CCJ and n244 form help

[davidsilva21]

Hello everyone,

I found out on Saturday that I have CCJ against me from a customer who wanted a partial refund on a car that was sold to her 2 years ago, my old business was a second hand car sales business that was liquidated in July 21 and completed in apr 22

I have spoke to the CCBC court this morning who has advised me that the claimant submitted a claim for £1060 for a partial refund on a car that was sold to her for £3000. I had a lot of back and forth with the customer at the time before this advising her that we would not be refunding the amount as there was nothing up with the car.

She then went forward and took the claim to court but the problem is she sent all the paperwork to the company address on the invoice(my old home address) which I haven't lived at for over 4 years(so I haven't received any letters or paperwork)

The invoice that was provided from her was from the ltd company not myself, the funds where paid into the ltd bank account and all corresponace was from the ltd company email address. I right in thinking the CCJ should have been registered against the ltd company as it was the company that sold her the car?

II am in the process of filling in the N244 form and attempt to have it set aside by a judge as I have not received any paper work in regards to the court and my defence being that there was nothing up with the car and it should of been the ltd company that received the CCJ and not me personally?

My question is on the n244 am I explaining in section literally the reason for the set aside? ( the fact the paper were served to an old address and it should of been against the company and not me personally)
or am I explaining my full defence in this section?

Thanks

[R0b]

Hello

If it is true that the contract for the sale of the car was between your limited company and the customer, then you should have no problem getting the default judgment set aside since she has incorrectly sued the wrong person. You could go as far as submitting a claim yourself for defamation but that could be an expensive route you don't want to pursue. Regardless, you will need to provide some evidence that the sale was between the limited company and the customer.

Assuming you can do that, then it might be sensible to also ask for an order at the same time so that the court enters summary judgment in your favour and dismiss her claim to avoid wasting further time and resources on all sides including the court.

Before you go any further, I suggest you read my guidance piece to help you understand the process and it also explains how to obtain the relevant court paperwork which you should ideally obtain before submitting the N244 form otherwise you are taking a risk not knowing the contents of that claim and you only get one shot at this.

Once you have read the guide, if you have any questions after that then feel free to ask and will see what we can do.

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

[davidsilva21]

Thank you for your reply, I shall read the guide tonight and any further questions I shall post tomorrow.

[davidsilva21]

I have read the guide and found it very informative so thanks for the link, I ended up finding the legal beagles guide off the back of it with the templates too which are brilliant.

Do you think it would be wise to contact her for a consensual set aside? or go straight ahead with the n244 form.

so far my understanding will be to fill out the n244 with a witness statement and a draft order attached, I have pasted what I am going to attach below, do I need to include my defence on this?

draft order

IN THE XXXXXXXXXXXXXXXXX COUNTY COURT

Claim No. XXXXXXXX

BETWEEN:

CLAIMANT’S NAME

Claimant

– and –

Defendant

YOUR NAME

_________________________________

DRAFT ORDER _________________________________

Upon reading the defendant’s application dated ……………….

It is ordered that:

1. The judgment dated 16/08/2021 be set aside.
2. The Defendant shall file and serve its Defence by 4pm on (what time frame do I give).
3. The Claimant do pay the Defendant’s costs of this application to the sum of £275
4. The Claimant has permission to file and serve a reply if so required.

IN THE XXXXXXXXXXXXXXXXX COUNTY COURT

Claim No. XXXXXXXX

BETWEEN:

CLAIMANT’S NAME

Claimant

– and –

Defendant

YOUR NAME

_________________________________

WITNESS STATEMENT OF YOUR NAME _________________________________

I , YOUR NAME of YOUR ADDRESS , being the Defendant in this case will state as follows;

1. I make this Witness Statement in support of the application for an order that the judgment in this case (Claim No. XXXXXXXXXXX Judgment dated16/08/2021) be set aside.

