Terms of the consent order..... Any help highly appreaciated

[Fizzy888]

Hello and thanks for your time.

Further to kind advice of a member of the forum, i asked the claimants solicitors to consent to set aside 2 separate CCJ's (for 2 Barclaycards taken out in November 2004) issued on the 13.09.19. the claimants solicitors have agreed to consent as i was not living at the address they sent the documents to and i have attached a copy of their terms below. could someone kindly review the terms and tell me if the terms looks alright?

Also i have asked the claimants to provide me a copy of CCA's, statements and other documents etc but so far they haven't provided me with anything as they claim they are not obliged to provide these documents once CCJ is issued, so what would my defence be without these documents as they state in their terms that defence to be filed in 14 days.

Also they want me to cover the cost of hearing and set aside application, could someone tell me what the cost of hearing would be?

i would be grateful if someone could advice me on the above and next steps i need to take..

[Amethyst]

The consent order seems fine, and states no order as to costs in respect of this application. This basically means you can make an application by consent ( court fee of £100 ) on form N244 enclosing a copy of the signed ( by yourself and the claimant) consent order - this should be without a hearing - and once the court signs off on the consent order the judgment is set aside, and you can then go back with your CCA request and request for other documents.

Or have the claimants said they will lodge the order with the court? and asked you to pay them the £100 ?

Do you have a defence to the claim ? Could the debt have been statute barred before the claim was issued ( default / last payment before mid August 2013 ? ) ?

N244 is https://www.gov.uk/government/public...ication-notice

[Fizzy888]

Thank you for your response AMETHYST.

below is the what they sent in the email.

"We refer to your email of 19 September 2019 and attachments.



Our Client has instructed us to consent to the Default Judgments entered on 13 September 2019 being set aside in accordance with the terms of the attached orders.



A consent order is a written agreement between our Client and you to be sent to the Court to formally set aside the Judgment as you have requested.



Should you be in agreement to the terms of the Consent Orders, please sign both where indicated and file at the County Court Business Centre. Since the consent order is in relation to your application, you will then need to send the signed order to the Court with a covering letter requesting that the Court grant the order. A fee of £100.00 is payable per order.



You may file the consent orders at court by email to ccbcfees@justice.gov.uk, and contact the Court on 0300 123 1056 to pay the fees by debit card. Alternatively, you may post the consent orders with a cheque made payable to ‘HMCTS’ to:"

[R0b]

Whilst the consent order in principle looks ok and reasonable, there's a few points you might want to consider.

a. Have you got a copy of the original claim form with the particulars of claim and if so, are they sufficiently detailed for you to know what you are up against? If you don't have a copy or they are not sufficient then you could incorporate into the order that Hoist file and serve detailed particulars setting out the basis of its claim.

b. There's no reason why Hoist should not be able to provide you with the documents because, presumably they should have sufficient information within their possession to know they have a valid claim, otherwise it could be an abuse of process. If I were in your position I would want to have the requirement for them to provide the necessary documents within X days (maybe 28 days) otherwise their claim be struck out.

As for their argument about not having to provide the doucments because they have obtained a CCJ, I'm not sure about that. Assuming you made a request under s.77/78 of the CCA the provisions state that the requirement to provide information does not apply to:

(a) an agreement under which no sum is, or will or may become, payable by the debtor, or

(b) a request made less than one month after a previous request under that subsection relating to the same agreement was complied with.

Failure to comply means the creditor cannot enforce judgment, and maybe Ame can correct me if I am wrong but isn't there case law on the meaning of enforcement? My initial reading is that it does not prevent a creditor from getting judgment but if it failed to comply with the CCA request, it cannot enforce that judgment until such a time it complies - or maybe it's a point yet to be tested in court.

c. Just for clarity, I would have separated the actual order and the directions of the court. For example, it should really read something like:

BY CONSENT IT IS ORDERED THAT:

1. The judgment entered on 13 September 2019 ...

2. The registration of the judgment be cancelled.

AND THE COURT MAKES THE FOLLOWING DIRECTIONS:

3. Within 14 days of the sealed order, the Claimant file and serve detailed particulars of its claim against the defendant ...

4. The Defendant shall within 14 days of receiving the Claimant's detailed particulars of claim, file and serve a defence.

