Where to send a setaside application

[jimbo1966]

Hello

I received a judgment in default (from Moneyclaim online in Northampton) and shortly afterwards a Notice of Issue of Warrant of Control (from my local court) for enforcement by county court bailffs. They were served at the wrong address and have only just been received by me. I was in dispute with a supplier, but hadn't realised they had litigated until now.

I am applying for set aside - should I send the application to Northampton or to my local court? Presumably at the same time I should apply for a stay in respect of the warrant?

[jaguarsuk]

Your local court and yes apply to stay the warrant.

[jimbo1966]

Thanks for the answer. Can the warrant be enforced at any address, or only at the address at which it was served? Also, whilst I understand that the warrant is still valid until it is set aside, is it usual to attempt to enforcement once as application for set-aside has been made? Through my own research I read that paying off a judgment in these circumstances could prejudice a set aside application.*

[ploddertom]

You say the docs were served to the wrong address, can you explain more? Was your supplier fully aware of your address and was the delivery address the same? Please note you do not Stay the Warrant - that is for High Court Writs, in this case it is an application to Suspend the Warrant. If this is what you decide to do along with an application for Set Aside then usually a call the Court Bailiff Office to inform them you have done so is usually enough for them to stand down pending further information. The County Court Bailiff is a salaried employee of HMCTS so therefore is not geared up to working on commission.

[jimbo1966]

You say the docs were served to the wrong address, can you explain more? Was your supplier fully aware of your address and was the delivery address the same?

Thank you for your reply. It was a dispute over a new kitchen in my home, so they knew very well where I lived. They used my employer's address when they sued me and obtained the warrant - ie my employer's address* was on the court documents and was the address to which they were sent. It may have been to embarrass me or because I used the company email a couple of times in correspondence (and the footer has the company address) and the person just picked up this address when completing the claim without any mal intent. However the quote and invoice were sent to my home address and addressed to me personally at my home address. The paperwork was delayed getting to me because although they used the company address, they didn't include the company name itself - there are several companies sharing the same building and they ended up on a pile for a while.

BTW I asked the claimant to consent to the set aside, but they replied that I had had plenty of time to respond to the claim form. They didn't address the issue over the address being wrong.
*

[R0b]

Should be a relatively easy set aside for you and the court and you should argue that it should be set aside under CPR 13.2 which is that the court must set aside a default judgment. Your reason is that the claim form was issued to your place of work, despite the paperwork stating your place of residence which is where the work was to be carried out. The Claim for should be issued to your last known address, and in the Court of Appeal case Collier v Williams (link here), the Court said in summary that the last known address cannot be a place where the person had never resided - see specifically paragraphs 68 - 71 of that judgment. Therefore the court must set aside the default judgment on that basis and service being defective, or alternatively you argue it should be set aside under their discretion CPR 13.3.

If they aren't willing to set aside, you can simply respond back and say that you feel there are solid grounds for setting aside the judgment on a mandatory basis and you will be seeking your costs of the application together with costs incurred in preparing, drafting and attending the hearing - a cost schedule will be served on them and filed with the court 48 hours in advance of the hearing.

Just as an FYI, it is not sensible to use your work email address to deal with personal matters, as you have clearly found out - keep them separate and especially so if your place of work has an IT policy prohibiting such use.

[jimbo1966]

Should be a relatively easy set aside for you and the court and you should argue that it should be set aside under CPR 13.2 which is that the court must set aside a default judgment. Your reason is that the claim form was issued to your place of work, despite the paperwork stating your place of residence which is where the work was to be carried out. The Claim for should be issued to your last known address, and in the Court of Appeal case Collier v Williams (link here), the Court said in summary that the last known address cannot be a place where the person had never resided - see specifically paragraphs 68 - 71 of that judgment. Therefore the court must set aside the default judgment on that basis and service being defective, or alternatively you argue it should be set aside under their discretion CPR 13.3.

I am sending in the N225, a Witness Statement, Draft Defence and Draft Order. There is limited space on the N244 under "What order are you asking the court to make and why?". Should I use a separate sheet? It doesn't seem appropriate to argue this in the Witness Statement. Are the court OK with me referring to, and even quoting paragraphs from, the Collier case? It seems a bit arrogant for a lay person to tell a judge what the law is...?

