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]

The CCJ is automatically removed after 6 years regardless of whether the debt is satisfied or not.

I should qualify my previous statements that a CCJ is not typically registered straight away, but usually when the claimant takes enforcement action such as sending out bailiffs or any other enforcement method available.

It may be possible therefore to pay the debt without the CCJ being registered on your partner's credit file but it is not guaranteed that it won't happen.

Thank you Rob, I will see if that is an option failing that, we will just go on as is and likely disregard any action from our side

[R0b]

The CCJ is automatically removed after 6 years regardless of whether the debt is satisfied or not.

I should qualify my previous statements that a CCJ is not typically registered straight away, but usually when the claimant takes enforcement action such as sending out bailiffs or any other enforcement method available.

It may be possible therefore to pay the debt without the CCJ being registered on your partner's credit file but it is not guaranteed that it won't happen.

[jeezy]

That's correct. CCJ will sit on your partner's file for 6 years but once your partner has paid it off, she can apply for a certificate of satisfaction from the court and provide evidence that the debt has been paid in full. The credit file will show that the CCJ has now been satisfied but in the grand scheme of things, that might not have much impact on her ability to obtain credit (if any) when lenders or service providers carry out a credit check.

I'm somewhat confused because you said your partner consented to the set aside so I don't know why the judge has struck out the application. Although a judge has the power to do that, they will only do so if there are good reasons.

It was foolish of your partner not to turn up to the hearing and I did stress that there could be consequences like this since she was the one making the application and then not bothering to turn up is a big no-no. Unfortunately, your partner is now going to have to live with those consequences.

Thanks, Rob and yes understood, if it sits for 6 years, does it only get cleared if it has been paid or that is the timeframe in which it expires?

[R0b]

That's correct. CCJ will sit on your partner's file for 6 years but once your partner has paid it off, she can apply for a certificate of satisfaction from the court and provide evidence that the debt has been paid in full. The credit file will show that the CCJ has now been satisfied but in the grand scheme of things, that might not have much impact on her ability to obtain credit (if any) when lenders or service providers carry out a credit check.

I'm somewhat confused because you said your partner consented to the set aside so I don't know why the judge has struck out the application. Although a judge has the power to do that, they will only do so if there are good reasons.

It was foolish of your partner not to turn up to the hearing and I did stress that there could be consequences like this since she was the one making the application and then not bothering to turn up is a big no-no. Unfortunately, your partner is now going to have to live with those consequences.

[jeezy]

Sorry I don't understand.

What do you mean by the application being struck out? Are you saying the judge dismissed your partner's application to set aside the CCJ or that the judge granted the set aside?

Unless the court agreed to set aside the default judgment, the CCJ stands.

Sorry I meant based on it being struck out, does this mean even with agreeing to make payments towards the amount owing the CCJ can't be removed?

[R0b]

Sorry I don't understand.

What do you mean by the application being struck out? Are you saying the judge dismissed your partner's application to set aside the CCJ or that the judge granted the set aside?

Unless the court agreed to set aside the default judgment, the CCJ stands.

[jeezy]

Just to follow up on this one, the application was struck out, Mortimer Clarke on behalf of Mercedes have now sent a follow up asking for an offer of payment which if not sent will then be referred to their client.

Am I right in that now the case essentially resets and can now dispute it as well as request all original documentation is sent across? What would procedure be to remove the CCJ ?

[jeezy]

Unfortunately I would disagree with admin on most points you raise.

Once you consent to the terms of the consent order, that's it you are bound by those terms which unequivocally states that there is a no order to costs. You can't at some future date then request at the trial hearing you now want to recover those fees when it was previously agreed there would be no costs order. If your partner wanted to recover those fees then your partner should not have consented to those terms and instead turned up today for the hearing. There is a plethora of case law that confirms this position.

Your partner is free to insert that into the defence (which strictly speaking, does not comply with the rules because a defence is a response to the particulars of claim) but in my view, its a non-starter and not even worth raising. The added giveaway indicating the consent order applies, is that admin has suggested the hearing is vacated which is usually done on the consent of the parties or if the court chooses to for one reason or another such as a lack of availability of judges.

Again, if the consent order agreed for your partner to file a defence within 21 days then the court will likely rubber stamp that consent order and turn it into a court order but you will need to wait for that to come through the post to confirm. No idea where the 30 days comes from and the court is in fact free to extend or reduce that period for filing a defence or, of its own volition, come up with an entirely different order around when the defence must be filed. Nothing you have stated indicates a defence must be filed within 30 days unless I am not privy to some other information.

