CCJ set aside with consent letter - HELP ASAP

[Michilli26]

Hello,
I am asking for help regarding applying to have my CCJ set aside (ideally with consent). I have delayed this too long already due to spending time researching, seeking solicitor quotes etc and cannot delay much further. I shall post my draft letter I am planning to send to the parking company requesting for their consent order. Can I have any feedback if this is okay? anything to add/take out etc? Would be much appreciated. it is quite long. Thank you!.

URGENT – Application to set aside CCJ with consent
Re. CCJ authorised 8^th of July 2019 – case number [xxxx]

I am writing to request for my CCJ issued on the 8^th of July 2019 for the amount of £255 to be set aside with consent, settled and withdrawn. On Friday the 23^rd of August, I set up an Experian Credit-Expert account which enabled me access to a full credit report. It was to my shock that I had an alert that I had been issued with a CCJ on the 8^th of July 2019. I understand this is a common request you may receive but I would appreciate if you read my circumstances fully and provide your consent on the basis of evidence of CPR Part 12 with a real prospect of defending the claim and the overriding objective under Part 1 alongside Part 12 other good reasons why.

I contacted Northampton County Business Services for more information about this CCJ whereby they provided me details that it was a default judgement against me (the defendant) for a PCN dated 12^th of October 2017 from One Parking Solution (yourselves).

I contacted One Parking Solution to find out what information you had relating to this PCN as I did not know anything about this and thought it was a mistake. On the 10^th of September I was sent photographs of my car in the car park where the contravention period was for 17 minutes without a ticket. The photos I was sent displayed my car with a notice put under my window screen wiper which to my honest held belief I do not recall receiving when I returned to my car as I know I would have responded and paid the fine. However, the photo’s also showed I was issued with a letter to my old address which stated the letter could have been received as my first attempt anyway.

The address linked with this PCN was: [xxxx] and I moved to [xxxx] on the 22^nd of October 2016 (a year prior). I had set up a Royal Mail re-direction service for the change of address which enabled time to change all addresses and to receive any letters and this was active until April 2017. Although this is prior to my PCN date I am highlighting I take precautions to ensure I receive paperwork and complete my address changes so items are not lost in the post.
Nevertheless, I promptly notified DVLA of my change of address for my photo-card on the 31^st of October 2016 and also believed I updated my V5 log also. I am no longer the registered keeper of the car in question therefore contacted DVLA and on September the 16^th 2019, I received confirmation I changed the V5 address on the 15^th November 2017. So, this was my genuine mistake that I totally forgot about this part due to having a busy schedule at the time with working and university whilst suffering with anxiety and depression (I have doctors records to evidence this). The V5 change of address was updated promptly with my latest house move highlighting this prior move was clearly not a good time of my life that I had not completed it time efficiently.
The V5 displaying the incorrect address would explain why I did not receive any PCN paperwork and was not given a chance to pay. I was also non-receipt of a claim form which also appears to have not been sent in my previous email correspondence so I believe there was a chance I was not even sent this (even to the wrong address). This is unlawful and regardless I did not have any chance to defend myself or pay the fine. Under civil procedure rules, there could have been reasonable steps to ensure the correct address was used if a defendant does not respond for a sustained period of time before issuing service court claims and meanwhile all my other banking and bills were up to date.

I pride myself in ensuring I have a good credit rating, keeping on top of paperwork and manage and pay bills in a timely manner. Therefore this CCJ is embarrassing and appears out of place with my credit history and personal conduct (CPR – Part 1). I can assure you I would have paid the debt had I known about the PCN in question as the amount of money involved was not of a high cost and therefore I could have made the payment of the reduced £40 fine. I am an organised person and I have been working hard to keep my credit in good order in hope of a mortgage. My current home circumstances unfortunately means that I will need to move out next year which was the reason for re-opening an Experian account when I noticed the CCJ which will now have a serious impact on this.
I have been under my GP since 2015 with depression and anxiety and of late have been on a university course interrupt for a year due to generalised anxiety and adrenal insufficiency physical health implications which I am now trying to manage. I am in the process of re-joining university and this is an event which is very stressful and upsetting for me and I feel like is setting me back with my anxiety again alongside my ability to handle stress is impaired anyway due to adrenal insufficiency. My limited time and lower financial position re-joining as a student means I would like to settle this in the quickest and most justified way possible whereby both parties are happy.