Thanks for taking the time to reply..

[jaguarsuk]

I am sending in the N225, a Witness Statement, Draft Defence and Draft Order.

You need to use form N244 to apply not N225 because you are not requesting a judgement.

There is limited space on the N244 under "What order are you asking the court to make and why?". Should I use a separate sheet?

In part 3 simply put 'See draft order enclosed.'

Then in your draft order:

1. The Judgement dated XX/XX/20XX in the Northampton County Court Business Centre is set aside pursuant to CPR 13.2 & 13.3 due to defective service of the claim form.
2. Claimant to file and serve on all parties Particulars of Claim within 7 calendar days of the date of this order.
3. Defendant to file and serve on all parties a defence and if applicable counter claim 21 calendar days after the date of this order.
4. Claimant to file and serve upon all parties any Reply to Defence and Counterclaim 35 calendar days after the date of this order.
5. Costs of and occasioned in the making of this application to be paid by the Claimant to the Defendant within 14 calendar days of the date of this order.

It doesn't seem appropriate to argue this in the Witness Statement. Are the court OK with me referring to, and even quoting paragraphs from, the Collier case? It seems a bit arrogant for a lay person to tell a judge what the law is...?

It's not arrogant, it's pleading your case and will demonstrate the judge that as Litigant in Person you have properly researched what you are doing.

Out of interest what is your defence going to be? Why are they claiming from you?

[jimbo1966]

You need to use form N244 to apply not N225 because you are not requesting a judgement.

Yep, I have the right one. Just typed in the wrong number when I posted!

You need to use form N244 to apply not N225 because you are not requesting a judgement.



In part 3 simply put 'See draft order enclosed.'

Then in your draft order:

1. The Judgement dated XX/XX/20XX in the Northampton County Court Business Centre is set aside pursuant to CPR 13.2 & 13.3 due to defective service of the claim form.
2. Claimant to file and serve on all parties Particulars of Claim within 7 calendar days of the date of this order.
3. Defendant to file and serve on all parties a defence and if applicable counter claim 21 calendar days after the date of this order.
4. Claimant to file and serve upon all parties any Reply to Defence and Counterclaim 35 calendar days after the date of this order.
5. Costs of and occasioned in the making of this application to be paid by the Claimant to the Defendant within 14 calendar days of the date of this order.


It's not arrogant, it's pleading your case and will demonstrate the judge that as Litigant in Person you have properly researched what you are doing.

OK, but where should I "plead" my case (eg referring to Collier) - or save it for a hearing?

Out of interest what is your defence going to be? Why are they claiming from you?

Sure. I agreed to have a kitchen done, paying in instalments. The final instalment is due when the work is finished. The workmen walked off site apparently having had a dispute with their employer. The work was never finished so I didn't pay the final instalment. We exchanged some phone calls/emails over six weeks and then they said according to their T+Cs I should have raised the issue earlier with them. The cost of finishing the job is likely to be greater than the instalment remaining. I was considering counterclaiming back some of what I paid but didn't consider it necessary as part of the draft defence.

[jaguarsuk]

Yep, I have the right one. Just typed in the wrong number when I posted!



OK, but where should I "plead" my case (eg referring to Collier) - or save it for a hearing?

Part 10, tick Witness Statement and then in a chronological order state whats happened until the point of application to set aside and then why it should be, sent to the wrong address and service deficient referencing collier.

Sure. I agreed to have a kitchen done, paying in instalments. The final instalment is due when the work is finished. The workmen walked off site apparently having had a dispute with their employer. The work was never finished so I didn't pay the final instalment. We exchanged some phone calls/emails over six weeks and then they said according to their T+Cs I should have raised the issue earlier with them. The cost of finishing the job is likely to be greater than the instalment remaining. I was considering counterclaiming back some of what I paid but didn't consider it necessary as part of the draft defence.

Your Counter Claim would be for the cost of finishing the job, so I would get a quotes for that (ideally 3) and defend on the grounds they have failed to complete the job, so the final instalment is not owing.

Probably useful if you post their T&C's plus claim form if you have it, but remove (cover) personal information.