Confused with Set Aside Court Hearing Due Next Week

[jeezy]

Hi All,

The background is mercedes claimed costs for a lease that ended where no correspondence was received as it was sent to a previous address. When it came to light, judgement was already in place years later put in a set aside.

Have now received the following for a court hearing next week but am unsure as to

- what would be needed to be provided from our side for the hearing and is it to be emailed to the court?

-they say they agree to the set aside if a fully pleaded defence is provided, what and to who should that be served to?

- cant make out the hearing details and whether need to attend it and how?

Any additional advice on this would be greatly appreciated, the set aside is what am looking to achieve before then looking at defending the charges where applicable

P,S How do i upload the attachments here?

[jeezy]

Attached are the letters received

[R0b]

Hi

Your first post is a little puzzling. Have you actually consented to the terms that Mortimer Clarke have offered? It's not an official consent order signed by either party but the way it's written suggests you have consented to this. Equally, the letter sent to you suggests you haven't consented and they have assumed you will.

So back to the question, have you consented or are you inclined to consent to the terms they are putting forward? You will be required to file a defence within 21 days based on their claim and that will be to the county court that will hear your case, which seems to be Watford.

The order also indicates no order to costs, so if you have incurred fees paying for the application then this order means you will not get that back - are you comfortable with absorbing the £275 fee or whatever you may have paid?

If you do consent, then you should respond to the email for clarification that you do consent to those terms. Given the hearing is in a few days, I would suggest you attend anyway because the judge may not get the email in time and assume you just never turned up. As it's your application, the judge might dismiss it and the judgment stands. Entirely up to you if you want to take that risk of not attending.

Personally, if I were in your shoes, I would not be consenting to the terms of that consent order. First, I would want any fees that I've paid returned. Second, why do you need to file a defence if they want to stay proceedings for 6 months? I would be saying that the claim is stayed 6 months and if the claimant wants to reinstate the claim, at that point they should pay to reinstate and only then you file your defence within 21 days. Doesn't make logical sense to file a defence and then immediately stay proceedings. There may be evidence that turns up in the meantime to support your defence.

I should say, if you do not consent, then you may be required to prove your case to set aside the default judgment so you need to be prepared for that. However, you may want to try and say to the judge first that you do consent but not on the terms offered by the claimant, and explain your reasons e.g. you want your application fees to be paid by them, when the defence should be filed, claim be stayed for 6 months to allow for discussions and if the claimant does apply to reinstate before the expiry of those 6 months, the claim should be struck out etc.

Finally, I don't understand what you mean when you say you cant make out the hearing details. The court letter will tell you the instructions as to the time and place you need to attend court.

[jeezy]

Hi

Your first post is a little puzzling. Have you actually consented to the terms that Mortimer Clarke have offered? It's not an official consent order signed by either party but the way it's written suggests you have consented to this. Equally, the letter sent to you suggests you haven't consented and they have assumed you will.

So back to the question, have you consented or are you inclined to consent to the terms they are putting forward? You will be required to file a defence within 21 days based on their claim and that will be to the county court that will hear your case, which seems to be Watford.

The order also indicates no order to costs, so if you have incurred fees paying for the application then this order means you will not get that back - are you comfortable with absorbing the £275 fee or whatever you may have paid?

If you do consent, then you should respond to the email for clarification that you do consent to those terms. Given the hearing is in a few days, I would suggest you attend anyway because the judge may not get the email in time and assume you just never turned up. As it's your application, the judge might dismiss it and the judgment stands. Entirely up to you if you want to take that risk of not attending.

Personally, if I were in your shoes, I would not be consenting to the terms of that consent order. First, I would want any fees that I've paid returned. Second, why do you need to file a defence if they want to stay proceedings for 6 months? I would be saying that the claim is stayed 6 months and if the claimant wants to reinstate the claim, at that point they should pay to reinstate and only then you file your defence within 21 days. Doesn't make logical sense to file a defence and then immediately stay proceedings. There may be evidence that turns up in the meantime to support your defence.

