Set Aside Old CCJ

[SivEd]

Hi there, I received a default CCJ a while ago and I am hoping to get it set aside. I've prepared my documents which I am hoping someone here can take a look at and advise?

I am trying to do this now because I am going to need a mortgage in the near future so I am hoping to improve my credit score, which is probably in the toilet. This CCJ is the only one I have, so I think to have this off my record would help my credit score enormously.

I have read a few threads on here and I am hoping I've understood enough to put the documents together, but I've certainly never tried this before so any advice would be welcome.

I have actually already settled the matter with the company involved (made an agreed payment) and if I can get the CCJ set aside they will not take further action.

Thanks in advance to anyone who can take a look

[Amethyst]

Morning

You received the original claim form? Did you not acknowledge or defend the case at the time? You don't seem to say in your application so far what the grounds for setting aside are, other than you've decided to defend?

So, did you receive the claim form?
What did you do with it?
Do you have the judgment order copy ? ( is it judgment in default ?)

Also, when did you settle it ?

Also (again), although it may be a moot point depending on the rest, did you accept the first job offer initially ?

[Amethyst]

Is this still about the same case? http://legalbeagles.info/forums/foru...ault-judgement

I intended defended the claim, sending in all the initial paperwork saying so, but because I was horribly busy, combined with having a written-off car causing me six hour a day commutes by bus, I (just) failed to get the second set of defence documents in to defend the claim. I actually had them prepared but didn’t send them in.

So in the end he got a default judgement. I actually didn’t think I could do anything about that and that the CCJ would have to sit on my file for years.

That was back in August 2016. Has nothing happened since then?

I'm afraid setting it aside is just not going to work and you'll just be throwing the application fee away. The Default Judgment was issued in early 2015? It will come off the register in early 2021 ( 6 years from date of judgment ).

You can get a certificate of satisfaction so the CCJ is marked as satisfied on the register and your file which might help if you are looking for credit/mortgages.

[jaguarsuk]

Firstly the heading of your Witness Statement contains your name, so you might want to amend that file.

The above questions are pertinent before moving forward, if you did not receive the claim form it changes how you can apply for the set aside and amkes it much more simple.

As it stands I'd change para 9 of your WS to read:

1. I recently became aware that {Employer} had obtained a default judgement against me, so I am attempting to set this aside under CPR Part 13.3(1)(a) in that the defendant has a real prospect of successfully defending the claim.

You should try to get their consent to set aside as this will lessen the fee you have to pay for the application.

[Amethyst]

There's not really any grounds to set aside Jags - claim form was received and acknowledged, judgement received at time and paid it off/settles it almost 2 years ago.

[jaguarsuk]

There's not really any grounds to set aside Jags - claim form was received and acknowledged, judgement received at time and paid it off/settles it almost 2 years ago.

Oh I didn't know that.

In which case you have no chance SivEd and if you applied would be just trowing £255 down the drain.

[SivEd]

Amethyst yes is it that case and yes it is now over three years old! I am a contractor and I am working away a lot, have been three months in Derbyshire preceeded by 3 in Germany, 6 in Edingburgh and 6 in Leeds. It's a chaotic lifestyle and I simply didn't have the time and/or access to information to deal with this. That's how I got the judgement in the first place, missed the defence deadline by a day (I had the docs done then too) and didn't know that I could get it set aside until 2016. I don't believe I deserve six years of CCJ and all that brings for not doing anything wrong in the first place.

I have the agreement of the original gent not to continue any proceedings if I get it set aside.

My original question actually was is there a time limit on setting aside a judgement. I guess there is?

jaguarsukThanks for the advice on the witness statement and noticing the name, I read and re-read those docs, must have missed a name somewhere, it was late. But is there no way I can get this set aside after this amount of time?

My grounds to set aside are that the guy had no legal right to issue a CCJ in the first place because people turn down jobs all the time, even after accepting them (which I actually didn't in this case). Also I never signed a contract because I was waiting on financial checks to come through on the other role, If I had a chance in court I would be able to contest that. But I'm not sure how to word all that legally?

Looking at: This National Debtline Link: County Court - how to set aside a judgment

It says the court MUST set aside a default judgement if you have "sent back the acknowledgment of service form within the time limit". Which I did.

The court must set aside the judgment in these circumstances, even if you do not have a defence.

Nothing about time limits? Am I reading that right?

I didn't pay off the debt directly, just made a payment to the guy to get his agreement not to contest if I applied for a set-aside. And that was about a year later.

