On behalf of: Claimant

Witness: XXr
No. of Witness Statement:1
First
Exhibit: XX1
Date: XXXXX

IN THE COUNTY CLAIM No 0LB12345

COURT AT XXXXXX

BETWEEN:
XXXXXXX Claimant

-and-

XXXXXXX Defendant

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SKELETON ARGUMENT OF THE CLAIMANT
For Application Hearing onXXXXXX
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Reading time 2-3 hours

1. Introduction

1.1 This is an application made by the Defendant to set aside an order for
possession.

1.2 The Claimant (C) is XXXXXXXX the Mortgagee. The Defendant (D) is
XXXXXX the Mortgagor.

1.3 C issued proceedings on XXXXXX, to obtain a Possession Order on the

ground of mortgage arrears. D failed to attend the hearing, and as such the Possession
Order was granted in D’s absence on XXXXXXX.

1.4 In an application dated XXXXXX D applied for the order to be set aside on the
basis that it was not fair for the court to have had proceeded in her absence.
 1.5 This document outlines the C’ submissions resisting D’s application to set
aside the possession order.

Pre-reading
2. The Court is likely to require 90 minutes to read the relevant documentation.

a. Application notice, Particulars of Claim dated (hereafter,’POC’) (dated 2019),

Witness statement of XXXXXXX ( ‘WSHR’ dated 9Novemebr 2019),
Defence, Order for Possession, Notice of Hearing Application
b. Defence (dated 2019)

c. Southwark LBC v Joseph March 2000, Legal Action 29, CA para 39.3.2 of vol
1.WB( If there is no evidence in support of the reason for non-attendance the
application must fail at that hurdle);

d. Bank of Scotland Plc v Pereira (Practice Note) [2011] EWCA Civ 241;
[2011] 1 W.L.R. para 39.3.7 of vol 1.WB (There is only jurisdiction to set
aside a regular judgment if the party seeking to have the order set aside can
satisfy all three requirements in r.39.3(5);

e. Regency Rolls Ltd v Carnall, 16 October 2000, unrep., CA para 39.3.7.1 of vol 1. WB
(construe ‘promptly’ here to require, D has acted with all reasonable celerity in the
circumstances);

f. Tinkler v Elliott [2012] EWCA Civ 1289; [2013] CA para 39.3.7.1 of vol
1.WB (the fact that a litigant in person ‘did not really understand’ or ‘did not
appreciate’ the procedural courses open to him for months, does not entitle
him to extra indulgence);

g. (Brazil v Brazil [2002] EWCA Civ 1135; (2003) 39.3.7.2 of Vol 1 WB (Court
to determine whether the reason is sufficient for the court to exercise its
discretion in favour of the defaulting party);

h. Teinaz v Wandsworth LBC [2002] I.C.R. 1471, per Peter Gibson LJ, at [21])
(Courts entitled to be satisfied that the inability of the litigant to be present is
genuine, and the onus is on the applicant for an adjournment);
 i. Bank of Scotland Plc v Pereira (Practice Note) [2011] EWCA Civ 241;
[2011] 1 W.L.R. 2391, CA,(The Pereira test still required the court to
scrutinise any medical evidence relied on in support of an adjournment);

j. Swain v Hillman [2001] 1 All E.R. 91 at 92j). (per Lord Woolf MR ) (“realistic” as
opposed to a “fanciful” prospect of success)

The test to setting aside possession order.

In order to for the Possession Order to be set aside D will need to satisfy the three
requirements set out in CPR r.39.3(5):

"(5) Where an application is made under paragraph (2) or (3) by a party who failed to attend
the trial, the court may grant the application only if the applicant:

(a) acted promptly when he found out that the court had exercised its power to strike out or to
enter judgment or make an order against him;

(b) had a good reason for not attending the trial; and

(c) has a reasonable prospect of success at the trial.

The issues in this case are:

a) Whether D had acted promptly in making the application 1 year and 3 months
after the order was issued.

b) Whether D had a good reason for not attending the hearing and whether a
therapeutic retreat with the famous Dr Lupin would be a good reason

c) Whether D has a reasonable prospect of success for success at trial given the D’s
current financial arrears and financial capabilities and Norgan Minimum.

d) C’s response to D’s defence statement

Promptness

C submits that D did not act promptly. The order for possession was granted on 19 November
2019, which would mean that D would have been notified by the end of November 2019 at
the very latest.

The Defendant states in her application to her defence at page 43 of the bundle, “All of a
sudden I have been received a possession order in this case”
The C would submit that in fact, D did know about the hearing. Numerous notices were
served to the Defendant, and it was up to the Defendant to attend, and she did not. The first of
these notices were sent to her on in November 2018

D was served with a number of notices, dated 11 November 2019 a notice of the hearing was
sent to the defendant, along with a witness statement dated 9th November 2019.