Admin is right to get onto the defence right away because as I mentioned it is not a 5 minute job and to do any half decent defence, your partner probably needs a couple of weeks to draft something, review it and go through several iterations before filing it. You only get out what you put in.

Final point on emailing the court and the claimant. Yes, most if not all courts accept filing of defence by email so long as you email the right one. No you cannot email your defence to the claimant unless they have consented to receiving it by email. Consent can be implied if the claimant has put an email address on the claim form for service of documents, but failing that your partner will need to do it the old fashioned way (first class post or better, second class is not valid). Serving the defence without consent of the claimant or their legal representatives is not compliant with the rules and a one way ticket to getting a default judgment. There is no obligation on the claimant to point out your mistakes for non-compliance. I suggest you google the Supreme Court case of Barton v Wright Hassall which sums it all up in a few short words - read the rules and comply with them whether you are legally represented or not, and there will be consequences if you fail to comply.

It's not productive having two lines of support posting on here and then also discussing with admin because there may be things you have shared with admin that none of us on here are privy to so I can only go by what you are saying on this thread. I don't want to confuse things so I will bow out of this one and let you and admin work out a way forward.

Thank you for the informative response Rob, am working on the defence to put forward to the court on email. Sorry for any confusion, all facts put forward here are the same as what was sent to admin. It has now resulted in 2 differing verdicts but I think the consensus is to put forward the defence and in as much detail as possible

[R0b]

Unfortunately I would disagree with admin on most points you raise.

Once you consent to the terms of the consent order, that's it you are bound by those terms which unequivocally states that there is a no order to costs. You can't at some future date then request at the trial hearing you now want to recover those fees when it was previously agreed there would be no costs order. If your partner wanted to recover those fees then your partner should not have consented to those terms and instead turned up today for the hearing. There is a plethora of case law that confirms this position.

Your partner is free to insert that into the defence (which strictly speaking, does not comply with the rules because a defence is a response to the particulars of claim) but in my view, its a non-starter and not even worth raising. The added giveaway indicating the consent order applies, is that admin has suggested the hearing is vacated which is usually done on the consent of the parties or if the court chooses to for one reason or another such as a lack of availability of judges.

Again, if the consent order agreed for your partner to file a defence within 21 days then the court will likely rubber stamp that consent order and turn it into a court order but you will need to wait for that to come through the post to confirm. No idea where the 30 days comes from and the court is in fact free to extend or reduce that period for filing a defence or, of its own volition, come up with an entirely different order around when the defence must be filed. Nothing you have stated indicates a defence must be filed within 30 days unless I am not privy to some other information.

Admin is right to get onto the defence right away because as I mentioned it is not a 5 minute job and to do any half decent defence, your partner probably needs a couple of weeks to draft something, review it and go through several iterations before filing it. You only get out what you put in.

Final point on emailing the court and the claimant. Yes, most if not all courts accept filing of defence by email so long as you email the right one. No you cannot email your defence to the claimant unless they have consented to receiving it by email. Consent can be implied if the claimant has put an email address on the claim form for service of documents, but failing that your partner will need to do it the old fashioned way (first class post or better, second class is not valid). Serving the defence without consent of the claimant or their legal representatives is not compliant with the rules and a one way ticket to getting a default judgment. There is no obligation on the claimant to point out your mistakes for non-compliance. I suggest you google the Supreme Court case of Barton v Wright Hassall which sums it all up in a few short words - read the rules and comply with them whether you are legally represented or not, and there will be consequences if you fail to comply.

It's not productive having two lines of support posting on here and then also discussing with admin because there may be things you have shared with admin that none of us on here are privy to so I can only go by what you are saying on this thread. I don't want to confuse things so I will bow out of this one and let you and admin work out a way forward.

[jeezy]

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.

Thank you for your response Rob, i appreciate it, will contact court to see what outcome is, additionally received the following from admin which hopefully assists your assessment further

-would the defence include the request for costs to be claimed?
Yes, you can include a paragraph at end stating that you have had to make the application to set aside upon discovery of the CCJ and that you wish the court to order that the Claimant pay that court filing fee.
-do I have to send the defence before this weeks hearing on Wednesday
No, the defence has to be submitted within 30 days of the court agreeing to the consent order agreeing set aside. Personally, I'd get on to it asap. Wednesdays hearing has been 'vacated' and is no longer a factor in any of this.

-can the defence be sent to the court email address or it needs to go elsewhere Yes, the defence can be sent to the court by email, also to the Claimant but probably best to also send a hard copy with proof of postage to them also.

[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.

[atticus]

For a hearing 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?

[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?