitness for its purpose which had not been communicated to the defendant. 4. May I now refer to para.3 clearly the defendant was not made aware of the exact reason for purchase of machine 5. para 4 clearly points out to the fact the fact that after acquiring the machine, the Defendant got the weighbridges inspected from Mr. Roger Norris, who deals in weighbridges and would clearly have been able to check any faults. For the result may I refer you to ‘IW1’ in which he stated that the machine was in a working condition. 6. may I now refer you to para.5 which clearly states that Mr. Cook had agreed to send a technician for inspection and that the Defendant stated that the guarantee was limited till the point of dismantling and loading. Clearly this would have provided him with an opportunity to analyse what he was purchasing and further the Claimant was more than aware of the limitation on the warranty, that is at the point of dismantling. 7. para 6 clearly states that the dismantling was carried out under the supervision of the Claimant and that the Claimant was responsible for arrangements of collection. Further, the possibility of damage during transportation and limitation of liability if such an event are illustrated. Finally, the delay in inspection by the Claimant clearly accounts for the fact that there has been damage caused during transportation and it was the Claimant who was irresponsible. 8. May i now refer to para. 2 of the Witness Statement of Sidney Cook. The Claimant is merely relying on the Defendant’s knowledge and assumed that the Defendant knew the purpose. Further the guarantee has not been clearly illustrated. 9. I intend to refer to para. 3, which clearly states that the Claimant noticed that the weighbridge was rusty and should have clearly inspected the weighbridge. Further may I refer you to SC1 which provides that the delivery had taken place on 21st November 2009 and may i now refer you to SC2 which states that the re-paint invoice was sent on 22 November 2009 10. Finally may I refer to Exhibit SC3, which clearly points out that the re-installation process was neglected till 25th Feb 2010, thereby making it difficult to ascertain when the defect had occurred. (The date of meeting is stated as 16 November 1998 this is either incorrect or a very strong argument) 11. In para 5., where the claimant alleges that they would not have been able to know of the condition. This argument is baseless as the claimant was clearly called upon to inspect the weighbridge before it left the defendant’s premises. The other arguments of the load cells not working could have been due to faulty transportation and everything that the claimant required was shown to him and he had reasonable time to inspect them. Therefore the arguments are baseless. Finally the defendant re-iterated the limitation he had told the claimant about and so it did not mean that the defendant was not in the mood for discussion. 2. My second submission realtes to Delays i.e reasons for delay in filing a defence. May I refer to Lord Wright’s judgment in Evans v Bartlam where it was stated that ‘The primary consideration is whether he has merits, to which the court should pay heed; if merits are shown, the court will not prima facie desire to let pass a judgment on which there has been no proper adjudication’. I submit defendant has a real reason, to prove that I will request you to refer Master may I refer you to para 2 of the witness statement of Ian wood. Master this deals with the reason for the defendant not being able to respond in time. Clearly a person being in his position could not have responded to the Claim form. 3. I submit that setting aside default judgment is in harmony with overriding objectives set out in Rule 1.1 (2)// I submit interest of justice so requires because the D has real defence. 4. Further I submit as per Art 6 ECHR 1972 everyone has a right of fair trial 5. Finally it is submitted that the promptness of the Defendant to respond to the proceedings one he became aware is matter to be taken into account. I submit that defendant has proved that he has a real prospect of successfully defending the claim and the judgment should be set aside and the defendant should be allowed to defend the claim. First, the Claimant had not inspected the machines properly. It seems content to simply rely on the quotations to provided, in exhibit SC1-5. Secondly, the warranty had been limited and the faults were due to transportation problems, as the machine was in running condition before transportation and it was the Claimant’s omission of not inspecting machine after transportation which caused the problem. CONCLUSION The Court has the power to set aside the default judgment under Rule 13.3(1), refuse the application or make a conditional order For the reasons stated above the Defendant has shown that there is a real prospect of success and that the default judgment is set aside in respect of this specified claim Signed: ______________ ________ Chambers Date: ____________ Read More