Under Part 1 of the CPR, the removal of the CCJ means a lot to me and my future circumstances for myself and my family. I was parked for a short period of time without a ticket and the amount of the fine is a small amount which therefore a CCJ feels out of proportion to the amount of money involved for the life impact this will have on me alongside the implications it is having on my health.
The CCJ has only recently been issued meaning I have the 6 years ahead of me with this impacting any sort of credit and future finance job roles as I have achieved an accounting qualification which is a potential future career prospect. I honestly believe I did not receive the PCN displayed on the window screen and furthermore I did not receive any paperwork or claims pack. It was sent to an old address which I had moved from a year prior so I was not given a chance to defend myself or pay the fine which under CPR Section 12 I feel I should be entitled to.
I feel I have good reasons and a reasonable prospect of successfully defending the claim which I understand means that if the court grants my application to set aside I shall be entitled to the application fee of £255 and the costs of preparing it at a rate of £19 per hour from yourselves.

However, in light of wanting to come to a swift agreement to settle the case justly with proportionate costs in a timely manner whereby both parties are on equal footing. On receipt of signed consent I shall file this to the court myself and I am willing to pay the £100 consent fee. I would like the CCJ set aside and following this being processed by the court I am willing to pay an outstanding balance of £100 to yourselves to settle the fine fully and have no further correspondence and orders.
In line with acting promptly I cannot delay to make the set aside application further therefore please respond within the next 5 days if you confirm your consent or refusal. I feel it is in both our best interests to settle the fine justly in this way as it is in proportion to the case and the amount involved.

Yours faithfully,
[xxxx]

[R0b]

I have emailed the claimant and had a positive response where they agreed to give their consent and directed me to their solicitors (Gladstones) for the paperwork. I phoned Gladstones as per the instructions whereby they instructed me I needed to pay the £100 consent order fee and £100 fine (this was what I had offered to pay in order to set aside and settle the PCN in full).
I am more than happy to pay this however they instructed that I needed to pay this £200 upfront and then they would send me an email consent order a few days later. This did not sit well with me as I am wanting to set aside a CCJ and do not want a satisfied CCJ and therefore I did not think this is correct to pay the fine before the processing of the set aside.
Alongside this, they refused to email me any sort of contract of terms and conditions or draft order so I do not have their consent and proof that they have agreed to give me this once I make payment
They also instructed me that they will file the N244 form whereby I wanted to send this myself and make the payment.
Is this okay to allow them to send the N244 form if I pay them only the £100 and hope they then provide the consent order? Or should I gain a drafted consent order before making any payment? I emailed again asking for this on Friday 8th and have still not had any response and I am aware I need to act promptly.

Any advice would be much appreciated.

Responding to the above PM you sent me.

It is up to you whether you want to agree to what they have offered.

Whilst it is possible for claimants to set aside a default judgment, it is not normal practice and I would generally advocate the party in default to make their own application as they will be in control of matters. Also, I would say you are quite right to question why the money should be paid upfront because that is akin to admitting liability and then attempting to "credit wash" your file with the removal of the CCJ.

I can understand why Gladstones and the like might want to do this and ensure they get paid but it's bad practice in my view. Still, that won't change the way they operate. Like I said, however, it's really up to you and how you want to go about it and if I was in your shoes, I would be insisting on doing it myself and telling them that I would be prepared to put in the Consent Order that payment of X amount will be made within 14 days of the court approving the Consent Order, otherwise there is liberty to apply for judgment for non-payment.

That would be the right way to go about it and I would point out that if they refused then you will make an application and therefore any Consent Order would need to include repayment of the £255 application fees you made. That puts the ball in their court.

Equally, there's others on here that have bowed down to Gladstones' demands and have had their consent order set aside but it's still risky, and I am aware on several occasions that certain judges have rejected the Consent Order as an attempt to clean up one's credit file.

If you are prepared to submit an application it's not clear whether you've already prepared this, but if not, then you could write to them again and say you've not had a response and unless the Consent Order in the form attached to your email (you should attach your draft version), then you will issue an application without notice and seek costs.

