Claimant agreed to set aside- What next?

[timster]

Hi all,

After a bit of back and forth with the parking companies solicitor, they have emailed with a letter attached (which I am assuming is going to be sent in the mail) and as far as I can tell they have agreed to a lower amount than the claim and have attached a filled out court form that they have said they will send to the court.

I am thinking we have achieved what we set out to do which was get them to consent aside but not sure it they are up to something.

If this is in fact the case though, what happens next and will that be the absolute end of it?

Thanks

[charitynjw]

Re: Claimant agreed to set aside- What next?

Hi timster

Without sight of what has been sent it's a bit difficult to say.

Could you post up redacted copies of those letters?

[timster]

Re: Claimant agreed to set aside- What next?

Pics attached

[R0b]

Re: Claimant agreed to set aside- What next?

That consent order doesn’t make sense to me. You can’t satisfy a judgment then get it set aside as that might be considered by the court as an abuse of process and could result in the application getting dismissed.

What the consent order should say is something like the CCJ is set aside, you agree to pay X amount and the claim is withdrawn.

Arguably if you were successful in your application should it go to court the general rule is that you are entitled to costs of your application and costs incidental to it i.e. preparing, drafting etc. The parking co. Is therefore generally worse off which is why they no doubt want payment now and leave it up to the judge to decide whether the claim should be set aside and withdrawn. If you dconsent to it then your taking a risk and could back fire on you, leaving you with a satisfied CCJ on record rather than it removed altogether.

[charitynjw]

Re: Claimant agreed to set aside- What next?

Yep, I agree with @R0b.

The actual draft consent order puts the cart before the horse.

Contact BWL & ask them to have another go.

Consent to set aside, & agreement to withdraw the claim, conditional to the £250 being paid in full.

& I think I'd also make the letter 'Without Prejudice'. (Although the previous email/letter tennis may make admission of liability which can be used in court...again, without sight....etc)

All BWL & their client want to do is to get their hands on the money.

250 quid for a poxy parking event!
Shouldn't be allowed.....at least, not without a mask & a gun, it shouldn't!

[R0b]

Re: Claimant agreed to set aside- What next?

Personally I wouldn't ask BW Legal to have another go, I would do it yourself and send it over to them. You should also be aware that the court expects you to make a prompt application on becoming aware, you've not suggested how long your conversation with BW Legal has been but you should bear that in mind when sending a letter (which will take the longest time to respond so you might want to consider calling them and/or asking for an email).

You should explain to them that the wording of the Consent Order is wrong and give them your revised version. I would also be inclined to remind them that any application to set aside is subject to the normal costs rules and as such you would be entitled (if successful) as a general rule, to your application fees plus the costs of preparing it at a rate of £19 per hour. I would also give them a short time period to accept or reject your consent order, something like 48 hours if you are prepared to make your application and pay the full £255.

As another point, it is probably in your best interests for you to make the application not BW Legal. Whilst claimants can make applications to set aside, what happens if the court rejects or dismisses the application? As you are not the application, you have no grounds for appeal nor can you force the claimant to make an appeal. Therefore you should do the application yourself and pay the consent fee too - better safe than sorry.

[Brandy1234]

Re: Claimant agreed to set aside- What next?

Pics attached

I'd be mindful 'consenting to any of this, if you are a litigant in person:


Consent judgments and orders

40.6

(1) This rule applies where all the parties agree the terms in which a judgment should be given or an order should be made.
(2) A court officer may enter and seal^(GL) an agreed judgment or order if –
(a) the judgment or order is listed in paragraph (3);
(b) none of the parties is a litigant in person; and
(c) the approval of the court is not required by these Rules, a practice direction or any enactment before an agreed order can be made.
(3) The judgments and orders referred to in paragraph (2) are –
(a) a judgment or order for –
(i) the payment of an amount of money (including a judgment or order for damages or the value of goods to be decided by the court); or
(ii) the delivery up of goods with or without the option of paying the value of the goods or the agreed value.
(b) an order for –
(i) the dismissal of any proceedings, wholly or in part;
(ii) the stay^(GL) of proceedings on agreed terms, disposing of the proceedings, whether those terms are recorded in a schedule to the order or elsewhere;
(iii) the stay of enforcement of a judgment, either unconditionally or on condition that the money due under the judgment is paid by instalments specified in the order;
(iv) the setting aside under Part 13 of a default judgment which has not been satisfied;
(v) the payment out of money which has been paid into court;
(vi) the discharge from liability of any party;
(vii) the payment, assessment or waiver of costs, or such other provision for costs as may be agreed.
(4) Rule 40.3 (drawing up and filing of judgments and orders) applies to judgments and orders entered and sealed by a court officer under paragraph (2) as it applies to other judgments and orders.
(5) Where paragraph (2) does not apply, any party may apply for a judgment or order in the terms agreed.
(6) The court may deal with an application under paragraph (5) without a hearing.
(7) Where this rule applies –
(a) the order which is agreed by the parties must be drawn up in the terms agreed;
(b) it must be expressed as being ‘By Consent’;
(c) it must be signed by the legal representative acting for each of the parties to whom the order relates or, where paragraph (5) applies, by the party if he is a litigant in person.

