Won by default - application made 5 weeks later

[Daryl32]

Hi LB, great forum,

Long story short - took my insurance company to Court 12th October for the outstanding balance on a claim that they deny I am entitled to.

Emailed the claim form/POC directly copied from MCOL to their solicitor that same day - I had previously been in correspondence with her. Three days later she emailed me to confirm that her firm was instructed to receive service.

With no acknowledgement of service lodged, I was awarded default Judgement on 4th November.

Emailed this lady beginning of December to ask where was the payment? No response.

Emailed again end of last week to tell them I was enforcing the Judgement on Friday evening, as the money is needed for living expenses in January, and the money I have atm is to spend on Christmas. Times are tight.

An automatic response back told me she was on annual leave. Emailed her colleague instead asking him to deal with it. He emailed me to tell me he was taking instructions from his client, and I emailed him back giving him until end of Monday.

Yesterday, get an application asking to remove the Judgement. They paid £255 according to the paperwork, when the total claim awarded is £550!

I am furious. Emailed him back to tell him my Christmas will be ruined as this money is being used for that, and to confirm they are not proceeding with the application or I will hold his firm and his client fully responsible.

The claim was made to the right entity, for sure. They were mailed both the initial claim and then the Judgement. I also emailed the claim to the lady at the law firm the same day it was started.

Yet their claim states their client has no knowledge of it.

Is this timely? I would have thought they could not ask for relief when it is six weeks after Judgement would have been deemed served?

They have also paid £255 against a total claim of £550.

Surely this is not proportional?

Would love to hear your thoughts as I am not exactly legal savvy. Would appreciate any help and advice

Merry Christmas all!!!

[ostell]

So did you direct the claim to the insurance company? It seems that you only contacted their solicitors.

[Daryl32]

No it was sent to the insurance company. By MCOL.

[des8]

So besides thinking that they have not acted quickly enough, what is their defence to the original claim? Does it have legs?

[Daryl32]

Well, they have completely rubbished my claim, and as to the substance, it looks more like they have hurried their statement because they are in a rush - it is a blanket denial and rubbishing of my POC, stating there is no legal basis. There is - negligent misstatement. They know this. But really, I am wondering more than anything whether their claim to have acted "as soon as they knew' is acceptable, given that the Court sent the POC and thee Judgement to the proper address for their client, and I emailed the POC to their firm. I read elsewhere that promptly is 2 weeks, maximum 4, and that they cannot claim to be exempt from this because 'Royal Mail are to blame'

[des8]

trouble is everyone shouts "covid" as a reason for delay and it seems to be accepted everytime!

[Daryl32]

Hmmh. 2nd lockdown was 5th November to 2nd December. They can't claim to have not seen either the POC before the lockdown started, or the Judgement in the three weeks since it ended. Forgetting Covid for a second, anyone have any case studies for what is considered 'prompt?'

[Daryl32]

Anyone have any idea about case studies or precedent for what is "promptly?"

I called this company yesterday, recorded the call. Their offices were staffed during both lockdowns. Also, the service address I used, from Companies House, is not their head office - it is a sales office.

[ploddertom]

OK, you may not like some of what I am going to say but it is what it is.

Firstly you should just have gone ahead with enforcement if you had Judgment. As your Claim was £550 then with enforcement fees it would have taken it over £600 and you could have used a HCEO.to enforce it. You say they have paid £255 against the Judgment - sorry to say but this is the cost of them submitting an N244 application - probably to have the Judgment set aside. This could take 6 months to hear in the present climate.

As for them submitting promptly then that may be for a Judge to decide when the merits of everything are looked at and may well be allowed. Unfortunately you will just have to let the legal processes commence - however long that may be - unless of course the Defendant decides to cough up voluntarily if you drop the action.

[Daryl32]

ploddertom K, so the £255 they paid was for the application, not against the Judgement. Does that change things?

Also, I was under the impression that, had I enforced, they could have made the application in the interim between receiving the enforcement order and actual bailiffs? Is there a difference when it comes to HCEO's?

[ploddertom]

Just come in, I'll respond later this evening.

[ploddertom]

ploddertom K, so the £255 they paid was for the application, not against the Judgement. Does that change things?

Also, I was under the impression that, had I enforced, they could have made the application in the interim between receiving the enforcement order and actual bailiffs? Is there a difference when it comes to HCEO's?

The Judgment amount is still the one that needs to be paid. There is a possibility that should they be successful in their Set Aside application that they may ask for the application fee (£255) to be refunded to them by you. Your argument against this is the "excessive" delay in them applying for this - but you should receive a copy of their application to see what is in it and/or whether their application has any merit.

You are correct in your interpretation of what may have happened should you have enforced but imagine you would just have used the County Court Bailiff and paid £110 for the privilege. To use a HCEO Judgment needs to be for more than £600, as yours is for £550 it is a little light but the cost of the application for a Writ of £66 can be added to this taking you comfortably into their zone. The same as any other Bailiff they have to send a Notice of Enforcement to the debtor which can alert them to what is going to happen but what a lot fail to realise is that the Writ is a High Court order which then trumps any application for Set Aside or Stay of Execution that is made in the lower County Court - only if the Set Aside/Stay has actually been granted will it halt HCEO action + don't forget they have the power to force entry to business premises if need be.

[Daryl32]

ploddertom could I still enforce despite a bar being put in place by the lower Court/CCBC on MCOL? With the £77 fee, I then do the HCEO thing?

[Daryl32]

ploddertom ?

[ploddertom]

As you are already aware of their application then I would say no.