Otherwise, if you agree to their terms I would suggest having the Consent Order signed first before you make any payment. Once you've paid before the Consent Order is signed, there's nothing stopping them from ignoring.

[Michilli26]

Responding to the above PM you sent me.

It is up to you whether you want to agree to what they have offered.

Whilst it is possible for claimants to set aside a default judgment, it is not normal practice and I would generally advocate the party in default to make their own application as they will be in control of matters. Also, I would say you are quite right to question why the money should be paid upfront because that is akin to admitting liability and then attempting to "credit wash" your file with the removal of the CCJ.

I can understand why Gladstones and the like might want to do this and ensure they get paid but it's bad practice in my view. Still, that won't change the way they operate. Like I said, however, it's really up to you and how you want to go about it and if I was in your shoes, I would be insisting on doing it myself and telling them that I would be prepared to put in the Consent Order that payment of X amount will be made within 14 days of the court approving the Consent Order, otherwise there is liberty to apply for judgment for non-payment.

That would be the right way to go about it and I would point out that if they refused then you will make an application and therefore any Consent Order would need to include repayment of the £255 application fees you made. That puts the ball in their court.

Equally, there's others on here that have bowed down to Gladstones' demands and have had their consent order set aside but it's still risky, and I am aware on several occasions that certain judges have rejected the Consent Order as an attempt to clean up one's credit file.

If you are prepared to submit an application it's not clear whether you've already prepared this, but if not, then you could write to them again and say you've not had a response and unless the Consent Order in the form attached to your email (you should attach your draft version), then you will issue an application without notice and seek costs.

Otherwise, if you agree to their terms I would suggest having the Consent Order signed first before you make any payment. Once you've paid before the Consent Order is signed, there's nothing stopping them from ignoring.

Thank you very much for the reply R0b
I have been searching for a draft consent order template and the link which you posted before on a main page does not work. I have been browsing other people's threads and the wording was confusing me a little as everyone's case is slightly different so that is why I held back on that part and have been trying to get Gladstones to draft a consent order. If you could post me a draft template and what should be in it that would be really great and I can try sending that to them. However, they do not seem to want to have any contact in written form and only talk on the phone.

I would like to submit the N244 application myself but I do not think Gladstones will allow me to do that. By all means, I will carry on insisting to do this myself. However, worst way are you saying I should not give them any money at all until I have at very least a draft consent order or signed consent? As I was thinking my best bet is to first pay them the £100 court processing fee as they appear to not want to do anything without money first. Then hopefully they will provide the consent order for me to sign and then allow them to submit the application. One of the points I would definitely like in there is that I shall not pay the fine payment until 14 days of the court approving the consent order so that I do not run the risk of a satisfied CCJ.

This process has been very stressful so far trying to do this on my own and spending hours researching and trying to understand it so I really appreciate your reply and any help you can provide. Thank you

[R0b]

https://legalbeagles.info/forums/for...t-of-templates

See section 8 on the above link, I've added an example N244 application form, witness statement and draft order to set aside a parking ticket.

You will need to complete these appropriately and amend the witness statement as necessary.

As for the draft order, you will probably want to make some changes as per below.

1. You may want to replace:

"AND UPON the Claimant and the Defendant having agreed that the Defendant having already discharged his/herliability in full and final settlement arising out of this action."

with:

"AND UPON the Claimant and the Defendant having agreed that the default judgment should be set aside"

2. Amend point 3 so that it says "The Defendant shall pay the Claimant £X as costs within 14 days of the date of this Consent Order being sealed."

-------------

You've already admitted that you have been aware for a while now, so you need to make a decision quick as courts expect you to be prompt. If you are diddling about waiting for a response from Gladstones then you run the risk of the court asking why you took so long. It is your default judgment and you are expected to take control of the situation, not rely on someone else as that is no excuse. Gladstones/One Parking will pay the price if they don't engage and you can use that as an argument for costs.

There needs to be a point where you say enough is enough and you will just issue an application, nine times of out ten you will then get the other sides immediate attention because now they have to actually do something.