I should say, if you do not consent, then you may be required to prove your case to set aside the default judgment so you need to be prepared for that. However, you may want to try and say to the judge first that you do consent but not on the terms offered by the claimant, and explain your reasons e.g. you want your application fees to be paid by them, when the defence should be filed, claim be stayed for 6 months to allow for discussions and if the claimant does apply to reinstate before the expiry of those 6 months, the claim should be struck out etc.

Finally, I don't understand what you mean when you say you cant make out the hearing details. The court letter will tell you the instructions as to the time and place you need to attend court.

Hi Rob,

Thank you firstly for your informative reply which has made things clearer for me. This is on behalf of my partner I have just checked and they said they did not consent

Reference responding to state that do not consent, how do i go about this do i need to put this in writing and email it to the court email address at the top of the letter or prepare it for the hearing date to present it in person?

Finally, in relation to the court hearing details, I assume you mean this will be on a separate letter received giving the details for the attendance.

Thank you again for your help on this

[R0b]

You can respond to the email that Mortimer Clarke sent to the court and make it clear that you do not consent to the terms as suggested. Mortimer Clarke have sent the email which suggests your partner has consented to the set aside on those terms when in fact that isn't the case - therefore MC are misleading the court by sending that email with the attached letter, a serious breach of their code of conduct. Should also state that the hearing is to go ahead and you will be attending on Wednesday. Just make sure you reply all to that email if that's what your partner intends to do, but if your partner has already consented, it would make your partner look pretty foolish if an email denying the consent only for MC to provide evidence.

The court letter about the hearing will tell you everything you need to know, it will not be done piecemeal. Go back and read the letter and it will give you a time and date and unless it explicitly states that it is a remote hearing, you should assume you need to attend in person. The fact you mentioned you have a court date and it's 25 October tells me that you already have this information so I am not sure what other details you are expecting from the court, can you elaborate?

[jeezy]

You can respond to the email that Mortimer Clarke sent to the court and make it clear that you do not consent to the terms as suggested. Mortimer Clarke have sent the email which suggests your partner has consented to the set aside on those terms when in fact that isn't the case - therefore MC are misleading the court by sending that email with the attached letter, a serious breach of their code of conduct. Should also state that the hearing is to go ahead and you will be attending on Wednesday. Just make sure you reply all to that email if that's what your partner intends to do, but if your partner has already consented, it would make your partner look pretty foolish if an email denying the consent only for MC to provide evidence.

The court letter about the hearing will tell you everything you need to know, it will not be done piecemeal. Go back and read the letter and it will give you a time and date and unless it explicitly states that it is a remote hearing, you should assume you need to attend in person. The fact you mentioned you have a court date and it's 25 October tells me that you already have this information so I am not sure what other details you are expecting from the court, can you elaborate?

Thank you, I believe the as set aside has been agreed to there is not a hearing as such tomorrow.

I will need to file a fully pleaded defence, can this be sent to the email that MC sent to the court? I looked on the forum for a defence template but at the link below there doesnt seem to be one asides from the Witness Statement, is it located elsehwhere?

https://legalbeagles.info/library/ho.../#draftdefence

[atticus]

https://legalbeagles.info/library/gu...-court-claims/

[jeezy]

https://legalbeagles.info/library/gu...-court-claims/

Thank you for your reply and for sending the link, will get onto it asap. Would car lease damages fall under consumer credit debt and thus using this template would be ok?

To confirm would I need to file the defence prior to the date given of tomorrow for the hering

[atticus]

I think that is called forward planning.

Others more knowledgeable about consumer credit cases can answer your question.

[R0b]

Bit lost on this now because you seem to go from saying you think a set aside has been agreed and there is no hearing but then there is a hearing tomorrow. Your partner needs to herself in order because if this is what she is like in front of a judge, I wouldn't be surprised if the judge dismissed the application altogether. Either the consent terms have been agreed or they haven't. If they have, tell the judge that they have been agreed, or if not, I refer to my earlier post.

The contents of the defence will be dictated by the particulars of claim filed by Mercedes and you haven't supplied any background information about the dispute. Equally, your reference to car lease damages falling within the Consumer Credit Act is also vague and doesn't make sense, so the answer could be yes or no depending on the question/issue.

