Set Aside hearing

[Dardang]

Hi,

I have a court date for a set aside hearing and need a little advice about the best way to go.
I recently found out that I had a CCJ for an old car loan debt. The court papers were sent to the wrong address so were never received by me. It turns out that the fault does lie with me as I put the number of my old address and the street* name of my new address on a letter to the claimant who subsequently updated their records and sent all correspondence to this now wrong address. When I applied for the set aside I thought the fault was with the claimant and also requested costs via a draft order. I have received a letter from the claimants solicitor saying that my application has no merit and recommend I withdraw the application to prevent further costs.

I feel I do have a defence to the original case as I have not received a legible CCA from the claimant after several requests, only a copy of which is too blurred to read and has no T's & C's. I also have serious misgivings about how the loan was sold in the first place. Various lies were told by the Car showroom which now along with the original finance company have gone out of business and the only evidence I have is circumstantial, as an example I have a couple of cases of 'Why would I have done that when I could have done this?'* A complaint has just been filed with the F.O.S. although I have minimal expectations of a ruling in my favour.

Many thanks for reading and any advice would be welcome and appreciated.

[pt2537]

Hi there a defence should have been filed with the application to set aside judgement the court has the power to set aside judgement if it considers that the defendant has a real prospect of successfully defending the claim or in the alternative if there is some other good reason why the judgement should be set aside. *
A good reason can be difficult to define for example in Godwin vs Swindon Borough Council the court of Appeal concluded that it was a good reason to set aside judgement if the debtor would have paid the Debt have they have known about the proceedings so as to avoid having a damaging county court judgement on the credit file.
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Now addressing some of the points you have raised firstly if you made a request for the credit agreement after judgement has been entered than there is no legal obligation on the creditor to provide a copy if however you requested a copy of the agreement before proceedings were issued and the creditor failed to comply then of course this will add weight to a defence.
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The opponent's are right to point out the risk of adverse costs if your application fails it is normally the applicant that has to pay the legal costs anyway unless of course good arguments can be put forward as to why that that rule should be reversed.
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It is very difficult to give any advice on an application which we do not have have and which we have not had sight of full stop if a client was asking me to advise on their application with only this limited information I would have difficulties therefore it is perhaps helpful if you give us an indication as to what you put in the n244 application notice so that we can consider whether the application is sufficient to set aside judgement.
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Also have you invited the opponent's to consent to judgement being set aside?

[Dardang]

Hi, When I sent the set aside application I thought the fault was clearly with the claimant and so didn't include a defence in the application.

I did request the credit agreement both before and after the judgement date. I guess they sent the first one to the wrong address. The 2nd one after the judgement they haven't sent although they did cash the cheque! (that was sent on the 29th Jan)


I wrote in the set aside application that:

'The claim form was not seemed good service and sent to an unknown address, the claim for was never received or sent back to CCBC.'

I did invite the claimant to consent to set aside the judgement.

Is it possible to argue a defence even though it wasn't in the application?

Thanks again.

[Dardang]

Does anyone know if I can get a set aside with a late defence? I did not put a defence in the original application. Thank you .

[pt2537]

You could file a draft defence for use at the hearing and serve a copy.on the claimant

theres nothing to.prevent this

[Dardang]

Thank you. To do this is it just a matter of sending it via post to the court and the claimants solicitor?

Many thanks.

[pt2537]

yes, i would suggest something like

Dear Sirs

Re (case details)

Please find enclosed by way of service a copy of my draft defence which i shall be relying upon and shall refer to at the upcoming hearing of my application to set aside Judgment. Please kindly acknowledge receipt.

And to the Court id say

Dear Sirs

Please find enclosed a drafted defence, please place a copy on the Court file as i shall be referring the Judge to its contents at the hearing on .........

I have served a copy on the Claimants solicitors.



That should do the trick

[Dardang]

Brilliant, thank you very much .

[Dardang]

I have received the witness statement in response to my defence form the claimants solicitors, as I would expect they seem very confident.

Here are some extracts:

1.*The Defendant makes his Application on the grounds that the Claim form was served at an
incorrect address.

2. The Defendant has also filed a further Defence dated 27 February 2020 in support of his
application, in which he alleges:

2.1* He was led to believe this loan would be cheaper than an existing loan he already
held with Black Horse Limited.

2.2* Black Horse Limited made an offer to cover the new loan at the rale of L2Yo' however the Defendant was sold an unsecured loan at a higher interest rate by Barclays.