If you want to understand more about the set aside process I suggest you read my guide below to familiarise yourself.

https://legalbeagles.info/forums/for...tailed-version

[Michilli26]

https://legalbeagles.info/forums/for...t-of-templates

See section 8 on the above link, I've added an example N244 application form, witness statement and draft order to set aside a parking ticket.

You will need to complete these appropriately and amend the witness statement as necessary.

As for the draft order, you will probably want to make some changes as per below.

1. You may want to replace:

"AND UPON the Claimant and the Defendant having agreed that the Defendant having already discharged his/herliability in full and final settlement arising out of this action."

with:

"AND UPON the Claimant and the Defendant having agreed that the default judgment should be set aside"

2. Amend point 3 so that it says "The Defendant shall pay the Claimant £X as costs within 14 days of the date of this Consent Order being sealed."

-------------

You've already admitted that you have been aware for a while now, so you need to make a decision quick as courts expect you to be prompt. If you are diddling about waiting for a response from Gladstones then you run the risk of the court asking why you took so long. It is your default judgment and you are expected to take control of the situation, not rely on someone else as that is no excuse. Gladstones/One Parking will pay the price if they don't engage and you can use that as an argument for costs.

There needs to be a point where you say enough is enough and you will just issue an application, nine times of out ten you will then get the other sides immediate attention because now they have to actually do something.

If you want to understand more about the set aside process I suggest you read my guide below to familiarise yourself.

https://legalbeagles.info/forums/for...tailed-version

Because time has been passing I feel that already I probably stand a better chance by having the signed consent now which is why I have waited out. But I understand what you mean and enough is enough. By Friday if there is no signed consent I shall file the application and apply to have the costs reimbursed.

Do I not need to include the grounds in which I am applying for a set aside and all I need to have written for the consent order is:

"UPON the application of the Defendant to set aside a default judgment dated 08 July 2019

AND UPON the Claimant and the Defendant having agreed that the default judgment should be set aside"


BY CONSENT IT IS ORDERED THAT:-

1. The default judgment entered on …08^th July 2019……. (Claim no. F2xxxx) be set aside.

2. The Claim is withdrawn.

3. The Defendant shall pay the Claimant £100 as costs within 14 days of the date of this Consent Order being sealed."


Dated this ………19th………. day of ………November…………….."


Does that final line (point 3) mean that I am paying directly to One parking (not Gladstones) the £100 is to settle the fine in full and have it withdrawn but only within 14 days of the set aside been issued? or is it saying within 14 days of this consent being signed?

Thank you

[R0b]

Sealed order means an order issued by the court with the court's mark. If you say that you pay within 14 days of the Consent Order being signed then that wouldn't make sense since you can't guarantee the court will set aside the CCJ.

Do I not need to include the grounds in which I am applying for a set aside and all I need to have written for the consent order is:

I refer you back to the beginning of my last post, this answers your question though you only need the N244 application, no witness statement.

[Michilli26]

Sealed order means an order issued by the court with the court's mark. If you say that you pay within 14 days of the Consent Order being signed then that wouldn't make sense since you can't guarantee the court will set aside the CCJ.


I refer you back to the beginning of my last post, this answers your question though you only need the N244 application, no witness statement.

Yes I was just checking but now I have sent my draft consent order to Gladstones. If they agree and sign, I will file the N244 form but just so I am clear, I would attach the consent order and what else with this?

If I am filing without consent which I shall do this week if i do not hear, I do the N244 form and witness statement?

[R0b]

If no consent = N244 + WS + Draft Order which you would need to amend slightly.

If consent = N244 + the Consent Order

[Michilli26]

If no consent = N244 + WS + Draft Order which you would need to amend slightly.

If consent = N244 + the Consent Order

Hello, thank you very much R0b
I received this today, is this okay and should I make the payment on the phone?
Do I need to obtain a receipt and how would I track the application if I allow them to send it?


----
"Thank you for your correspondence.
Please find attached our draft consent order for you to sign and return, we will file the final copy at Court once you have made payment of £100 court fee to us. If easier, I call you to take this payment.

Please let me know if you have any queries.



