Urgent help on CCJ - do I have a case for set aside?

[mystery1]

Hi there all,
I checked my credit report lately and it notified me that a CCJ was being filed against me by Lowell Solicitors. I haven't had any paperwork, and after calling the court and paying to see the CCJ register it has been sent to my old address. The action is being taken on a debt (a small student overdraft) that is over ten years old,

How long since you lived at that address ? If the court action commenced long after you moved then you need to ask the other side what action they took before using your old address as a last known address.



If they don't have a good trail of trying, and failing, to locate you they're pretty stuffed.



If a claim form has not been served then you are after CPR 13.2 i.e. a mandatory set aside.
http://www.justice.gov.uk/courts/pro...es/part13#13.2
Cases where the court must set aside judgment entered under Part 12
13.2 The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because–
(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied
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.
http://www.justice.gov.uk/courts/pro...es/part12#12.3
So what is the relevant time for filing an acknowledgement of service ?
http://www.justice.gov.uk/courts/pro...es/part10#10.3
The period for filing an acknowledgment of service
10.3
(1) The general rule is that the period for filing an acknowledgment of service is –
(a) where the defendant is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim; and
(b) in any other case, 14 days after service of the claim form.
(2) The general rule is subject to the following rules –
(a) rule 6.35 (which specifies how the period for filing an acknowledgment of service is calculated where the claim form is served out of the jurisdiction under rule 6.32 or 6.33);
(b) rule 6.12(3) (which requires the court to specify the period for responding to the particulars of claim when it makes an order under that rule); and
(c) rule 6.37(5) (which requires the court to specify the period within which the defendant may file an acknowledgment of service calculated by reference to Practice Direction 6B when it makes an order giving permission to serve a claim form out of the jurisdiction).
If the claim form was not served (or validly served as some may put it) the time limit for acknowledging service has not begun. If it hasn't begun it can't have expired. If it hasn't expired mandatory set aside. No need for defence etc.
http://www.bailii.org/ew/cases/EWCA/Civ/2016/71.html
Moreover, I do not consider that the CPR presents an obstacle in the circumstances of this case to setting aside judgment. CPR 13.2 provides that the court must set aside a default judgment where any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied. The latter provision does not apply, but the former is relevant. CPR 12.3(1) states that a 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 and (b) the relevant time for doing so has expired (my italics). I accept Mr McLaren's argument that, when an order for retrospective validation of an alternative method of service has been made pursuant to CPR 6.15(2) the relevant time for filing an acknowledgment of service is the period which the court must specify under CPR 6.15(4)(c). Where, as in this case, the court did not specify any such time there can be no relevant time which has expired for the purposes of CPR 12.3(1). If this analysis is correct the requirements of CPR 12.3(1)(b) have not been satisfied and so the court is obliged to set aside the default judgment pursuant to CPR 13.2(a).
I do not see it as a draconian consequence that a judgment, obtained after deemed service has been effected without specifying a time for that service to be acknowledged, should be set aside as of right in such a case. I agree that CPR 13.2 specifies the circumstances in which a default judgment must be set aside and in my judgment one of those circumstances is when judgment is entered in default of an acknowledgment of service when "any of the conditions in rule 12.3(1)…was not satisfied". Here one such condition was not satisfied, namely the time for acknowledgement of service had not expired, because none had ever become applicable.
This, to my mind, is not "playing technical games" (c.f. the passage from the Abela case, cited at paragraph 11 in the judgment of Longmore LJ). It is merely applying the principle that due process should be followed. If a defendant has never become under a valid obligation to acknowledge service, either as specified under the rules or by order of the court, I do not see how it can be that a judgment can be entered against him in default of such acknowledgment. He is simply not in default at all.


M1