Issue of Warrent of Control - CCJ on Statue Barred debt (Cabot)

[Don Quixote]

Re: Issue of Warrent of Control - CCJ on Statue Barred debt (Cabot)

Is it not possible to combine the two requests into one application, ie. ask for the warrant to be suspended while the set aside application is heard? Would save some cash.

From memory (I’ll go and check when I can) I think the fact that you acknowledged service actually means the set aside will be automatic. I think this is known as an “irregular’ default judgment. A regular default judgment occurs when the court does not hear from the defendant.

Do you have proof of your acknowledgment? Was it done online?

[Tristesse]

Re: Issue of Warrent of Control - CCJ on Statue Barred debt (Cabot)

Hi Don Quixote,

Thanks to you and others for the really helpful replies.

I'm not sure if you can combine them, if so I suppose that would save some cash but if not no issue I'll file the N245 first (nearly filled in all the info now between meetings).

Yes the acknowledgement was done online and I did take a screenshot at the time which I have on the computer at home. Really not to sure on the irregular judgement thing, would be great if it does help. Still kicking myself that I didn't file the defence on time, nightmare having to go away I just forgot about it.

regards
Tristesse

[Don Quixote]

Re: Issue of Warrent of Control - CCJ on Statue Barred debt (Cabot)

One other thing – when the judgment was entered, the court would have sent your wife a copy of the default judgment. Did you not receive this?

- - - Updated - - -

I think you need to read through the Civil Procedure Rules, Part 12. Short of time at present, but I did find this:

http://www.aboutsmallclaims.co.uk/set-aside-default-court-judgment.html

Bear in mind this is a quick Google search and, well, it’s on the internet... try and seek out the statute for it.

[Tristesse]

Re: Issue of Warrent of Control - CCJ on Statue Barred debt (Cabot)

Ok following on from that I've just done a google on the irregular default judgement and this has come up:

Irregular Default Judgments


The law distinguishes between two types of default judgments: “regular” and “irregular” judgments. A default judgment will be irregular if it has been entered when:

• The defendant has filed an acknowledgement of service or a defence;
• The time for filing the acknowledgement or defence has not yet expired;
• The defendant has made an application to strike out the claim or for summary judgment;
• The defendant paid off the whole claim, including any costs and interest, before judgment was entered;
• The defendant has filed an admission to the debt and asked for time to pay.

A default judgment entered in any of these circumstances is not valid in law and the court must set it aside.

Not sure what to make of this, does it allow for me to apply for set aside easier than if I had no filed anything?

[Don Quixote]

Re: Issue of Warrent of Control - CCJ on Statue Barred debt (Cabot)

Snap! Same stuff. Will look deeper when I get time – it’s not something I’m totally clued up on, so will need a refresher...

[Tristesse]

Re: Issue of Warrent of Control - CCJ on Statue Barred debt (Cabot)

Sorry Don we posted at the same time. I've looked up the Civils Procedures rules for this and it states:

(1) The claimant may obtain judgment in default of an acknowledgment of service only if –

(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
(b) the relevant time for doing so has expired.
(2) Judgment in default of defence may be obtained only –
(a) where an acknowledgement of service has been filed but a defence has not been filed;
(b) in a counterclaim made under rule 20.4, where a defence has not been filed,
and, in either case, the relevant time limit for doing so has expired.

So unfortunately it appears the default judgement could still stand as no defence was filed.

[FlamingParrot]

Re: Issue of Warrent of Control - CCJ on Statue Barred debt (Cabot)

Ok following on from that I've just done a google on the irregular default judgement and this has come up:

Irregular Default Judgments

The law distinguishes between two types of default judgments: “regular” and “irregular” judgments. A default judgment will be irregular if it has been entered when:

• The defendant has filed an acknowledgement of service or a defence;
  
• The time for filing the acknowledgement or defence has not yet expired;
• The defendant has made an application to strike out the claim or for summary judgment;
• The defendant paid off the whole claim, including any costs and interest, before judgment was entered;
• The defendant has filed an admission to the debt and asked for time to pay.

A default judgment entered in any of these circumstances is not valid in law and the court must set it aside.

Not sure what to make of this, does it allow for me to apply for set aside easier than if I had no filed anything?

As above, the judgment would be irregular if they had obtained it while you were still in time to file your acknowledgment or your defence.

Acknowledging gives you a further 14 days to file your defence, on top of the initial 14 days you have to start with. 5 days are allowed for service, so you get a total of 33 days to file a defence: https://www.justice.gov.uk/courts/no...sked-questions

How long do I have to file a response to my claim?

Counting from the date of issue -

• Acknowledgement of Service:
• 14 Days + 5 Days (service) = 19 Days. (An Acknowledgement of Service gives 14 days extra from the date of service to file a defence).
• Defence, without filing an Acknowledgement of Service:
• 14 days + 5 Days (service) = 19 Days.
• Defence, after filing Acknowledgement of Service:
  
• 14 + 14 + 5 = 33 Days in total.