Notice of commencement of possession hearing at page 25 of the bundle, Letter dated 9

November 2019,

There was a further letter sent on 9 November putting D on notice that the proceedings had
been issued and the hearing was to take place on the 19 November.

D was given prior notice of the hearing on multiple accounts, therefore satisfying the
possession order rules. CPR PD 55C (look this up properly)

The White Book commentary at paragraph 39.3.7 indicates that where they are aware of
proceedings, but have not taken steps to ensure that they are aware of hearing dates, this is
unlikely to be a good reason.

D made her application to set aside judgement on 3 March 2021, which meant that the C
makes his application to set aside the order, more than 1 year and 3 months after the
possession order was given.

Commentary at CPR 39.3.7.1 states that a litigant in person who did not appreciate the
procedural courses open to him for months does not entitle him to extra indulgence, as per
Lord Justice Maurice Kay CA Tinkler Vs Eliott

C would submit that this is a gross delay in bringing this application, therefore cpr 39.3 (5)
(a) remains unsatisfied and the claimant hasn’t acted promptly:

Good reason

The Claimant will submit that the Defendant was aware of the fixed trial by virtue of a notice
of commencement if proceedings dated 11 November 2019 as above. The Defendant failed to
give a genuine and honest reason for non-attendance.

D did not attend as she states in her application that ‘did not attend as I had a therapeutic
retreat already scheduled with the famous Remus Lupin’
This does not appear to be a valid reason, as a therapeutic retreat would be a recreational
activity, rather a medical reason.

Further the commentary at 39.3.7.2 in the white book states that good reason must be
a genuine and honest reason not to attend, and on the basis of any illness which would
hamper the D’s presence, C therefore would submit that the therapeutic retreat would fail to
be seen a good reason as this is not medical grounds or related to any illness. Ni such
evidence has been submitted by D
CA Tinkler Vs Eliott

Therefore the claimant would submit that there was no good reason for the def not to attend.

Reasonable prospect of success at the trial

The Claimant submits that D does not have a reasonable prospect of success at the trial. This
is due to the fact, that the D’s Norgan Minimum is outside D’s financial capacity. D has
stated in her application (page ) that she is able to pay £XXXXXXX monthly towards her
arrears which currently is at XXXXXXX. This would fall significantly below the Norgan
minimum payment of £139.69 over the remaining mortgage term ending on XXXXXXXX

The current monthly instalment plan according to the terms and agreement of the mortgage
contract is at £860.42, which will leave D with £34.53 monthly.

According to the Norgan minimum monthly arrears payment is calculated at £139.69.

It is submitted that given the monthly instalments requirement is above D’s financial
capability, D is therefore unable to demonstrate am ability to monthly instalment due.

It is submitted, that due to the state of D’s account currently at arrears of £XXXXXXX,and
the defendant is showing a lack of financial prospect to fulfil the Norgan minimum to pay
towards her arrears, it remains inevitable that a possession order would be granted, and
therefore there is no prospect of success at trial.

Further has debts of an unknown sum and has paid 400.00 towards clearing that off,we are
unware

Norgan
Total arrears 22.072.22
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158 months = Minimum monthly arrears payment
139.69p- Norgan minimum towards the
arrears

Defence statement

‘The claimant never offered me a payment holiday during covid109 when I needed it
most’.

It is not for the claimant to offer it, it is upon the defendant to request this pursuant to MCOB
2.3.4 and cpr practice direction 55. Further paragraph 5.6 CPR PD 55, places the onus on the
Borrower to provide offers of payment - it does not oblige a Lender to ‘chase’ the Borrower
to discuss payment proposals should they fail to offer any proposal.

I would therefore submit that the onus is upon the defendant to prove that she did as a matter
of fact did ask for a holiday payment which on the facts she hasn’t until date.

‘My mother will be able to help me pay the mortgage each month’

D provides no evidence as to whether her mother whether can afford the mortgages
instalments or not. No evidence has been given as to her savings or whether she has an
income. We are unaware of her income and expenditures, or whether she has retired, it may
be the case that she has her own mortgage. Further the proposal does not mention payment
towards payment in respect of arrears or satisfying the Norgan Minimum payments.

The overriding objective

It is submitted that it would be just and expedient to refuse D’s application as D does not
have a real prospect of success at trial as detailed above. The criteria in CPR 39.3 indicates
that D would fail to be satisfied and it would not be proportionate to pursue them, and there
any no other good reasons why judgment should be set aside. Additionally, once D became
aware of the judgment she failed to act promptly in bringing this application.
In Bank of Scotland v Pereira, the Master of the Rolls stated that
if each of those three hurdles was crossed, it seemed clear that it would be a very exceptional
case where the court did not set aside the order.

Conclusion

C resists the application.