Builder Requesting CCJ Set Aside

[Kells Bells]

I'll try and condense as much as possible:

My builder went 6K over budget (original quote 4.5K), always demanded cash, walked off the job when I said no more money until finished. Also turns out he did a piss poor job.

I have followed the protocol. Messages to sort the situation etc, letter before action etc.

I received a letter and Acknowledgment of Service from his solicitor on 12 August who said that they are advising the builder to defend the proceedings based on the fact they were issued against the wrong party, him instead of ltd company, and would ask the court to strike out the claim. I wrote back saying that it was a private arrangement, not through his company, and have received nothing via the company name and quoted a message where he asked for cash to avoid VAT.

Since then nothing.......

I proceeded with my claim, no defense was submitted although an extension was asked for, and was finally awarded CCJ dated 24 September.

15 October, I instructed high court enforcement.

Yesterday, the enforcement company contacted me to say it's been put on hold because the builder's solicitor has applied to have the CCJ set aside (solicitor letter dated 23 October).

Do you think he stands a chance?

[efpom]

An application to set aside a CC judgment does not suspend enforcement of a High Court writ.

On whether the correct Defendant has been sued.
Every trader is required by law to properly identify himself to any consumer, and do so on paper or another durable medium. Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. If he does not, the consumer is entitled to be refunded all sums paid over to the trader.

[Kells Bells]

Thank you Efpom. Interesting feedback regarding trader identification, my solicitor never mentioned that (Which Legal). I think they have put enforcement on hold to prevent any unnecessary costs, pending outcome. I'm just wondering if the judge would set aside the CCJ considering no defense was presented and the strike out was obviously never requested.

[ploddertom]

Interim applications are nearly always granted pending a full Hearing.

[efpom]

You may wish to establish via Companies House whether the "company" is up to date with it's filing obligations and, particularly whether it is solvent.

You might also wish to consider arguing at the set aside hearing, if one is held, that the "company" be ADDED as the 2nd Defendant and that, if the Defendant is a director of the "company", that service of proceedings on the "company" is dispensed with.

You might also wish to consider making an application to amend the quantum of your claim, given the recovery right in the Regulations I mentioned earlier.

[efpom]

Which Legal does not seem to be a solicitor firm - are you a litigant in person?

[efpom]

I think you will admit, with hindsight, that it was a mistake to pay in cash. However, I assume you have a record of some sort of how much you say you paid the “builder”.

The “builder” the Defendant here, says that you did not contract with him, personally, but with a company in which he has some sort of interest.

That assertion may turn out to work in your favour, because the sums you paid over to him, should have been handed over, by him, to the company, who should have a record of those cash payments having been paid into the company’s bank account.

It follows that it is open to you to set the company to it’s proof that those sums did, in fact, end up in the company’s bank account, in full, shortly after you paid the “builder”.

[Kells Bells]

Thanks Epsom

Yes I am a litigant in person. I signed up to Which Legal for advice etc because it's a lot cheaper.

I don't know what grounds they are using to set aside the CCJ yet as I haven't received the court paperwork. I assume the original claim to strike out never happened, but obviously not sure yet.

I do have written proof of the sums handed over to him. I don't understand why it's taken 3 months before any action was taken.

[efpom]

Contact the court, establish if an application to strike out the default judgment has been made, if the answer is "No", instruct the bailiffs to execute the High Court writ.

[Kells Bells]

Seems impossible to get through! Will update when I know more.

[efpom]

email the court

[Kells Bells]

Finally have an update.

It transpires that the defendant's solicitor sent the defense to the wrong email address. They have applied to have the CCJ set aside and writ be stayed via N244 application on the basis of their error.

They also asked that it was dealt with without a hearing but the judge has requested one (March 2021).

Is this hearing purely related to the CCJ, not the original claim?

The defense is that the claim has been issued against the wrong party, the defendant not his business and they are requesting a strike out..

Thank you

[efpom]

The hearing is to determine if the ccj should be set aside - it is not a trial of of the claim. If the ccj is set aside, a trial of the claim will subsequently occur - unless the claim settles.

[Kells Bells]

Update (my error)

The high court has stayed the writ, set aside the ccj and referred it back to district court.

The only defense paperwork I have received is the witness statement of the defendent:

The defendant denies the claim as it has been issued against the wrong party (him, not the business).

It goes on to say 'An estimate was supplied to the claimant by #####'

It then goes on to say 'discontinue or the defendant will make an application to strike out the claim'.

Am I not supposed to receive evidence that it was through his business? The estimate was through a Whatsapp message.

I have hard evidence that he asked for cash, one time stating 'otherwise I have to pay VAT'.

[Kells Bells]

Sorry to repeat myself, so is this hearing purely to prove if the claim is against the correct party, not the original claim?