CCJ consent order, do I apply to get it set aside without consent now?

[luluthedog]

Hello,

On the 16th of October 2020 I wrote to BW legal to have a CCJ (from 2018) for a parking fine set aside by mutual consent. My argument was that I didn't receive the paperwork so I sent through all evidence that I have moved addresses by the 2nd of November 2020. Since then every week I give them a chase and they say its with TPS, that they are very busy and will try and get back to me. I speak to them on the phone and by email but essentially I am now two months deep on what I thought was a simple thing and worried that if I tried to set aside without consent the judge would say no as its gone past the month. Any advice?

Thank you kindly

[luluthedog]

Hello,

Weirdly enough I have just received the response

I can confirm we have received instruction from our client who have requested that you send in further information as to your reason for wanting the County Court Judgment (CCJ) to be set aside.



I note from previous correspondence that you are not disputing the PCN and are disputing the fact that you were not aware of the matter. Our Client's parking attendant affixed a Parking Charge Notice (PCN) to your windscreen on the Contravention Date. It is our Client's position, therefore, that you would have been in receipt of the PCN and the issuance of the PCN in this way complied with statute.



As previously confirmed, our client ascertained your full name and serviceable address from the DVLA of xxxxxxxxxxx. Whilst we note the evidence you have provided, you have not provided sufficient evidence to show that the DVLA were updated with your new address. It is a requirement under Regulation 18 (1) of The Road Vehicles (Registration and Licensing) Regulations 2002 for motorists to promptly notify the DVLA of any new name/address of the registered keeper of a vehicle, and a failure to do so can be deemed an offence.



As you did not contact us we had to undertake steps to determine your whereabouts and the claim form was served at the last known address in accordance with the Civil Procedure Rules.



Our client believes based on the above, and without any further evidence to suggest otherwise, the County Court Judgment has been entered correctly. We request you contact us to arrange repayment of the balance.


Does anyone have any advice on what to do next? Sorry should add i changed my address on my driving license but no the v5c as the car was still being driven by my brother who did still reside at the address.

[R0b]

What do they mean by you are not disputing the PCN, have you admitted to being liable?

[luluthedog]

No I said this (which hopefully it’s ok) -

From my limited legal understanding, though I do notrecognise the liability of the amount being asked. It seems preferable both to you and me to appeal to the court for this to be set aside with mutual consent.

Is this something BW Legal would consent to, if say I agree to pay any outstanding amount relating to this contravention by the 27th of October. Would you be willing to consent for the order to be set aside?

That’s the only time I’ve mentioned it, and it was on my original email I’ve kept the bold as that’s how I sent it

[R0b]

I see, well it looks like they’re not going to agree so your only option would be to make an application and pay the £255 fee unless you have an exemption.

The court expects you to act promptly but you’ve been hanging around waiting for them to get back to you so really you need to start making decisions fast on where you want to go.

Are you prepared to go down that route?

[luluthedog]

What would be classed as an exemption? Am prepared to go down any route at this point I guess I’d lose the £255 if I lose the case which would be a shame. Just so I have my head straight, without consent I would be filling in the form, a defence statement as to why I did not receive the CCJ and why the PCN should not have been issued, and any other evidence.

Should I include the fact that I tried to get it set aside by consent and include all the emails? I’d be worried that as the last email from them states I don’t have enough evidence from the DVLA the emails would work against me. The thing is all my bills said my new address, and my linked addresses show this one, and electoral register

[R0b]

So in response to their email, you could reply something along the lines below.

You may need to adapt it to suit your current situation but it is a starting point. If you want any feedback before you send it off, post up your version for critique.

In the meantime, if you are prepared to pay the £255 then you will need to start drafting the N244 Form, a draft court order and a witness statement. I've just recently posted on another thread with these documents as a template, suggest you head over there and take a look (link here). Also an exemption would be from the fees if you are on low income.

- - - - - - - -

Dear XXX,

With reference to your last email, I would make the following points:

a. At no point did I suggest that I am not disputing the PCN, rather I explained that I did not receive the claim form or any correspondence in relation to this matter. I was merely making the suggestion as to whether there would be consent to set aside the default judgment on the basis of the alleged debt being paid - that does not (and you should not) imply that I am making any admission as to liability.

b. If it is your client's case that the PCN was affixed to my windscreen, please can you provide me with the evidence to support this. I presume you have this readily to hand since this would have formed part of your case file when you commenced legal proceedings on your client's behalf.

c. Whilst your client may have obtained an address via the DVLA, both you and your client ought to have raised suspicion as to whether I continued to reside at that property due to the lack of response. As you will know, there would have been several letters prior to the commencement of legal proceedings and since you received no reply, that should have prompted you and/or your client to investigate. Furthermore, I fail to see the relevance with respect to the Regulations that you refer to because any offence (which I deny) would amount to a criminal offence and the current dispute is a civil one. Just because the registered keeper details refer to a former address does not in of itself allow your client to consider itself compliant with CPR 6.9 in taking reasonable steps to ascertain my current residence.

