Threat to Set Aside Judgement

[Trevor1976]

Good Afternoon,

I'm looking for some advice please regarding a claim myself and my wife have against an appliance retailer for a faulty washing machine.

A brief summary:

We contacted the retailer via email and they fobbed us off.
We paid for an independent inspection and the inspector told us that the product was unsafe and defective.
We sent a letter before action by recorded delivery and they ignored us.
We sent another, just to make sure, again signed for but still they ignored us.
We started a small claims court claim and the retailer didn't respond so we were given a default judgement.
We have asked the retailer to make payment but they have not replied.

Today we have received a letter from the retailer offering to make the payment but only on the condition that we agree to withdraw the claim. Not only that, but they say that if we refuse then they will apply to the court to have the judgement set aside on the basis that "They didn't receive the letter from the courts" (which I'm sure is nonsense). The letter goes on to say that if they win at a subsequent hearing they will push for a costs award on the basis that we would have been unreasonable not to accept this offer.

This sounds pretty outrageous to me but is it a common thing for a company to do? Can a company really have a judgement set aside just by pretending not to have received the courts letter?

The other issue I have is that if I were to accept their proposal, they want us to sign a form that they have provided which states that "we agree to dismiss the claim upon both parties agreeing to confidential terms of a settlement". How will the court know if and when both parties have agreed? Will the court contact us? The company says they will hold the document to our order and then counter sign and file it once the payment has been made. What does this mean? My concern is that they may file the document with the court, not pay us and then continue to ignore us.

Does anybody have any suggestions as to what we should do?

Thanks

Trev

[PallasAthena]

I'm tagging atticus who may be able to help you with this.

Can you tell us (approximately) how much the court awarded you.

I don't understand how they think you can 'withdraw the claim' when it has already been to court and you have a judgement in your favour, a judgement you could now enforce. Or is their proposal that if they get the set aside you agree not to pursue the claim in return for an out of court settlement?

I wonder why they are so keen to cover any out of court settlement with a confidentiality agreement? To try to avoid publicity about them selling a defective and unsafe product?

This is not a common situation and they do seem to be keen to stop you giving negative feedback about them on social media.

You say you sent an LBA by Signed For post. Does the Royal Mail tracking system confirm they signed for it?

They are not in a strong position to say that they will "make the payment but only on the condition that we agree to withdraw the claim". The court has already ordered them to pay the claim and if they don't pay it within 30 days of the judgement date a CCJ will against them will go on the public record.

Bear in mind that even if they were successful with a set aside application all that does is move the court procedure back to the beginning and if your case is strong you might win again anyway! A set aside doesn't mean they have "won".

[Trevor1976]

Thanks Pallasathena,

The wording on the document is that I should consent to the judgement being set aside and the claim being dismissed.

The total judgement is worth just over £1,000.

All of the letters we have sent them were all signed for including photographic evidence.

Regarding the set aside, the company is suggesting that I will be acting unreasonably if I refuse this offer and that (in their opinion) it leaves me open to having to pay their costs if I lose at a hearing, which obviously raises the stakes quite a bit. Is there any truth in this?

Thanks,

Trev

[atticus]

People like to suggest all kinds of things to try to intimidate. Are these people using solicitors?

Does the amount offered include your court fee?

[Trevor1976]

Hi Atticus,

Yes they are using a solicitor and yes that figure includes the court fee.

Thanks

[atticus]

If the letter is from the solicitor and not from the retailer as you have said, then you have the solicitor's binding professional commitment to pay you before filing the signed document with the court.

Can I suggest that you post the exact wording of the solicitor's letter (names removed) so that we can advise you on the reply.

[pc52straw]

Some folks are weird. Why wouldn't they just pay up and ask for confirmation, then get a certificate of satisfaction, if they broadly agree to pay it?

If you do decide to accept, definitely ensure that they receive the confirmation by post (signed recorded) AND by email, state that the arrangement is based on their written offer to settle the debt.

I'd like to know from the experts if it's also worth stating

1. That you expect written confirmation by email or post, from them, of these terms before you will inform the court of your decision to set aside.

2. That you cannot guarantee the latency at court won't leave the ccj visible for weeks if not months before their set aside application is dealt with.

3. That it'd be significantly cheaper and less risky to pay the order within 30 days and get a certificate of satisfaction confirming the ccj isn't registered.

[Frank1]

According to LexisNexis a Tomlin Order can be used to set aside a court judgement If after the order has been signed, lodged with and sealed by the court, it is breached by either party then the other party can refer the breach with the court.