"UPON THE PARTIES having agreed terms of settlement

AND UPON it coming to light the Defendant’s had moved address prior to proceedings being issued but the claim still being deemed as served under CPR 6.9

AND UPON the above constituting ‘some other good reason why’ further to CPR 13.3(b).

It is agreed BY CONSENT that:-

1. The Judgment 08 July 2019 and is hereby set aside;

2. The Registration is cancelled;

3. Within 14 days of the date of service of this Order the Defendant is to make payment of £100 to the Claimant’s Solicitors, this payment being made in full and final settlement of claim F2Gxxxx;

4. Upon receipt of payment, the Claimant will mark the claim as paid and;

5. No Order as to costs."

[R0b]

Personally I don't like what they have said in the second or third paragraph because something like that might spark a judge's brain to think is something underhand happening. There is no prescribed method for explaining the background to the Consent Order and sometimes in this case less is more.

Claimant's have a duty to take reasonable steps to ascertain a person's last known address if there is reason to believe the individual doesn't live there anymore. It should equally raise a red flag to claimants and their solicitors if a number of letters have been sent but no response recieved. They should then take steps to find out that person's whereabouts, for example, a credit check, electoral roll check, instruct a tracing agent etc.

If the claimant can't prove steps were taken then it is arguably the case that a court must set aside the default judgment on a mandatory basis under CPR 13.2 rather than some other good reason under CPR 13.3. Difference between the two is that in the former case, the judge has no discretion, it must be done as of right because service of the claim form would be seen as invalid/defective.

So, to put you in a stronger position, it would be better if it was worded differently to reflect that:

1. You did not receive the claim form and had no knowledge of proceedings;
2. The parties agree that no steps were taken to ascertain the defendant's place of residence pursuant to CPR 6.9(3); and
3. Accordingly, service of the claim form was defective and therefore the default judgment is agreed to be set aside under CPR 13.2 as of right.

Of course you can put that in there and it is still at judge's discretion but it favours you better than what Gladstones have written. Even so, I doubt very much Gladstones will agree to the above so the compromise is general keep it short and sweet. The less background information there is, the less of chance that a judge will scrutinise it.

Rest of it looks fine generally though you might want to add the claim number in para. 1 in parentheses for definitiveness but it is not fatal. As I said though, choice is entirely up to you and what you are comfortable with but always remember, it's never guaranteed.

[Michilli26]

Personally I don't like what they have said in the second or third paragraph because something like that might spark a judge's brain to think is something underhand happening. There is no prescribed method for explaining the background to the Consent Order and sometimes in this case less is more.

Claimant's have a duty to take reasonable steps to ascertain a person's last known address if there is reason to believe the individual doesn't live there anymore. It should equally raise a red flag to claimants and their solicitors if a number of letters have been sent but no response recieved. They should then take steps to find out that person's whereabouts, for example, a credit check, electoral roll check, instruct a tracing agent etc.

If the claimant can't prove steps were taken then it is arguably the case that a court must set aside the default judgment on a mandatory basis under CPR 13.2 rather than some other good reason under CPR 13.3. Difference between the two is that in the former case, the judge has no discretion, it must be done as of right because service of the claim form would be seen as invalid/defective.

So, to put you in a stronger position, it would be better if it was worded differently to reflect that:

1. You did not receive the claim form and had no knowledge of proceedings;
2. The parties agree that no steps were taken to ascertain the defendant's place of residence pursuant to CPR 6.9(3); and
3. Accordingly, service of the claim form was defective and therefore the default judgment is agreed to be set aside under CPR 13.2 as of right.

Of course you can put that in there and it is still at judge's discretion but it favours you better than what Gladstones have written. Even so, I doubt very much Gladstones will agree to the above so the compromise is general keep it short and sweet. The less background information there is, the less of chance that a judge will scrutinise it.

Rest of it looks fine generally though you might want to add the claim number in para. 1 in parentheses for definitiveness but it is not fatal. As I said though, choice is entirely up to you and what you are comfortable with but always remember, it's never guaranteed.

Okay well I tried my luck and they have agreed to allow me to file the application however want to stick with their consent draft.

"We disagree to the content of the attached, the address provided was given by the DVLA and our Client had no reason to believe it was incorrect. Further to this we completed a trace using the services of Experian and wrote to the address provided yet received no response nor a response to the text message sent. Our position remains the claim was served in accordance with CPR 6.9 i.e your last known or usual residence.

