Does CPR 6.9 allow for mandatory set aside if claim served at old address.

[Curious_101]

I was in a dispute with a merchant, and succeeded in a chargeback. The merchant appears to no longer wish to pursue this. At least they seem to not want to as I requested they delete all personal detail they hold on me which they have nominally agreed to, under my right to erasure. I specifically mentioned that if they wish pursue it through litigation they may keep my data instead but give me an update on the information they hold on me which they have chosen not to.

This merchant was never explicitly provided with my address by me, at least as far as I am aware, so they should never have had my address to begin with, but who knows, perhaps my bank provided them with them.

However, having read horror stories about CCJs issued at old addresses I was wondering if CPR6.9 actually allows for a mandatory set aside, if say they decided to pursue this several years later, as I would believe that surely they would have reasonable grounds to expect me to have moved at that point?

The amount involved was small less than £100 and I believe I am protected by the Consumer Rights Act 2015 which may give me discretionary grounds to set aside anyway. However, it seems you would be gambling on a judge to use that as a defence.

I probably should had pursued my case via small claims instead, as it seems in England and Wales default CCJs are far too easy to obtain by sending them to old addresses, in fact there seems to be an entire industry built on this abuse. But what is done is done, and can only blame my naivety in not realising that chargebacks are probably a terrible mechanism to use in England and Wales due to the ridiculous ease in obtaining default judgments.

As a final note does anyone know if there will be further reforms to the claims system in England and Wales? It seems things are far fairer in Scotland, and it works much better there. No idea why this hasn't led to a better system in England and Wales yet. Are there any MPs leading the charge to reform the system, any petitions to at least have claims be sent by recorded delivery?

[atticus]

This is not grounds for *automatic* set aside of a default judgement, under CPR 13. But a court may well be sympathetic to your application.

[pc52straw]

As far as I can tell, CCBC don't even check their own inboxes let alone read a claim form before granting a default judgement. They are literally going by one thing only... A timer countdown of X days since claim number was generated.

Imagine filing a claim against Godzilla for flattening Tokyo last October, where the CCBC granted a default judgement simply because they didn't see an AOS prior to receiving the DJ application...

A sanity check conducted by a sensible 11 year old would observe that downtown Tokyo's has had no kaiju attacks at all, so even if Godzilla does exist and was served, he obviously didn't do what was claimed therefore the claim has no merit whatsoever.

Nonetheless, CCBC staff will merrily sign off the default judgement irrespective of that fact, and the county court has to follow strict procedures which include officiously ignoring the fact that Tokyo wasn't pancaked by a kaiju in October until the charade eventually gets a hearing date.

[atticus]

Very helpful.

[Curious_101]

Thanks, for the advice to a newbie here from both above. I will just have to be careful with monitoring my credit report going forward. I will learn from this experience and consider small claims or some sort of ombudsman as my only avenue to redress going forward from now on. Although in my case it looks like the merchant may not pursue it any further. Just annoying that in the next six years they can just spring a random claim at an address which may have been associated with me in the past and win by default.

As mentioned by @pc52straw it seems the current court process is completely ludicrous and easily abused by claimants, I can just imagine the chaos of someone vengeful, filing bogus claims at your old address if they knew about it leading to many frivolous CCJs. This is such an obvious problem that it feels ridiculous nothing has been done at all about this.

At the very least they should make pretty much a guarantee to set aside judgments sent to old addresses and hear the merits of the case. But hey perhaps, despite thinking I am getting old, I may still be too young and naive to think simple fairness should be expected. Having read about all this I will be very protective about my personal contact details in the future.

[JK2054]

As far as I can tell, CCBC don't even check their own inboxes let alone read a claim form before granting a default judgement. They are literally going by one thing only... A timer countdown of X days since claim number was generated.

Imagine filing a claim against Godzilla for flattening Tokyo last October, where the CCBC granted a default judgement simply because they didn't see an AOS prior to receiving the DJ application...

A sanity check conducted by a sensible 11 year old would observe that downtown Tokyo's has had no kaiju attacks at all, so even if Godzilla does exist and was served, he obviously didn't do what was claimed therefore the claim has no merit whatsoever.

Nonetheless, CCBC staff will merrily sign off the default judgement irrespective of that fact, and the county court has to follow strict procedures which include officiously ignoring the fact that Tokyo wasn't pancaked by a kaiju in October until the charade eventually gets a hearing date.

Your misconceived, the staff don't sign it off, its an automaatic computer. there is no human involvemtn in MCOL nor OCMC default judgemenets

[JK2054]

I was in a dispute with a merchant, and succeeded in a chargeback. The merchant appears to no longer wish to pursue this. At least they seem to not want to as I requested they delete all personal detail they hold on me which they have nominally agreed to, under my right to erasure. I specifically mentioned that if they wish pursue it through litigation they may keep my data instead but give me an update on the information they hold on me which they have chosen not to.

This merchant was never explicitly provided with my address by me, at least as far as I am aware, so they should never have had my address to begin with, but who knows, perhaps my bank provided them with them.

However, having read horror stories about CCJs issued at old addresses I was wondering if CPR6.9 actually allows for a mandatory set aside, if say they decided to pursue this several years later, as I would believe that surely they would have reasonable grounds to expect me to have moved at that point?