Thanks for your help so far

[Amethyst]

You may have acknowledged the claim within the 14 days but that only extends the date by which you must file your defence to 28 days from service (33 from issue date). The claimant would have had to apply for the default judgment - - you likely could have got your defence in a day or two late .... maybe tell us the issue date - although working it out now may well be moot as it was so long ago and it'll be annoying if you were on time had you filed it.

If you had just found out about the judgment from 2015 now, like in the last month or so, because you'd checked your credit file maybe, and had never received the court claim, or had filed the defence but the court hadn't logged it - then maybe you'd have opportunity to set aside. But that's not where we are.

Im not sure if you have paid the judgment holder in full or a reduced settlement - yousay he's agreed not to take further action, if u paid I'm not sure what action he'd be taking - he has had the judgment since 2015 - I think u paid it in 2016 and we're now in 2018. You have it on the register for a further three years so you'd be best getting it marked as satisfied.

It it is only my opinion - have a read of the civil procedure rules - part 12 I believe is default judgment and set aside.

[R0b]

It says the court MUST set aside a default judgement if you have "sent back the acknowledgment of service form within the time limit". Which I did.

Yes that's correct, it falls within the mandatory grounds of setting aside a default judgment and if proved, the court has no discretion as to whether or not the judgment should be set aside. Can you prove that you sent the acknowledgment of service within the required time limit e.g. you have the email that you sent of proof of postage receipt or if the court acknowledged receipt within the time limit? If you don't then that argument is going to fall flat on its face as the onus is on you to prove.

Nothing about time limits? Am I reading that right?

There are no time limits per se in order to set aside a default judgment and indeed there appears to be nothing within Rule 13.2 of the Civil Procedure Rules suggesting that a mandatory set aside should be made within a certain period of time. However, I think a court would still have something to say about the length of time for the application.

However, CPR 13.3(2) which deals with a court's discretion to set aside judgment such as a real prospect of defending the case, does in fact state that in considering whether to set aside a default judgment, a court will take into account whether the application was made promptly. In your case, it doesn't seem that you've made an application promptly and I am not entirely sure that you working abroad is going to cut it with the court since there is the option of telephone hearings too. Anyway, I would suggest you look at the following link which gives a very detailed history of case law following the crucial Denton case on setting aside default judgments.

http://www.stjohnschambers.co.uk/das...m-Sanction.pdf

So on the face of it, I agree with others that you probably don't stand a chance and will likely be a waste of money. That being said, if you and the claimant can agree to set aside the default judgment and the claimant withdraws from the claim in the form of a Consent Order and each party bears their own costs, that might just be enough to get a set aside depending on the wording of Consent Order. For example, the wording of the Consent Order might say something along the lines of:

"Upon the Claimant and the Defendant having agreed that the Defendant had previously discharged his liability in full and final settlement arising out of this action

BY CONSENT IT IS ORDERED THAT:-"

It's not a guarantee but a Consent Order would reduce your costs and in order to bring the claimant round to agreeing this method, you could inform him that the normal costs rules apply to set aside applications and if it is successful you will be entitled not only to the costs of your application at £255 but also your litigant in person costs at a rate of £19 per hour.

All a bit of a risk, but that's your choice.

[Amethyst]

The defence wasn't filed R0b. As far as I am aware default judgment was obtained on that basis (Part 15.3 & Part 12), not on the basis of the claim not being acknowledged, however we need the dates. Date of Issue, Date of Judgment. If the default judgment was AFTER acknowledgment but before the final defence date there COULD be an argument if it was awarded on the basis of acknowledgment not being filed, but there is the knowledge, lack of promptness and that it's been settled to contend with.

[R0b]

The defence wasn't filed R0b. As far as I am aware default judgment was obtained on that basis (Part 15.3 & Part 12), not on the basis of the claim not being acknowledged, however we need the dates. Date of Issue, Date of Judgment. If the default judgment was AFTER acknowledgment but before the final defence date there COULD be an argument if it was awarded on the basis of acknowledgment not being filed, but there is the knowledge, lack of promptness and that it's been settled to contend with.

Ahh I see, then in that case yes dates will be crucial. But there is a valid argument in that a mandatory set aside, irrespective of time must be set aside. I have to admit I do read it that way and as far as I understand that has always been the case. If a judge were to reject it on promptness, that would be exercising discretion, contrary to 13.2.

Going back to my other point on the Consent Order, that could still be an option but whether a judge would accept it is a different story.

[jaguarsuk]

I don’t normally come on here at weekends, but my son is sleeping and bugger all on TV.

Has this judgement appeared on the OP’s credit file, have you checked?

As if the claimant never moved to the enforcement stage, while the court should have informed trust online after 28 days they don’t always!

If its not on your credit file and you have settled it then you don’t actually need to do anything!