2: CPR 13.3 states (1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

3. I learnt of the existence of this claim on the 12/08/2023 when I checked my Credit File [EXHIBIT A]

4. My address changed in September 2019 and a redirection service was in place from DATE to DATE [EXHIBIT B]

5. I did not receive any court paperwork or any written correspondence from the claimant or courts

6: On 17/08/2023 I made a written request to the Claimant/Solicitors inviting them to consent to set aside the judgment due to the reasons in paragraph 4.

7. The Claimant did not respond to my request / turned down my request.

8. I therefore respectfully request that the Court sets aside the judgment in this claim and allows 14 days for me to submit my defence.

Statement of Truth

I, YOUR NAME, the Defendant, believe the facts stated within this Witness Statement to be true.

Signed: ________________________________

Dated: ________________________________

[R0b]

I think it would be sensible to write to the claimant and see if they are willing to consent to setting aside the judgment and discontinuing their claim on the basis that she has issued a claim against you personally when in fact the contract was actually between herself and your company. If she refuses or you do not hear back from her, that should give you additional ammunition to recover the costs and fees you have to pay but also the time spent on working on the application, preparing for the hearing etc. because based on what you said, it should have been obvious that she sued the wrong person.

For your application, I would recommend completing (1) N244 application (2) witness statement (3) draft order (4) Defence. The reason for including a defence is to show the judge that you will have a reasonable prospect of success but will also become more obvious and clear if you also seek summary judgment in your favour at the same time which will need to be part of question 3 in the N244 form.

I have a set of set aside examples for these documents floating around somewhere which could help give you a flavour of what you will need to do and how to set it out. They are based on a parking ticket but you will need to re-draft the witness statement and defence to reflect your current situation though we can help you formulate that once you have had a first go yourself - let me know and I will dig them out.

[davidsilva21]

previous post has been flagged by moderators, I have included all the things I have done currently. If you could send over templates links that would be great

[R0b]

I have attached an example letter you could send to the claimant and I would recommend that you send it both by email and post. Feel free to change the contents as you please but I would only offer her no more than 7 days to respond as you need to be prompt in making the application to the court. The letter explains that a consent order will be enclosed and you could modify the consent order to reflect the conditions I mentioned or add any extra conditions you want as you please.

As for your witness statement, I don't think it's going to cut it as currently drafted. It is vague at best in that contains no background to the dispute nor does it reference the criteria for relief from sanctions because, setting aside under CPR 13.3 means you have to jump through a couple of extra hoops. Also there's no reference to your defence which I strongly recommend you either prepare a draft defence and include it as part of your application or alternatively you can explain your defence in your witness statement under a separate heading.

I think first things first, you should get that letter out asap and that will allow you to get the rest of your application like your witness statement and defence arguments whilst you wait for her to respond. That's my opinion but it is your issue so you are free to go about it anyway you like.

[davidsilva21]

Rob thank you, your letter is much better than anything I could have drafted. I really appreciate your help. I have drafted up a draft defence and attached. I have modified the letter and added a consent order and ham ready to send to her today. I added this onto the letter.

IN THE COUNTY COURT BUSINESS CENTRE CLAIM NUMBER:


CLAIMANT

AND

DEFENDANT




CONSENT ORDER




UPON the parties agreeing that, as a result of the above, there be good reason to set aside the Judgment pursuant to CPR 13.3 (1) (b).

It is agreed BY CONSENT that:-

1. The Judgment entered on 16/08/2021 be set aside;

2. The entry be cancelled and removed from the register;

3. The Claim be dismissed; and

4. There be no Order as to costs


SIGNED …………………………….
SIGNED ………………………………….
Claimant Defendant


below is defence

I dispute the claim against me as the car was sold to claimant by company company number 00000000. Therefore the claim should of been lodged against them not me personally. The company entered insolvency in July 2021 and was liquidated in April 2022.

I received no paper work from the court or from claimant as everything was sent to old address. I moved out of this address on 27/09/2019 and have no access to it since then. Therefore when the claim was originally submitted in 2021 I had no idea and could not defend myself.

The company received phone calls and emails from claimant, explaining that she would like a refund for a car due to the engine not being brand new. She then complained about the odour in the car.

