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CCJ by default & setting aside

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  • Reg1
    started a topic CCJ by default & setting aside

    CCJ by default & setting aside

    Hello, some advice would be appreciated.

    I made a claim against a Ltd company but they didn't respond by court deadline so I got a CCJ by default. The company solicitor then used form N244 to ask the court to set aside on grounds 13.2 and 13.3.

    The solicitor said that they replied to the claim on behalf of the defendant but but they sent their response to the wrong address.

    I can't say if the court ever received their defence but I haven't had a copy so I don't know if they have a good chance of defending themselves at a full hearing.

    I'm not sure what to think about their chances of getting the CCJ set aside.

    The N244 form the company solicitor submitted to the court had very little information on it. There weren't many clues as to why they think they have a good chance of defending the claim. The focus was mainly on their inability to follow the instructions on the claim form.

    With this in mind can someone please tell me what to expect at a set aside hearing ? Do I need to attend ? do I need to present my case or will the defendant have to do all of the work as its their application/day in court.

    I was also keen to know if I should I start enforcement action now ? or would it be sensible to wait ? until after set aside decision is made !! They didn't ask for enforcement action to be stayed or suspended on form n244 so I assume I am entitled to start enforcement if I wanted to ?

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  • Reg1
    Thank you for your replies. Please accept my apologies for making a post about my claim and then vanishing. There's been a lot going on recently and in some ways that unfortunately includes having to deal with a court case.

    I tried to have a conversation with the defendant about trying to reach an early resolution so we can avoid attending court for a set aside hearing and potentially a full trial but they refuse to engage with me directly and instead tell me to contact their solicitor who is dealing with the matter on their behalf.

    I stated I would consider not contesting their application to set aside and would not proceed with the claim if they agreed to 4 terms. They instantly shut the conversation down and the solicitor followed up with a letter advising me not to contact their client talk to them.

    The solicitor also included what they say is the defence they filled with the court. I told their client the defendant I had not recieved a copy of their defence and at this point in time did not require a copy. But they sent me the defence anyways.

    This document really didn't tell me much. Not even what their defence is. So I'm still unsure what their chances are of successfully getting CCJ set aside or what the odds are of them successfully defending the claim at a full trial.

    I am fairly sure the defendant is the one that makes all of the decisions about this claim though. And ultimately it is the defendant not their solicitor that has the final say about how to proceed.

    If this isn't the case the defendant could've sent my letter to their solicitor who could advise how to act. But telling me to go back and forth with their solicitor is surely just a way for the defedant to increase costs? and to try pass those costs on to me?

    I feel that the offer I made was more than fair and considering that it is the solicitors fault that the defendant failed to file a defence on time so I was able to obtain a CCJ in the first place, I would have if it were me calling the shots, taken the offer and ended the matter before we get anywhere near a court room.

    Talking of a day in court. Can anyone tell me if applications to set aside are ever dealt with on paper ? so a face to face hearing isn't required ? or is it almost guaranteed that there will be a day in court for the set aside hearing ? and possibly for a full hearing ?

    It's been about 3 months since obtaining the CCJ. I was curious to know what would happen if I sent the bailiffs in to collect the amount owed ? because the other thing the defendants solicitor didn't do is ask for enforcement action to be stopped on N244. They just asked for CCJ to be set aside because they have a defence.

    The solicitor informed me that they sent the court a copy of the defence that they sent me a few days back. BUT they must have sent this document after submitting the set aside application because N244 simply said they could defend against claim without saying how.

    This weekend will be spent completing the evidence bundling/duplicating excercie I started a while ago but didn't finish. Hopefully by Monday I'll have my evidence duplicated so everyone that needs a copy can have one !! and if my claim ends up in court which it will if the set aside application goes the defendants way, it could be a fairly complicated claim. It is essentially a personal injury and harassment claim.

    To be fair due to the way I've been treated by the defendant it's likely to be very stressful facing them in court. If a judge sets aside CCJ is there a good chance that the judge will make a date for a full trial ? or do I decide if I want to continue my claim ? and when I want to continue it ?

    I think I would have to go full trial if the set aside goes defendants way because saying I agree to NOT re-start the claim is likely to result in the defendant suing me for costs and damages.