5. Insert any other further directions as necessary.

There's no hard and fast rule about consenting to this but you do at least need to understand the claim and what the defendant is relying on as to the basis of its claim.

The wording of the consent order at the beginning could suggest that they didn't carry out any reasonable searches to ascertain your last known address and that should be an automatic set aside if the case, in which case they should offer to pay the £100 fee. Of course whether you agree to pay or not is entirely up to you to decide.

Have you actually issued an application to set aside the claim or is this just initial contact.

[Fizzy888]

Re Defence: i am not too sure but i was told that i made them last payment through debt management company in September 2014. i read somewhere that barclaycard are more likely not to have the CCA and correct documentation.

i am happy to pay the debt (£4700 for both cards) as long as they have the correct documentation. Do you reckon its a good idea to agree to a settlement amount once they have produced the correct documentation before the hearing after the ccj has been set aside by consent?

[Fizzy888]

Hi Rob

a. Have you got a copy of the original claim form with the particulars of claim and if so, are they sufficiently detailed for you to know what you are up against? If you don't have a copy or they are not sufficient then you could incorporate into the order that Hoist file and serve detailed particulars setting out the basis of its claim.

I do not have the original claim form as they were sent to incorrect address, shall i pay the court £10 fee to get these documents? court told me over the phone that they did no supply any additional documentation when they made their application i presume they simply filled in the application form online.

b. There's no reason why Hoist should not be able to provide you with the documents because, presumably they should have sufficient information within their possession to know they have a valid claim, otherwise it could be an abuse of process. If I were in your position I would want to have the requirement for them to provide the necessary documents within X days (maybe 28 days) otherwise their claim be struck out.

i have requested the documents last week but told that they do not have the documents and have requested it from storage or something. does the requirement to supply these documents needs to be on consent form or when i file the defence .

shall i draft a new consent order with above points you mentioned and send it to them to sign? what if they do not agree

this is the initial contact i haven't filled or sent the application form yet, i want to ensure everything is in order before i send the application hence why asking for your kind opinion on the forum

i am on the phone to court now to request a copy of the claim form and particulars of claim ans will upload them here as soon as i have them.

[R0b]

It's really down to you as to what you agree/don't agree and what you want to achieve.

Obviously you can't go reply and say I want XYZ without sufficient reason and until you see the particulars of claim, you can't say that they are crap and non-compliant, though I bet you bottom dollar they aren't that great.

Did you make the request with the £1 payment with reference to the CCA provisions or was it a generic request? You can add it to the consent form or not and it is entirely within Hoist's remit to reject anything you intend to amend/add to the Consent Order. That said, they would need a good reason not to agree to it because you can then make an application and ask the court to make an order on your behalf - if it does, then Hoist could be seen as being unreasonable and wasting costs which they should reimburse you for your time and expenses.

Get the POC first and then take it from there. If need be, send a holding email to say you are considering their proposals and will respond in due course.

[Fizzy888]

Hi Rob

i have asked the court to send me POC and a copy of the judgement, i was told they are still dealing with 16th September requests so looks like there will be a 8 day waiting time. since i am required to react promptly do u suggest i wait for it or send the application based on the information i have. (ccj's issued 13.09.19, i found out about them on 18.09.19 through clear score and have been speaking to court, claimant and their solicitors since).

Re: CCA request ; i emailed them with CCA reference and told them i am happy to cover the cost of them producing the documents and they should tell me how they would like me to pay them. is this sufficient enough?

[R0b]

Hoist's solicitors should have a copy of the claim form and it is not unreasonable for you to ask them to send a copy by email. They shouldnt refuse or ignore you as that is not the spirit of the Civil Procedure Rules, particularly the overriding objective and you can warn them that a failure to comply would mean issuing an application to set aside and seeks a costs order for unreasonable conduct in failing to provide the claim form without reasonable justification.

As for the CCA request, I think you need to accompaaccthe request with the £1 either in cheque format or a postal order. Your CCA letter should make it clear that the £1 is only to be used for the purpose of s.77/78.

I dont think it is going to be fatal if you wait another 8 days bit if you can show steps were taking to be prompt then it should all go in your favour.

[Fizzy888]

Many thanks for your detailed response Rob. Noted and highly appreciated.