[jeezy]

I think that is called forward planning.

Others more knowledgeable about consumer credit cases can answer your question.

Apologies if not clear Rob, i am going off a message kindly received from admin which I received below. My questions therefore refer to whether the defence template for CCD be applicable to use in this circumstance and whether I should send this to the court email address

The documents you have sent over show that the Claimant, Cabot have agreed to your set aside application by consent. There will not be a hearing on the 25th October 2023.
I am assuming you filed a set aside application to court upon discovering the CCJ? It would seem your opponent agrees that the documents may not have been sent to correct address. However, I am also assuming that you did not submit a fully pleaded defence with your set aside application?
Now that set aside has been agreed, you must draft and submit to the court and Cabot a fully pleaded defence, within 30days. We have templates on LegalBeagles that may help if you have not done this before.
Just on a further note, did you have to pay £255 to apply for the set aside?
If they sent it to the wrong address in the first place you should actively seek repayment of those costs.

[R0b]

If you have shared additional documentation with the admin that confirms your partner has explicitly consented to the terms of that set aside order put forward by Mortimer Clarke, then it would seem that your partner has mutually agreed to have the default judgment set aside on the terms described in that attached letter/email from MC to the court. Only your partner can verify whether those terms have been agreed or not. If they have not been agreed, then MC are misleading the court because a consent order requires consent from all parties involved, not unilateral consent.

As for the application fee (it's now £275 but was previously £255), if your partner did consent to those consent order terms, then your partner will not be entitled to the refund of the costs because your partner agreed to no order as to costs. In other words, each party bears their own costs and this is a typical stance from claimants but are in no way obliged to agree, since the general starting point is that the successful party should be awarded their application fees, but of course that starting point can be deviated from by mutual consent i.e. the proposed consent order terms.

A defence is not required for set aside applications but it does help to have one so the judge hearing the application can review and consider whether your partner has a good prospect of successfully defending the claim. It all depends on the basis that your partner made the application to set aside, whether it was on a mandatory basis where the court must set aside the judgment if certain procedures have not been met or a discretionary basis where there is some other good reason for the judgment to be set aside.

Is your partner planning on going to court today?

[jeezy]

If you have shared additional documentation with the admin that confirms your partner has explicitly consented to the terms of that set aside order put forward by Mortimer Clarke, then it would seem that your partner has mutually agreed to have the default judgment set aside on the terms described in that attached letter/email from MC to the court. Only your partner can verify whether those terms have been agreed or not. If they have not been agreed, then MC are misleading the court because a consent order requires consent from all parties involved, not unilateral consent.

As for the application fee (it's now £275 but was previously £255), if your partner did consent to those consent order terms, then your partner will not be entitled to the refund of the costs because your partner agreed to no order as to costs. In other words, each party bears their own costs and this is a typical stance from claimants but are in no way obliged to agree, since the general starting point is that the successful party should be awarded their application fees, but of course that starting point can be deviated from by mutual consent i.e. the proposed consent order terms.

A defence is not required for set aside applications but it does help to have one so the judge hearing the application can review and consider whether your partner has a good prospect of successfully defending the claim. It all depends on the basis that your partner made the application to set aside, whether it was on a mandatory basis where the court must set aside the judgment if certain procedures have not been met or a discretionary basis where there is some other good reason for the judgment to be set aside.

Is your partner planning on going to court today?

Thank you Rob, she is not planning to attend, should a defence statement be filed to the court in order for it to be considered?

[atticus]

For a hearing today?

[R0b]

Bit late for that now, filing a defence is not something you can just cobble together in the space of 5 minutes. Your partner will just have to wait and see what the outcome of the hearing, but it doesn't look good not turning up for your own application and generally doesn't end very well for the applicant. Your partner only has themself to blame if it doesn't go in her favour.

Suggest your partner contacts the court on Friday and see if there is an update to the application, they should be able to confirm the outcome and/or next steps if the judge has, by some miracle, decided to set aside the default judgment.

Would be interested to hear the outcome either way.