CCJ consent to set aside advice

[Maui85]

I’d be very grateful for advice regarding a default judgment CCJ regarding a PCN that I was unaware of (both issued to an old address).


Details

Alleged violation - Dec 2015

PCN issued (assuming Jan 2016) - well outside 14 day limit and incorrectly issued (I still haven’t received any documentation about this)

CCJ issued - Dec 2016

Performed credit check - Jan 2018 and found out about CCJ

Delayed (stupidly - naive I know and wasn’t sure how to act, but didn’t appreciate implications until applying for my 1st mortgage in January this year. Addressed this in set aside application)

Eventually applied to have set aside - Jan 2019

Court date - April 2019

Settlement letter received from Claimant (‘without prejudice save as to costs’) - Feb 2019 - Stating: Consent to set aside, claim dismissed, no order for costs - £197 to pay (deadline to accept early March 2019)


I’m at the stage where I think it may be wise to settle (I have probably left the CCJ too long to risk a judge setting aside?) so am in the process of drafting a response for a reduced fee. Also, I would rather not have to go to court and would like the situation resolved swiftly.


Questions I have for anyone in the know regarding consents to set aside:

1. Is this risky / am I admitting liability by paying? Does that matter?
2. How likely is the judge to accept the consent to set aside from the Claimant? And if it’s not accepted, can I still go to court in April to pursue the set aside application currently in the system?
3. If successful, can I apply to get a portion of the £255 set aside application fee refunded (if no actual court hearing goes ahead)?

Excerpt from my draft response letter with regards to Claimant’s offer of settlement:

‘WITHOUT PREJUDICE SAVE AS TO THE QUESTION OF COSTS

I refer to the above claim. I am writing to acknowledge the claim against me and to confirm that liability is denied in full. I still have not received any information from you about the details of this claim or the cost breakdown as to why I am requested to pay £197.00. Furthermore, if as you state, that the address was provided to you on xxx, this is well outside the 14 day limit required to issue notice to keeper (assuming the infringement date is xxx).

Nevertheless, and notwithstanding the above comments, in the spirit of disposing of this matter swiftly and conveniently, I am willing to make an offer of settlement. I am interested in saving costs but have already spent £255.00 on court fees and will have to pay £100.00 in applying for a consent to set aside (which is not guaranteed). As such, I will agree to paying a fee of £60.00. This offer is made in full and final settlement of the whole claim, inclusive of interest and costs and is made entirely on a 'without prejudice' basis and with no acceptance of liability. ‘



Thanks very much for your help. This is completely outside my area of knowledge and I would really appreciate some expert advice.

[charitynjw]

Hi

Could you clarify something?

The PCN(s) & court claim were sent to a previous address, but why, exactly?
Did you update DVLA with your new address? If so, when?
Would it have been possible for the Claimant to have sourced your new address from other records before issuing the claim? (ie land registry, etc)

The linked article (below) could be of interest to you.
A government consultation has been conducted on this.

https://www.dailymail.co.uk/news/art...announced.html

[Maui85]

Hi

Could you clarify something?

The PCN(s) & court claim were sent to a previous address, but why, exactly?
Did you update DVLA with your new address? If so, when?
Would it have been possible for the Claimant to have sourced your new address from other records before issuing the claim? (ie land registry, etc)

Yes PCN sent to previous address due to slow DVLA address update (around 3 months - foolish I know - lesson well and truly learned).
Letting agent kept post for one month which I picked up and then returned all post to sender. Other addresses were current (banking, bills, tax, electoral register).
CCJ sent to previous address when all correspondence addresses were all up to date and current.

[charitynjw]

I added another bit to my previous post.....

The claimant has a duty (under Civil Procedure Rules) to take reasonable steps to ensure the correct address is used to serve court claims.
Maybe you could build this into your argument?

[Maui85]

Thank you, I will use this in my response to their 'settlement letter'.

Reading the following thread - https://legalbeagles.info/forums/for...side-what-next - I am slightly concerned about your comment re. the draft order putting the 'cart before the horse'. Am I at the same risk here? I don't quite understand 'You can’t satisfy a judgment then get it set aside', and how this would differ to me paying the requested '£197.00 in full and final settlement' in exchange for consent to the judgement being set aside.
Thanks in advance for your insight.

[Maui85]

If a consent to set aside order is refused, is it still possible to pursue an application to set aside by attending the scheduled court hearing?

[charitynjw]

In your case, a (default) judgment has been made, but it has not yet been paid.

I think that in most county court cases, if the case is discontinued by the fee payer in writing at least 7 days before the hearing date (usually because it is settled or discontinued for some reason), the fee is 100% refundable.
The link below (bottom of page 4 of link) seems to support this.

Then an application for set-aside by consent is made, conditional on the settlement figure (if any).
Fee for this is £100.

This seems the logical way of things, but I think I'll give someone else a shout for more input.

Amethyst

R0b

[charitynjw]

If a consent to set aside order is refused, is it still possible to pursue an application to set aside by attending the scheduled court hearing?