d. Following on from the above point, you mention that BWLegal had to undertake steps to ascertain my last known address and so I ask you to provide details of those steps undertaken together with any evidence you have in your possession. I have already supplied you with evidence showing a number of updates to reflect my current address which is (new_address) so I am intrigued as to why you considered my last known address to be (insert_address).

e. As you may have gathered from what I have written, it is my belief that there are grounds for setting the default judgment aside under CPR 13.2 (that is a court must set aside the default judgment) on the basis that your client ought to have had a reasonable suspicion from the lack of response to its letters, that I may be living elsewhere. Accordingly, service of the claim form was not good service and the default judgment was an irregular judgment. You claim to have taken steps to ascertain my last known address but unless you can provide me with something tangible, there is nothing to suggest this was done. The onus is on your client to show that it had indeed complied by taking reasonable steps.

f. Finally, I also believe there might be a reasonable prospect of successfully defending the claim if the matter went to trial and I will expand on that when I receive the relevant documentation and evidence from your client.

Notwithstanding the points I have made, I am prepared to settle this claim without admission of liability by way of a consent order. Please note that if your client is not able to agree, 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 which will far exceed the costs your client originally sought under the judgment and your client will then have to prove that it has complied with the relevant CPR provisions.

I would like a response as to your client's intentions no later than 4pm on Thursday, but if I do not hear from you or your client rejects my proposal, then I will proceed with my application to set aside the judgement without further notice to yourselves.

[luluthedog]

Woahhhh that’s amazing, a) you write far more intelligibility than I ever could and b) well just amazing and thank you. To be fair it’s clarified a lot of the questions that I had as there is more evidence to suggest that I live where I do than evidence to prove the contrary. I will start drafting the witness statement so it’s all ready for Thursday. If you do have time I’ll post it here tomorrow. Again can’t thank you enough, is there anything I can do for you in return?

[luluthedog]

Intelligently* (the irony)

[R0b]

Sure, I will have a look then when I have 5 mins.

Suggest you also take a read of my guide on setting aside so you are familiar with the process and know what to expect.

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

[luluthedog]

R0B not sure how to thank you, your letter seems to have made an impression on them as I've just received the following -

Your comments are duly noted.

I can confirm, as a gesture of good will our client is agreeing to set aside the Judgment through a consent order on the basis that the outstanding balance and the consent order fee of £100.00 is paid by yourself.

If you are in agreement with this, please confirm how you wish to make payment and I will draft a consent order.


Before I get over excited am I walking into a trapped door? Is there anything that I need to do, I'm aware of agreeing to the terms before I see the consent order.

[luluthedog]

R0b I was wondering if you could help, I've received the following -

UPON evidence being provided to the Claimant that the Defendant did not reside at the address at the time the County Court Claim form was served, and therefore not having the opportunity to respond;

AND UPON the parties agreeing and the Court being satisfied that the above constitutes ‘some other good reason’ for the Judgment to be set aside pursuant to CPR 13.3;

BY CONSENT IT IS ORDERED THAT

1. The default judgment entered on xx xxxxxx and is hereby set aside.

2. The registration entry be and hereby is cancelled.

3. All further proceedings in this claim be stayed except for the purpose of carrying such terms into effect. Liberty to apply as to carrying such terms into effect.

4. There be no order as to costs.
----------------------------------------------------




Would you be happy that I submit the N244 form? I just don't want to sign in case of any errors

[luluthedog]

hello was wondering if someone could look at the above and make sure its ok before I file for court?

[R0b]

Couple of points:

1. This consent order says that the parties agree this should be set aside under some other good reason. As this falls into CPR 13.3 it is discretionary rather than trying to assert that it should be set aside under CPR 13.2 which is mandatory. I would personally push for that but if time is not on your side then you should get away with it since it is a set aside by consent. Ought to be a rubber stamp exercise but bear in mind the judge always has the final say.

2. I wouldn't be comfortable with para. 5 of the schedule simply because it doesn't allow you to discuss the settlement with anyone except where the law requires or regulation reasons e.g. a court orders disclosure or a regulatory body asks for it. I don't think it is necessary for this low sum amount to be honest.

If it were me:

a. I would strike para. 5 completely.

b. Amend para. 3 of the main body so it reads as this:

All further proceedings in this claim be stayed upon terms set out in a Schedule, copies of which are held by the parties, except for the purpose of carrying such terms into effect. Liberty to apply as to carrying such terms into effect.

I would go back and propose this and explain that you don't agree to a confidentiality obligation given that this is a routine dispute and is not something by which there ought to be a requirement of confidentiality given that you have agreed to pay the amount claimed in full.

Just as an FYI, terms contained in a schedule under a Tomlin Order do not need to be approved by the court, because the schedule is in effect a contractual arrangement between the parties to the order so a court cannot enforce the schedule as a judgment.

Obviously you can ignore what I've said and simply run with what they've offered which is up to you and perfectly fine, but you will need to delete your last post because the schedule terms would be deemed confidential.