Once your time is up, they can apply for default judgment as per CPR 12.13:

Conditions to be satisfied

12.3

(1) The claimant may obtain judgment in default of an acknowledgment of service only if –
(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and
(b) the relevant time for doing so has expired.
(2) Judgment in default of defence may be obtained only –

(a) where an acknowledgement of service has been filed but a defence has not been filed;

CPR 15.3 states:

Consequence of not filing a defence

15.3 If a defendant fails to file a defence, the claimant may obtain default judgment if Part 12 allows it.

Back to top

The period for filing a defence

15.4
(1) The general rule is that the period for filing a defence is –
(a) 14 days after service of the particulars of claim; or
(b) if the defendant files an acknowledgment of service under Part 10, 28 days after service of the particulars of claim.

(Rule 7.4 provides for the particulars of claim to be contained in or served with the claim form or served within 14 days of service of the claim form)

[Don Quixote]

Re: Issue of Warrent of Control - CCJ on Statue Barred debt (Cabot)

As above, the judgment would be irregular if they had obtained it while you were still in time to file your acknowledgment or your defence.

Acknowledging gives you a further 14 days to file your defence, on top of the initial 14 days you have to start with. 5 days are allowed for service, so you get a total of 33 days to file a defence: https://www.justice.gov.uk/courts/no...sked-questions


Once your time is up, they can apply for default judgment as per CPR 12.13:

CPR 15.3 states:

Thanks FP, thorough as usual and saved me digging it out.


I’m pretty sure I’ve seen a set aside granted automatically when an acknowledgment had been filed, but a defence had not, but of course there may have been other issues involved. The thread was in, er, another place. I might try and find it, as I’m only working on half a memory of it. There’s also the issue of judge discretion, so all might not be what it seemed. I’m aware of those bits of CPR, but when you cross link to the other bits, which you have kindly done, it can get confusing.


Tristesse, if you can get the set aside, you would still have 100% grounds for a defence if you can definitely establish it was statute barred when the claim was issued. Get those calls made to Next – don’t wait 40 days for an SAR. If judgment was 27 March (as you state it is recorded on Noodle), you should check and see if the default judgment was granted before it should have been. For this, you need to tell us the date of issue on the claim form – that’s the relevant date for calculating when a default judgment could be applied for. The claim date should not have been after 22 February or so – if it is after 22 Feb, then bingo. Possibly.


You can find out the date when you acknowledged by looking up the metadata/properties on your screen grab. That should also give you a clue.

[Don Quixote]

Re: Issue of Warrent of Control - CCJ on Statue Barred debt (Cabot)

Tristesse, any more facts and dates for us? Let’s keep it boiling!

[Tristesse]

Re: Issue of Warrent of Control - CCJ on Statue Barred debt (Cabot)

Good Morning Don,

Apologies for the delay had to work all weekend at short notice. Back in the office today, couldn't find the court papers at home which is frustrating (I would have put it somewhere for safe keeping), my wife's going to have a look today. In case it has been binned by accident can I email Northampton directly and ask for a copy?

I've completed the N245 this morning so that's ready for sending or failing that my wife can take it to the court tomorrow which might be a better option?

Cheers
Tristesse

[Tristesse]

Re: Issue of Warrent of Control - CCJ on Statue Barred debt (Cabot)

Sorry forgot to add I have looked at the screen grab of the acknowledgement of service and it appears I acknowledged on 14/02/15

[FlamingParrot]

Re: Issue of Warrent of Control - CCJ on Statue Barred debt (Cabot)

Good Morning Don,

Apologies for the delay had to work all weekend at short notice. Back in the office today, couldn't find the court papers at home which is frustrating (I would have put it somewhere for safe keeping), my wife's going to have a look today. In case it has been binned by accident can I email Northampton directly and ask for a copy?

I've completed the N245 this morning so that's ready for sending or failing that my wife can take it to the court tomorrow which might be a better option?

Yes, if she can do that it would certainly help avoid a visit from an enforcement agent. Let's get the warrant suspended first, then look at the set aside. You acknowledged the claim as you have said all along, what you need to show is reasons why you were not able to file a defence after that. I may be repeating what I said before but the two are separate issues, i.e. you can get the warrant suspended with a repayment offer which should keep the bailiffs away even if the CCJ is still on record. Set aside can be a lengthy process which usually requires a court hearing and that can be months away.

[Don Quixote]

Re: Issue of Warrent of Control - CCJ on Statue Barred debt (Cabot)

Personally I’d get those dates checked first – put your app in with full knowledge of the correct dates. But your acknowledgment date suggests the default judgment was probably regular.