If you wish to file the consent order that is fine, please confirm you are agreeable to our draft and we will sign and send you a copy. We'd be grateful for confirmation of filing as well."

You said less is more, but is there something else I can list to go in my favour to replace what they are saying in their points 2 and 3.
My first post on this thread shows my first email I sent to the claimant, what points there can I use?

Thank you R0b

[R0b]

Not really, if they won't change their draft order then you either have to accept or not.

On the point of a trace using Experian, that should show up on your credit file so you can verify if they actually did that or not. Ultimately your end goal is to get rid of the default judgment and whilst there is a risk in using their consent order, there's also a risk in getting it refused if you made your own application. You are the only person will full knowledge and facts of whether you did or did not receive it.

Given the lapse of time, the longer you spend the less chance you have it getting set aside if you make your own application. Their wording isn't fatal to setting aside the judgment and the court does have discretion to set aside because of non-receipt, so its up to you.

For the sake of delaying any longer, it might be sensible to just accept their Consent Order and deal with anything afterwards. In the N244 you'll need to say in question 3 that you are seeking to set aside the default judgment and the parties have agreed to a Consent Order in the form attached to the application and then send the signed copy but make sure to take a photocopy of it.

[Michilli26]

Not really, if they won't change their draft order then you either have to accept or not.

On the point of a trace using Experian, that should show up on your credit file so you can verify if they actually did that or not. Ultimately your end goal is to get rid of the default judgment and whilst there is a risk in using their consent order, there's also a risk in getting it refused if you made your own application. You are the only person will full knowledge and facts of whether you did or did not receive it.

Given the lapse of time, the longer you spend the less chance you have it getting set aside if you make your own application. Their wording isn't fatal to setting aside the judgment and the court does have discretion to set aside because of non-receipt, so its up to you.

For the sake of delaying any longer, it might be sensible to just accept their Consent Order and deal with anything afterwards. In the N244 you'll need to say in question 3 that you are seeking to set aside the default judgment and the parties have agreed to a Consent Order in the form attached to the application and then send the signed copy but make sure to take a photocopy of it.

When I originally requested for the information from the parking company they sent me photocopies of the letters they had sent out and yet there was not even a claims pack photocopy sent which makes me wonder if they did send it (even to my old address) so then that would be a whole other type of dispute really. So despite whether they did or did not anyway, I did not receive anything or a claims pack.

I sent them the draft back with the detailed points you made. But I didn't try slightly modifying or giving a simplistic approach.
Was going to give that one more go and if that does not work I'll agree to theres:

Should I say this: or remove point 3 altogether?


UPON THE PARTIES having agreed terms of settlement
AND UPON the Defendant not receiving the claim form and had no knowledge of proceedings
AND UPON it coming to light the Defendant’s had moved address prior to proceedings being issued but the claim still being deemed as served under CPR 6.9
AND UPON the above constituting ‘some other good reason why’ further to CPR 13.3(b).

[R0b]

It's up to you whether you want to remove it, I can't make that decision for you. Like I said, it's not fatal but if you want to remove it and send it back then its up to you.

[Michilli26]

It's up to you whether you want to remove it, I can't make that decision for you. Like I said, it's not fatal but if you want to remove it and send it back then its up to you.

Just want to get this final bit right as it is my final go. I want to make sure I write something which gives me the best chance as I would like to avoid the judge wanting to query further. Please help me with the wording of the points.

UPON THE PARTIES having agreed terms of settlement
AND UPON the Defendant not receiving the claim form and had no knowledge of proceedings
AND UPON it coming to light the Defendant’s had moved address prior to proceedings being issued but the claim still being deemed as served under CPR 6.9
AND UPON the above constituting ‘some other good reason why’ further to CPR 13.3(b).

maybe this one is better:

UPON THE PARTIES having agreed terms of settlement
AND UPON the Defendant not receiving the claim form and had no knowledge of proceedings
AND UPON the above constituting service of the claim form was defective and therefore the default judgement is agreed to be set aside under ‘some other good reason why’ further to CPR 13.3(b).