The amount involved was small less than £100 and I believe I am protected by the Consumer Rights Act 2015 which may give me discretionary grounds to set aside anyway. However, it seems you would be gambling on a judge to use that as a defence.

I probably should had pursued my case via small claims instead, as it seems in England and Wales default CCJs are far too easy to obtain by sending them to old addresses, in fact there seems to be an entire industry built on this abuse. But what is done is done, and can only blame my naivety in not realising that chargebacks are probably a terrible mechanism to use in England and Wales due to the ridiculous ease in obtaining default judgments.

As a final note does anyone know if there will be further reforms to the claims system in England and Wales? It seems things are far fairer in Scotland, and it works much better there. No idea why this hasn't led to a better system in England and Wales yet. Are there any MPs leading the charge to reform the system, any petitions to at least have claims be sent by recorded delivery?

so have they issued a claim or what? are you just worrying, if so I'd say stop. If they've lost a chargeback they're unlikely to try small claims

[pc52straw]

JK2054 Thanks for the clarification. It's simply not within the procedure for anyone to scrutinise the claim form at this stage.

But that's even worse than I thought if default judgements are being signed off via a robotic process automation, without any human oversight, based on nothing more than the claimant requesting it.

[JK2054]

With upmost respect it is the best system. Even if court staff did "sign it off" they have no decison over anything because the merit of a claim is a judicial action. There are far too few judges to be dealing with that, teh courts are backlogged enough as it is.

[Curious_101]

so have they issued a claim or what? are you just worrying, if so I'd say stop. If they've lost a chargeback they're unlikely to try small claims

They have not, I also received from their data protection team saying the only data they have on me now is my email address and name, and vaguely "records of the transaction", whatever that means. They are a nationwide (not what I would consider huge but big) retailer and how they dealt with my complaints felt really automated which can be either great for me, (chances are they will just treat this a cost of business) or terrible if they just automate filing claims after x amount of time, (like car parking firms) who deliberately wait 4-5 years before filing.

Many thanks for reassurances, I am not super worried about it as there is a good chance I will not be moving for at least another few years, but 6 years will probably be a stretch. If they do automate claims 5 years later, then I might just have to suck it up with a very likely default CCJ. But I will deal with that hurdle when I meet it.

However, it is a bit of a grey area with regards to my dispute with them, along the lines of not satisfactory quality, not as described and faulty product. Their defence to me was largely it was still usable (although I could tell they knew it was substandard, obviously they didn't say this in writing). I can see a pro-business judge refusing a set aside along those grounds, but I am confident a more neutral or pro-consumer judge would likely set it aside, and allow the case to at least be argued.

Although having went through the process this time I am now aware of all the legal dangers, I largely charged back to make a point, as the money is inconsequential. Perhaps I acted too emotionally this time, as the saying goes principles cost time and money. If I end up with a default CCJ I will probably just have to suck it up.

My best option is probably to let them know if and when I have moved and ask if they want my address for the purposes of litigation.

The only annoying thing is none of their emails are explicitly definitive, I even asked explicitly whether they are considering litigation and they just avoided answering directly about that point but agreed nominally to delete at least most of my personal data.

One big drawback is I still have the goods and they have shown no inclination to accept a return, I can see them trying to use that as powerful technical point from a legal point of view. I may have to chase them up in writing about this as I do not have any explicit instructions from either the retailer or my payment provider what to do with this.

I also have not actually received anything explicitly in writing saying I have won or not, all I see is the online dispute being closed in my favour. It feels like technically it is still possibly under dispute in the systems. I used AMEX and it seems like merchants can dispute forever judging from my calls with customer services, not sure how long I should wait.

I have been given no explicit confirmations from either the retailer or my payment provider about anything, everything just seems implicitly implied that the dispute is over.

We will just have to see, but I still think that having learned of all these technical, procedural loopholes and pitfalls I do believe in England and Wales chargebacks should just never be used. It is simply too easy to just wait and sue someone and get a default judgment. Obviously the rules are fine when everything works as intended, such as the defendant receiving the claim form at their current address.

I honestly think something like adding in to the Civil Procedure Rules, terms such as after 1 or 2 years from cause of action and where no attempts to maintain contact with defendant has been made, any default judgments served at an old address should be mandatorily set aside would solve all these issues and in the long run save the courts time since you will have fewer firms trying to abuse the process to obtain default judgments, thus fewer requests to set aside a judgment, etc.

But I will wait a few more months to see if I receive anything more explicitly in writing, as it would probably cost more for me to return the item I might just end up paying something if the retailer explicitly agrees the matter is resolved and over, although I will probably have to be careful with this as I can see them arguing this as an admission of some kind. So it might be better to ignore the issue. But it just feels off that I don't know what to do with it now.

Either way, this is my first ever chargeback and I do not like the process at all, despite winning. Nothing feels final and the retailer just ended up avoiding questions throughout. Honestly, I thought I would even lose at some point since I still have the item, and it seems like a merchant could just refuse to accept a return and win by default to be honest. Why that hasn't happened I have no idea.

But thank you for the advice, it is much appreciated from a newbie's point of view.