Active CCJ dispute/set aside

[BlackMagic_]

Thanks Rob.

Decision: Mandatory set aside under CPR 13.2

Steps: (correct me if needed)

-Go back to the legal rep of VCS and state I’ve changed my position as per your points above.
-Enclose N244 with updated q3 statement filing under 13.2 and a draft consent order
-if they accept/agree to consent
— send N244 w/ consent order to court
-if they refuse/reject to consent
— send N244 w/ WS to court

cross my fingers

[R0b]

Yes, that would be an appropriate path to take, although if you end up making an application without consent, then your WS will need to be adapted somewhat.

Why don't you post up your draft consent order and we can take a look whilst you have a stab at preparing a response to VCS and post it up here so we can comment.

[BlackMagic_]

Yes indeed.

I will need to draft a consent order today as the claimant said they would be providing me this on receipt of my n244 and payment so I haven’t even looked at that yet.

Will have to bear with me and I will come back with the necessary.
thanks again

[BlackMagic_]

I have drafted a consent order and have this attached for comment if possible.

Typically as i was writing and re reading both CPRs on justice gov i still couldn't settle on which is the better qualifying stance 13.2 or 13.3 but i have stuck to the aforementioned decision.

I will come back to you on a draft email response to VCS. thank you

[R0b]

Bit wishy washy to be honest and too much detail, short and sweet on a consent order is sufficient.

I've attached a variation of your draft version. It's written on the assumption that the claim is not dismissed but stayed on the proviso you agree to pay the sum within 28 days. If you fail to do that, then VCS are entitled to make an application to restore the claim and continue where proceedings left off.

This seems to be more in line with what you are suggesting if you are not contesting the claim and agreeing to pay the amount.

[BlackMagic_]

Thanks Rob.

Family duties have meant i haven't been able to come back earlier unfortunately. Thank you for the amendment.

As discussed previously i have drafted an email response to Elms legal (VCS rep) for an extra pair of eyes to be cast over.

Question: Which costs would i be seeking given i may have court fees waived. Would they still have their own fees to which i technically 'seek'?

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Hello,

Thank you for your timely email response.

I have now been able to consider and further familiarise my position and the process surrounding the claim. I have been advised that would I agree to pay or settle before making my application then the debt is, as you state, deemed satisfied and could harm my application for the claim to be set aside owing to the fact that i don't believe the claimant took reasonable steps to ascertain my last known address and was served correspondence at an old address giving grounds to a mandatory set aside where the court must set aside the default judgment as it was an irregular judgment where i was unable to acknowledge the service.

I have attached my N244 form with an accompanying consent order. Should you refuse to sign the consent order I will proceed to make my application anyway which may include seeking costs which are likely to exceed the amount of the claim. Therefore, it may be prudent to consider this and agree to this compromise between parties.

Kind Regards,


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N244 Q3 statement currently reads:

"An order that the Judgment in Default be Set Aside pursuant to CPR 13.2 and the original Claim be dismissed, with no order as to costs. The Defendant only discovered the Judgment when making a credit report check and has acted promptly in filing this application and for their part, the Claimant has accepted that service of this claim was defective (due to an old address being used) and consents to an original fee."


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Question: Which option do i now fill Q10 on the N244 form?

Do i choose option three assuming they agree to the consent order and fill in the box below. If they come back and reject should i then update to use WS and return it back to them before sending

10. What information will you be relying on, in support of your application?
-the attached witness statement
-the statement of case
-the evidence set out in the box below

[R0b]

An example response below, but feel free to adapt as you see fit. You don't need to send them anything but the consent order and get them to sign it.

Set aside applications are not subject to the small claims rules so the general starting point is that the successful party should be entitled to their costs. This would be £19 per hour at the litigant in person rate, but capped at 2/3 a solicitor would charge, as well as witness attendance costs. I've removed the point mentioned around exceeding the cost of the claim, but it is still true that costs can apply.

For Q3, I would say something like

This application is made by the Defendant to set aside a default judgment. The Parties have agreed terms of settlement by way of consent (order attached), and request that said consent order now be made an order of this court.

For Q10, you simply put tick the evidence in the box below and then make a sentence to say that the parties have agreed terms of settlement in the form of the attached consent order.