2.3* He has made a complaint to the Financial ombudsman service alleging mis-selling.




The Claimant's Response.


1. On 07 June 2017 the Defendant wrote to the claimants agent, Robinson way, requesting a copy of his signed credit agreement pursuant to s78 Consumer Credit Act 1974' ln this letter the Defendant quoted his address as'14 ******* ******,***** *****

This is true, the error in the address was my error. I put the number of my old address as the number of my new address.

2. Upon receipt of the letter, the Claimant updated their system to reflect the change of address from '1 ******** *******' to '14 ******** *******'

3. Subsequently, all future correspondence was issued to the address of 14 Marsh Terrace' with no mail returned to the Claimant as undelivered.

4. The claim form was served at the Defendant's last known address which is sufficient for the purposes of Part 6.9 of CPR

"Where an Act authorises or requires any document to be served by post (whether the expression "serve" or the expression "give" or "send" or ony other expression is used) then,unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document ond, unless the contrary is proved, to hove been effected ot the time to which the letter would be delivered in the ordinary course of post".

The Failure to make the Application Promptly

1. Unless an applicant can show a very serious reason for delay, the length of time to be considered as being prompt is a short one. ln Regency Rolls Ltd v Cornall 12001] All ER (D)1417 (Oct), CA the Court held that a delay of 28 days was not acting promptly and in Bank of Credit and Commerce lnter national (in liq) v Zafar [2001] All ER (D) 21 (Nov) the Court held that a delay of 30 days was dangerously close to the limit of time that could be considered as acting promptly.

2. The Application is dated 30 January 2020 and has been made over six months after Judgment was entered. The Respondent submits that such a delay absent of a very serious reason could not be construed as acting promptly.

I made the application within a week of finding out about the Judgement. I found out during a phone call to the claimant on another unrelated matter.

Real Prospect of Defending the Claim.

1. It is submitted that in respect of whether or not a party has a real prospect of success, it is insufficient to show an arguable defence; the defendant must show that they have "a real prospect of successfully defending the claim" (see White Book (2018) Vol. 1 at 13.3.1). ln ED& F Man Liquid Products Ltd v Patel [20031 EWCA Civ 472 it was held that the test as to a'real prospect of success' is the same at that applied in an application for Summary Judgment under CPR Part 24.2, albeit the burden of proof rests upon the Defendant; The criterion "is not one of probability; it is absence of reality'' as per Lord Hobhouse in Three Rivers DC v Bonk of England [2001] 2 All ER 513). Equally, the Court should not conduct a mini-trial.

2. The Application is predicated on the ground that the Claim Form was served at an incorrect address, although provided by the Defendant himself.

3. The Applicant has failed to detail how he was led to believe this loan would be cheaper than an existing loan he already held with Black Horse Limited. ln any event, the Agreement which is the subject of this Claim clearly shows an interest rate of 17.00% as highlighted, which the Defendant signed to obtain the benefit of the credit.

The Agreement is illegible. No one could say for sure the rate of interest on the agreement. (see attachment)



4. The Respondent submits that Black Horse Limited are an unrelated third party, it is entirely separate to the legal proceedings and is not a justifiable reason to set aside the Judgment.

Black horse are part of my mis selling evidence submitted to the FOS

5. The Respondent will also say that The Financial Ombudsman Service does not have any standing in respect of legal proceedings.

Conclusion

1.The Respondent submits that the Applicant is attempting to deny it the benefit of a regular Judgment correctly entered. The Respondent further submits that the Applicant has failed to show a real Defence to the Claim with any prospect of being successful or any other good reason for setting aside the Judgment.*

2. For the reasons set out in the preceding paragraphs the Respondent respectfully requests that the Application be dismissed as being entirely without merit and an abuse of the Court process. The Respondent also respectfully request that the Court award its costs incurred and occasioned in opposing the Application.

If anyone has any advice on how to approach this in court then that would be great.

[pt2537]

I think its going to be an uphill struggle.* It's not beyond possible to get the judgment sef aside but they have some very good points in their evidence and unless you're familiar with these issues it's going to be very difficult to tell you how to argue this case In court

[Dardang]

Thank you.

Would you say there was a weakest point I could concentrate on?

Regarding familiarity I have read up on various parts but no expert!

Thanks again.
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[Dardang]

I am guessing my strongest points are that I was unable to defend the claim due to the papers being sent to the wrong address and mixed with the actual agreement being unreadable and the fact that I dispute the interest rate whihc itself cannot be read.

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