Refused by whom?
If you mean the Judgment Creditor (parking company), then yes, it's still 'game on' re the April hearing.

As it stands, you have a hearing date listed for April......set-aside without consent, which has been paid.
If you can negotiate a set-aside with consent, perhaps the court could continue with April on that new basis & refund the difference?
Give the court case management a ring on Monday (but you will probably need to put everything in writing, new app etc)

[Maui85]

Apologies for the confusion regarding refusal - I meant the judge reviewing the application to set-aside with consent (Claimant has consented to this, pending a settlement fee offer. Note: As I understand it, a judge would have to review this case rather than a court officer as I am a litigant in person). I have read some conflicting and confusing posts that indicate a judge may review a set-aside application and, even with consent from the Claimant, refuse to set-aside the CCJ.

To clarify, whilst I still have no evidence of the claim made and believe that I have a reasonable prospect of successfully defending the claim, I would now just like to successfully resolve the situation as swiftly as possible (and would rather not have to go to court, as the whole process seems very daunting and a positive outcome is not guaranteed), which is why I am considering this consent offer so seriously.

[Amethyst]

Settlement letter received from Claimant (‘without prejudice save as to costs’) - Feb 2019 - Stating: Consent to set aside, claim dismissed, no order for costs - £197 to pay (deadline to accept early March 2019)

Like this one? https://legalbeagles.info/forums/fil...tch?id=1177269

If so I'd redraft to this https://legalbeagles.info/forums/fil...tch?id=1177225 as per timster / Nesta 's threads the Judge can't order withdrawal/discontinuance.

Where's the mention of the £197 - in the consent order or on the schedule ?

And yes the Judge may not agree the consent order - if you get the set aside on the address issues though the claimant can discontinue on payment ( if that's what you wish to do ). You do have the issue of the delay in applying, but presumably you haven't mentioned that in your original N244 application?

[Maui85]

Hi Amethyst, so far I have only received a settlement offer letter 'Without Prejudice Save as to Costs' - please see attached for more information. No consent order has been provided yet, but I was planning on sending one with my response to the Claimant.

(excuse the sections where the envelope had been glued to the letter...)

And yes the Judge may not agree the consent order - if you get the set aside on the address issues though the claimant can discontinue on payment ( if that's what you wish to do ). You do have the issue of the delay in applying, but presumably you haven't mentioned that in your original N244 application?

The delay is a big concern for me. I did mention this in my N244 and admitted my ignorance with regards to the CCJ and its significance. Right now I see my best option as biting the bullet and paying, to give me the best chance of getting this set-aside.

[Amethyst]

Okay - in that case I think a consent order would be a good idea - unless you have shown a very good reason for the delay and a good prospect of success in defending the claim... the court won't set aside a judgment just because it affects your credit file etc...and sadly that you knew about it a long while ago and have done nothing with it, regardless of ignorance of court procedure you could have contacted the judgment holder to pay etc so it sounds ( to the Judge ) that you are only applying to set aside because of the effect it's having on you. I don't think you are all that fussed about not paying the £197 (and losing the £255 application charge) - in the grand scheme of things and mortgage applications and needing the CCJ gone it's a small price to pay I think? Once you have both signed the consent order and given a copy to the court it will be taken into account - there's no guarantees the court will accept it though. At least if you have paid the £197 and the judgment isn't set aside you can get a certificate of satisfaction and explain the circumstances to your mortgage provider/broker.

[Maui85]

Thanks very much, that was the way I was leaning and your advice has helped to cement my plans. It is not an insignificant sum, but as you say it is a small price to pay in the grand scheme of things.

Just to clarify, I did do a lot of digging last year to determine who the Claimant was and get details of the claim, first contacting Northampton County Court, then searching for the alleged incident using the court reference number provided, subsequently identifying the car park owner who eventually provided details of the Claimant who apparently manage the car park (convoluted, I know). I called and emailed the Claimant but have still yet to receive a response (as said previously, I still don't have details of the claim). But I do concede that I became stuck at this point and delayed in pursuing further.

Do you know why a judge may not approve the consent order?

Thanks again.

[Amethyst]

Narkiness... or it asks for something not in the Judges power to order ( like withdrawal )

Tbh if judgments were all set aside by consent because they've been paid, it kinda makes the judgment system pointless as there's no impetus to pay promptly to avoid a 6 year strike against your credit file. It's not going to cost you any more to agree the consent order and have it submitted to court as you already have an application in place, and if it is refused the hearing would proceed.

Also, sadly that you took steps to investigate the CCJ evidences to the court and the judgment holder exactly when you became aware of the judgment so the promptness argument against the set aside could probably easily be made at a hearing.

[Maui85]

It's not going to cost you any more to agree the consent order and have it submitted to court as you already have an application in place, and if it is refused the hearing would proceed.

You preempted my final two questions! So to clarify, I wouldn't need to submit the usual £100 consent fee with the consent order? And again, to clarify, if the consent order is not approved by the judge I can still make my application to set aside at the court hearing in April? (albeit with the big issue of the delay against me)

Again, thanks for all of your help with this.