[Fizzy888]

Hi ROB/AMETHYST

The claimants have agreed to pay for the £100 set aside fee but refused to change the particulars of the consent order e.g

"3. Within 14 days of the sealed order, the Claimant file and serve detailed particulars of its claim against the defendant ...

4. The Defendant shall within 14 days of receiving the Claimant's detailed particulars of claim, file and serve a defence."

they have attached the following consent order, could you please tell me if any of the particulars may go against me, also if you could kindly tell me what the point number 8 means?

[R0b]

Well it's up to you if you agree to their refusal, you can always go back to them and say it's not sufficient for you to file a defence against particulars you don't have or ones that are insufficient and in which case you'll take your chances of making the application yourself and recovering costs. Otherwise accept their position on that.

As for Paragraph 8, it basically means that costs are reserved until the outcome of the final hearing. If they are successful, they can recover their costs of this application and vice versa.

That paragraph 8 has of course been changed from no order as to costs to costs in the case so its up to you whether you want to accept that position or not.

[Fizzy888]

Hi Rob,

Further to above posts, rather then claimant consenting to set aside judgements and even them agreeing to pay the court fees, i decided to offer claimant 50% of the outstanding balance, which they have agreed to and sent me the following Tomlin order. could you kindly review the order and tell me if it is ok?


"TOMLIN ORDER







UPON the parties having agreed terms of settlement



BY CONSENT IT IS ORDERED THAT:-



1. Having agreed to the terms set out in the schedule hereto, all further proceedings in this matter be stayed except for the purpose of carrying such terms into effect;



2. The Claimant be at liberty to apply for judgment to enforce the terms of the order;



3. There be no order as to costs.



Dated this day of 2019



We agree to an Order in the above terms.



………………………………. ………………………………


SCHEDULE



1. This Schedule records the terms agreed between the parties in full and final settlement of the claim under claim number XXXXXXXX



2. The Defendant do pay to the Claimant the sum of £850.49 (the ‘Settlement Sum’) in full and final settlement of the claim by way of a singular payment of £850.49 (the ‘Payment’).



3. The Payment is to be received within one month of the sealed Order.



4. In the event of default by the Defendant in making any of the said payments by the dates agreed, the whole outstanding debt shall become immediately due and the Claimant shall be at liberty to enter Judgement for the balance outstanding at the date of default.



5. Upon payment of the above mentioned sums and costs the Defendant be discharged from any further liability in respect of the Claimant’s claim herein.

[R0b]

Sorry I'm confused.

You have a default judgment but you no longer want to set aside the judgment and instead agree to pay 50%? You do realise that you'll be stuck with the CCJ on your credit file for the next 6 years, or am I missing something?

[Fizzy888]

Rob,

i would like to set aside the judgement that was issued in default so the ccj does not appear on my credit file for 6 years.

if i apply to set aside the judgement by consent, i will still be required to file defence, and as things stand (even though the claimant have still not supplied any documents as requested) my defence would have been to hope the claminats do not have the correct paperwork but if they do i will be liable for the debt plus all their costs.

if i sign the tomlin order and send it off to court, will the CCJ not be set aside and taken off my credit report?

i want the CCJ off me credit file at any cost. what do you think is the right approach?

Below the copy of the covering letter the claimants sent with the tomlin order

---------------------------------------------------------------------------------------------------------
Balance: £1,907.97 (£1,700.97 + £207.00 Fees/Costs)



We refer to the above and in particular our telephone conversation exchanged on 27 September 2019.



We now write to confirm that in an effort to bring this matter to a satisfactory conclusion without the necessity of further costs or further Court action our client is prepared to accept payment of £850.49 offered by you should this still be affordable, subject to a Tomlin Order.



The Court charge a fee of £100.00 in administrating the Tomlin Order and we can confirm that this will be paid by the Claimant.



We can also confirm that a Tomlin Order is an agreement without a county court judgment being made between the Claimant and yourself, therefore, there will be no public information registered against you upon the county court judgment register in respect of this claim.



We therefore enclose a Tomlin Order for your consideration. If you agree to the terms upon the Tomlin Order please sign and return to this office by 14 October 2019, so that it can be lodged with the appropriate county court.



We trust this now clarifies the position and look forward to hearing from you within 14 days.