[R0b]

Re: Claimant agreed to set aside- What next?

@Brandy1234

Consent Orders can usually be dealt with by an officer of the court other than a judge where the two parties are legally represented which is what you have referenced.

If one of the parties is a litigant in person then it must be approved by a judge but doesn't stop both parties from consenting to an order.

[timster]

Re: Claimant agreed to set aside- What next?

The first email was sent to excel parking as on 11 December after contacting the court to enquire earlier that day (after several consecutive days of trying to get through to the courts) , there was no response so followed up on 15 Dec again no response. First email sent to BW Legal on 20 December again no response until 10th Jan asking to confirm our address for security reasons.

Never acknowedged we knew what the claim was regarding or admitted liability, did offer payment early on to get consent to set aside as we are close to needing to change mortgages and need this sorted.

Should I be emailing them today to tell them we need to submit the claim and will pay the 150 balance once the court has agreed to set aside?

This doesnt feel like justice but believe me Ive got far more important things to deal with in our lives and want rid of these pests.

[Brandy1234]

Re: Claimant agreed to set aside- What next?

@Brandy1234

Consent Orders can usually be dealt with by an officer of the court other than a judge where the two parties are legally represented which is what you have referenced.

If one of the parties is a litigant in person then it must be approved by a judge but doesn't stop both parties from consenting to an order.

The last thing any litigant in person needs is an officer of the court rubber stamping a 'consent' order presented by the Claimant.

The Claimant is looking to relieve itself of its liability to pay the OP's costs. Not good for the OP imo.

- - - Updated - - -

The first email was sent to excel parking as on 11 December after contacting the court to enquire earlier that day (after several consecutive days of trying to get through to the courts) , there was no response so followed up on 15 Dec again no response. First email sent to BW Legal on 20 December again no response until 10th Jan asking to confirm our address for security reasons.

Never acknowedged we knew what the claim was regarding or admitted liability, did offer payment early on to get consent to set aside as we are close to needing to change mortgages and need this sorted.

Should I be emailing them today to tell them we need to submit the claim and will pay the 150 balance once the court has agreed to set aside?

This doesnt feel like justice but believe me Ive got far more important things to deal with in our lives and want rid of these pests.

If it doesn't feel like justice, then it isn't.

There is no quick fix.

If you want justice, you have to follow court procedure rules

[R0b]

Re: Claimant agreed to set aside- What next?

The last thing any litigant in person needs is an officer of the court rubber stamping a 'consent' order presented by the Claimant.

The Claimant is looking to relieve itself of its liability to pay the OP's costs. Not good for the OP imo.

As I said, where one party is an LIP then it can only be approved by a judge rather than any officer of the court i.e. a clerk. This is presumably put in place to make sure a judge reads over the terms and if there are any concerns then he can order the parties attend a hearing and make sure the LIP understands what they are entering into.

Not sure whether you have read the previous posts but I did point out the flaws in the Consent Order but also suggested that the OP draft their own Consent Order and supply it to BW Legal. Sure, the Claimant is trying to avoid liability for potential costs but at the the same time the OP has said that they are close to changing mortgages so the issue appears to be time sensitive. Issuing an application to set aside and a hearing date might not arrive in time before the OP is due to change mortgages.

Seems to be the OP has taken a pragmatic view on this and wants rid of it as soon as possible in order to avoid problems with mortgage and if that means paying for it to go away to get a better mortgage rate in the longer term then so be it. Perhaps if the situation was different, the OP might have taken a different view on things.

@timster, I've attached an example consent order than you may wish adapt to suit your needs and send over to BW Legal. I think sending emails again and waiting for a response is a long winded route. If you are going to send an email, pick up the phone straight away and tell them you've sent it and that it needs to be dealt with immediately. If they don't respond within X day, then you will have no choice but to issue an application for set aside and claim costs back. Again, you should not be waiting on the claimant or their solicitors to get back to you, the court expects you to make a prompt application and that would usually be within the first couple of weeks of becoming aware. You are now over a month since you wrote to Excel and the longer you leave it, the more risk you take in potentially not getting the CCJ set aside.