The engine being new to the car and not a brand new engine was explained to her at point of sale, simply stating that it would not be cost effective to put an “brand new” engine at a cost of around £4500 in a car valued at £3000, and the engine was simply “new” to the car. The garage details that supplied and fitted the engine were given to claimant with the paperwork included in the sale of the car, and claimant was told to contact them should she require any further information on the engine. The car was sold at a fair market value at the time.

In terms of the odour in the car, the car had fresh air fresheners in due to being professionally valeted. Upon her dissatisfaction of the odour company arranged and paid for a professional car Valeter to visit claimant home at a time suitable for her to professionally clean the car and be rid of any odours. After speaking to the valeting company they confirmed they would be returning to claimant home the next day to double treat the carpets and the smell would be gone. Payment was sent to them and they confirmed they had returned, this valet took place on 31/1/21.

The last correspondence between company and claimant was via email on 2/02/2021. claimant confirmed the Valeter had arrived at her home and had completed the clean. She also confirmed he would be taking away the carpet and returning with it. I would question that if she did not want the car and the smell was so bad why would she accept the valet and then continue to use the car until it had its MOT. I am not sure if she still owns the car or not but having not heard anything up until the company liquidated I presumed everything had been sorted.

I reiterate that this CCJ should have been lodged against company and not against me personally.

[R0b]

I'll respond to your defence later today when I have more time but the consent order you have uploaded, is that what you intend to send to the claimant with the letter? The reason I ask is that you have no order as to costs so if she does consent then you won't be able to recover the cost of the application fee. I assume it's not the consent order because it references CPR 13.3 but I wanted to check and make sure you understood what you are doing.

[davidsilva21]

Yes it was what I was going to send to her with the letter. I used the template off the legal beagles website but I’m glad I double checked

[R0b]

I would probably amend it as follows (prices have gone up on application fees so consent application is now £108):

1. The Judgment entered on 16/08/2021 under claim number XXXXX be set aside;

2. The entry be cancelled and removed from the register;

3. The Claim shall be dismissed; and

4. The Claimant shall pay the Defendant's costs in the sum of £108 within 14 days from the date of this order.

[davidsilva21]

Thanks it now looks like this

IN THE COUNTY COURT BUSINESS CENTRE CLAIM NUMBER: XXXXXXX

CLAIMANT

AND

DEFENDANT


CONSENT ORDER


UPON the parties agreeing that, as a result of the above, there be good reason to set aside the Judgment pursuant to CPR 13.3 (1) (b).

It is agreed BY CONSENT that:-


1. The Judgment entered on 16/08/2021 under claim number XXXXXXX be set aside;

2. The entry be cancelled and removed from the register;

3. The Claim shall be dismissed; and

4. The Claimant shall pay the Defendant's costs in the sum of £108 within 14 days from the date of this order.


SIGNED …………………………….
SIGNED ………………………………….
Claimant Defendant

[davidsilva21]

am I right in thinking it should be 13.2 on the consent order or is 13.3 correct

[R0b]

13.2 is a mandatory set aside where there has been a procedural error. The most common one is where the claimant has served the claim form to the wrong address and because it was sent to the incorrect address the relevant time period for filing an acknowledgement or defence never expired because the time can only begin once the claim form has been validly served. There's nothing that you have suggested this isn't the case so I can't really comment.

Otherwise I would amend slightly as below:

UPON the parties agreeing that there be good reason to set aside the Judgment pursuant to CPR 13.3(1)(a) and 13.3(1)(b), on the basis that the Claimant has wrongly issued a claim against the Defendant who was not a party to the contract concerning the Claimant's dispute.

Also it may sound obvious but make sure your name is listed as the defendant and not the claimant in the consent order otherwise you will have to pay the claimant £108!

[davidsilva21]

Thanks rob

Sorry I thought I had mentioned that The paperwork was issued to me and my old address aswell so I never seen received any documentation from the courts, would it be worth adding 13.2 in aswell.

Letter is pretty much ready to go now so thanks again, just awaiting clarification on that point and will email, post signed for and post 1st class today. The dead line is a week today so it will be 13 days after first finding the CCJ that I will submit the n244 form.