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  • Pezza54
    CPR 15.6 states a copy of the defence must be served on every other party. Could REG1's copy of the defence been sent to the wrong address too?
    I suggest REG1's witness statement objecting to the application includes the fact that he did not receive a copy of this document and refer to cpr 15.6

    Leave a comment:

  • R0b
    So it sounds like the defendant's solicitor made a boo boo and didn't acknowledge the claim.

    CPR 13.2 are related to applications where the court must set aside the default judgment. This normally applies where there has been a procedural irregularity such as where the claimant has been a little hasty in requesting judgment when he/she was not entitled to do so. For example, a common reasons to set aside under this ground are where the claimant failed to serve the claim form to the correct address and because the claim form was not correctly served, the time limit for filing an acknowledgment of claim or defence never started to run because it only starts where the claim form has been validly served.

    CPR 13.3 are applications related to whether the court has discretionary grounds to set aside the judgment as there is 'some other reason' to do so and the court's discretion is pretty broad on this, provided the defendant can overcome the relevant hurdles and criteria.

    I can't see how they can rely on CPR 13.2 unless you obtained judgment within 14 days of the claim form being served. In reality, the real reason could very well be that the solicitor didn't actually post it to the wrong address but instead forgot to do anything and the solicitor could be trying to use this as an excuse (which happens more often than you think).

    To answer some of your questions:

    With this in mind can someone please tell me what to expect at a set aside hearing ?
    Essentially, the court will hear the defendant's application on why the judgment should be set aside. The hearings usually last no more than 30 minutes and are not intended to be a mini-trial but a speedy hearing to consider the merits of whether the judgment needs to be set aside. You have a right to object to the application and your reasons are usually set out in the form of a witness statement which needs to be submitted as soon as possible but no later than 2 working days before the hearing.

    Do I need to attend ?
    I would highly recommend you attend that hearing for several reasons. If you don't attend, there is a very realistic chance they will ask for their costs of the application and legal fees, and the court would likely grant those costs in your absence since you are not there to make any arguments on it. Now, you can of course decide not to attend and submit your witness statement and objection to any costs, but statistics show that those who attend are more likely to have a better chance of succeeding than those making arguments on paper.

    do I need to present my case or will the defendant have to do all of the work as its their application/day in court
    As above, you can make your objections known in a witness statement and then expand on that at the hearing or just rely on the witness statement if you choose not to attend. This is largely the defendant's application but a court should give you some time to make your own arguments as to why the judgment should not be set aside but it will be a very short hearing so you will have limited time to say anything and therefore you need to be very concise and not waffle.

    I was also keen to know if I should I start enforcement action now ? or would it be sensible to wait ?
    I would sensibly suggest you wait until the outcome of the application. You will have to pay to enforce the judgment but if the judgment is set aside you will then need to return the money or goods in question at your own expense and you will not get your money back from whatever enforcement method you choose. But you are entitled to enforce the judgment now if you want as only a court order can prevent that. The court may also take a dim view of that and could affect the outcome of any costs order made against you.

    I have some questions for you:

    1. Are you able to post up the text that was submitted as their witness statement to support the application? Make sure any personal information is redacted including the court claim number.

    1a. Per Pezza54's point, did the application come with any evidence to support the claim?

    2. Are you able to give a timeline of events leading up to the request for judgment? For example, claim was issued on XX/XX/XX, request for judgment made on XX/XX/XX, default judgment granted on XX/XX/XX, N244 form for request to set aside default judgment dated XX/XX/XX.

    Leave a comment:

  • Pezza54
    Sorry, meant N9 not N1 on my last post.

    Leave a comment:

  • Pezza54
    I can understand a ccj being set aside because the PoC was sent to the wrong address.
    But a defendant not copying the address on form N1 correctly? This would mean a defendant could delay submission of documents by obtaining a certificate of posting with an empty envelope posted to an incorrect address.

    Leave a comment:

  • Pezza54
    CPR are difficult to follow so I could be wrong.
    CPR 13.4(3) states that an application to set aside judgement must be supported by evidence. To comply with this rule the solicitor must prove he or she posted the acknowledgement of service and defence to the wrong address..
    Personally, I would wait to hear the outcome from the court. If you are unhappy with the outcome you could ask the court on what evidence was the decision made.

    Leave a comment:

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