[Brandy1234]

Re: Claimant agreed to set aside- What next?

As I understand this, the Claimants got a default judgment, that's to say, the claim was not defended and the claimant requested a court officer sign off and agree a default judgment in the OP's name.

The OP is negotiating to pay off the underlying debt without further redress to court.

The claimant has proposed such redress be done by way of consent, which they intend to submit to court for another court officer to sign off.

With respect, if the OP did not defend the claim because the claim was never received - it more makes sense to submit an application to set aside on that basis, there is no real need to consent to anything, when a Judge will readily set the default judgment aside, so long as the OP can prove they did not receive the claim and can show the court they have a good defence.

So, instead of giving a firm who obtained a default judgment a sum of £250, why not add £5 and make an application to set the default judgment aside?

[timster]

Re: Claimant agreed to set aside- What next?

Thanks to all for weighing in on this, its really appreciated to get advice with this.

Just to clarify my point- Yes we didnt get the court claim through as it was sent to an old address and resulted in a ccj by default.

I think they did this on purpose but thats irrelevant.

I have offered the solution of paying them what I suggested be a fair amount to compensate them for their losses in return for them retracting/ consenting to remove etc the ccj.

Not because I agree that what they do is fair but the fact that it isnt my place to decide what is fair. The want £150 which is crazy to me but again I dont have the time or intelligence to prove this.

What I want is to get rid of the claimant and rid of the ccj in the fastest and cheapest way (in that order).

Can I tell them to submit the consent order and pay for it, once passed pay the balance? Thus doing away with the above (which confuses me a little if Im honest!)

[R0b]

Re: Claimant agreed to set aside- What next?

Making a payment on a CCJ is considered ad admission of liability and a judge (who is savvy enough to read that Consent Order) will not order the removal of the CCJ on the basis that despite the fact it was a default judgment, you paid it and therefore accepted that you are liable. Instead, the judge might say you can apply for a certificate of satisfaction which costs £15 which you can show to credit reference agencies to show that it has been paid. I tend to presume that a satisfied judgment is no better than an unsatisfied judgment as lenders will still know that you failed to pay an outstanding debt on time.

If you want to go ahead with the Consent Order provided by BW Legal and take the risk that it might get knocked back, then go ahead, but you can't blame anyone but yourself if it doesn't go your way. There is really two way of getting around this in your favour:

1. Write back to BW Legal with a robust response and outline to them that their client is at fault and failed to carry out sufficient checks (assuming your details were all up to date at the time) thus obtained default judgment and in addition you are likely to have a reasonable prospect of successfully defending the claim which means that if the court grants your application to set aside, their client is going to be liable for the application fees of £255 and a LIP hourly rate at £19 per hour (you could easily look to claim 5-10 hours of time spent). That being said and in light of you wanting to come to a swift agreement, you are prepared to pay the consent fee, and a (reduced) sum of £60? £100? to their client in full and final settlement. If they don't accept within the next 48 hours you will submit your application to set aside. The example Consent Order above is straightforward, it says that you default judgment is set aside, you agree to pay an agreed amount, Excel withdraws their claim on that basis and no further costs are awarded to either party. It is much much fairer than the deal you are getting with BW Legal's Consent Order.

2. Alternative to the above, you could make your application to set aside as Brandy1234 has suggested but then you might not get a hearing date before you are due to change mortgage provider. This all depends on how soon you need to change mortgage provider and it will take some time to draft a defence, witness statement and the application too. Is that time you can afford to do and very quickly?

As above, there is no quick fix to this which is what you seem to be looking for. You have to do things properly otherwise there you may as well leave the CCJ on your record for 6 years.

[timster]

Re: Claimant agreed to set aside- What next?

Thanks Rob

And its option 1 all the way, I don't want to give an x-factor-esque rundown on what I have going on, I just need this to be sorted.

Ive downloaded the example order you posted and am starting to edit now. I have a few questions if I may...

- Do I leave the terms (ie UPON..... AND UPON..... etc) as you put them or do I need to change anything?

- Do I leave the under dotted sections in the section starting 'BEFORE His Honour....' blank?

- What date should I put in point 3 as to when I will make them a payment?

- Should I sign this and include with the responding letter? I am planning to send tomorrow by recorded delivery alongside a fairly firm letter.

Thanks