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

I have now been able to consider and further familiarise my position and the process surrounding the claim. After further investigation, I am informed that if I were to pay or settle the judgment debt before making my application then the debt is would be deemed satisfied and I would not be able to successfully set aside the default judgment; this is also confirmed on the Registry Trust's website under the FAQ section.

I am also aware that the claim form must be validly served to an address in accordance with the Civil Procedure Rules. Specifically, where the defendant is an individual, rule 6.9 dictates that the claim form must be served to the defendant's last known address, but if there is a reasonable suspicion that the defendant no longer resides there, then the claimant must take steps to ascertain the defendant's last known address.

As you will know, there are several stages before proceedings are issued and the lack of response to the numerous letters sent by both yourselves and your client, ought to have given rise to reasonable suspicion that I may not be living at the address you had on file, which ought to have prompted you and/or your client to investigate further. There is nothing to suggest that you client has undertaken any steps to ascertain my current whereabouts. On that basis, I believe that there are grounds for setting aside the default judgment under CPR 13.2 (of which the court is mandated to set aside) because service of the claim form invalid and thus leading to an irregular judgment.

Notwithstanding what I have mentioned above, I am prepared to settle this claim without admission of liability by way of a consent order. I have taken the liberty of preparing the enclosed consent order for consideration. Please note that if your client is not able to agree to the terms of this consent order, then I will be looking to make an application to the court to set aside the default judgment. If I am required to do that, I will be seeking costs incidental to the application and your client will then have to prove that it has complied with the relevant CPR provisions.

I trust we can resolve this amicably but I would need a response by 4pm on Wednesday as to your client's intentions or, if there is no response, I will submit my application without further notice.

[BlackMagic_]

Thanks for the response.

"I would not be able to successfully set aside the default judgment; this is also confirmed on the Registry Trust's website under the FAQ section.

-Can i just check that this is correct as we have changed language from stating, it would have a harmful or detrimental affect, to a more definitive, it will not be successful

sorry if i seem pedantic on this but conscious details like this can be important so thought i would double check this



on a side..

The original notice to keeper correspondence was a penalty charge demand for £100 reduced to £60 on prompt payment within 14 days of the NTK. (see below)

for clarity on point 2 of the consent order therefore should the offered settlement amount be for £60 (not the £185 that they have previously agreed as i am not admitting liability to that)

"Payment is now required in the sum of 100.00 within 28 days of the Issue Date of this Notice i.e. no later than 88/88/8888 . However, if payment is received within 14 days
of the Issue Date of this Notice, i.e no later than 88/88/8888 , then a reduced amount of 60.00 will be accepted as full and final settlement."

almost there, thanks for bearing with me!

[R0b]

Whether you want to amend it is up to you but it is factually true statement, link below for evidence. Sure, it's technically possible but as I've already mentioned, the route you would be taking is an anomaly because the relevant rules and legislation doesn't allow for it.

https://www.trustonline.org.uk/help-...-judgment-ccj/

[BlackMagic_]

Thanks that’s fine.

looks like I edited my post as you were replying so you may have missed my second part re the consent order quoted charge.

does that make sense to you /seem correct/appropriate?

or should it replicate the initial notice terms precisely i.e Defendant to pay £100 within 28 days of the date of this order reducing to £60 if paid within 14 days of this order

thanks

[R0b]

How much you want to pay is up to you or whatever you have agreed is between you and them as I don't know what it is you have accepted

[BlackMagic_]

Will be in touch to update on the response i receive from the claimant

thanks again

[BlackMagic_]

Not the response i was anticipating, see below.

So VCS only care about cooperating when the full ccj charge is paid it seems that isn't surprising really- very frustrating though.

welcome any thoughts on this

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

Thank you for your kind response.

An additional thank you for advising of the details/specifics.

Unfortunately, we here are only instructed to consent to individuals setting aside judgment once the full balance has been paid and an N244 Application Notice has been completed by said individual.

If you wish to query whether our client would accept the terms you are proposing, you can contact our client at: litigation@vehiclecontrol.co.uk.

We look forward to hearing from you in due course.

Kind Regards

[R0b]

So fire it off to that email address and explain you have been given advised to contact them direct. Enclose a copy of your responses and consent order and give them 48 hours to consent.

Suggest you word the subject line sufficiently to get their attention to respond, something like notice of intended legal proceedings to set aside default judgment.

[BlackMagic_]

Thanks again. will keep the thread updated when i get response