CCJ consent to set aside advice

[Amethyst]

You've made your application already, April is the hearing of that application, so if you agree stuff between parties you can send that in to court FAO: Judge xxxx regarding app hearing on xx April.... rather than making a new application for making the consent order, so far as I know anyway.

£100 to lodge a consent order is basically a 'with consent application' - you've already made a 'without consent' application so consent is part of that..

I'm so rubbish at explaining things so I hope that makes at least some sense.

[Maui85]

Thanks Amethyst,
That makes a lot of sense.

To throw a spanner in the works, I've done some more research on forums (including MSE), and because the PPC is CEL, 'you cannot rely on CEL to do a fair and proper set aside with consent'.

So I am holding fire on settling. Would it be wise to respond to their offer letter to confirm that liability is denied? Particularly as they 'reserve the right to produce this correspondence at hearing'.

[Amethyst]

Who is the judgment holder ? and who sent the letter with the consent offer ?

[Maui85]

Civil Enforcement Limited issued the CCJ. The letter with consent offer was sent by 'Legal team at CEL'

[Amethyst]

Ok. Is the comment on MSE actually based on something specific or just supposition ?

[Amethyst]

Personally, I would only apply to set aside to defend a case , and if, once set aside, I change my mind and settle the debt, then that's my business.There's no guarantee the set aside would be granted, by consent or not, and if not set aside I'd be really pee'd off if I'd paid it. But that's just me xxx

[R0b]

Sorry late to the party here, but I'll keep my view short.

Given that you have been aware of the CCJ for what appears to be over 12 months, I think you could be at serious risk of a judge refusing to set aside the CCJ at a hearing and, any appeal to that refusal might be very difficult to overturn as the judges have a bit of discretion when it comes this.

Regarding the comment you saw on MSE, doesn't make much sense without some background to it, but if I were to guess, I think what the comment is saying is that you can't rely on CEL to draw up the Consent Order. In other words, you should draft the Order yourself and not rely on CEL.

Given the information you've supplied, if I were in your shoes I would just agree to get the CCJ set aside, draw up the Consent Order and get CEL to sign and return it to you asap; put a deadline on it and inform them that if they don't get back to you then you'll consider seeking your full costs of the application plus the cost of attending plus the cost of preparing and drafting the application at the litigant in person rate of £19 per hour; put an estimate of your time spent on all of this and insert a figure. Your aim will be to put a little fear factor into them and if they see a figure your seeking, then it could make them sign the Consent Order more speedily if on the hook for paying costs.

As an aside, if CEL are offering to settle it could be that they don't want to attend court because (1) it will cost them, (2) they might view your application as being successful and don't want to pay costs in excess of what they are claiming, especially if you have a defence which could cause them to lose. I suspect they have lost set aside applications before and no doubt slapped with costs that eat into their profits, so the easiest way is to offer to set aside and settle.

Ordinarily, I would probably say that you should refuse their offer but given the circumstances, I don't think you are in the best position here, so on this occasion it might be an instance of absorbing the cost and guaranteeing the CCJ to be removed. Alternatively, take the risk in court and if you lose, you are going to have the CCJ on your file for 6 years since the date of judgment - that will definitely hinder your mortgage applications so I know what I would do in this situation.

[charitynjw]

Ok. Is the comment on MSE actually based on something specific or just supposition ?

CEL are well known in the parking world (if you get my drift, Ame!)

https://www.google.co.uk/search?rlz=...w=1366&bih=657

Default CCJs......more of a business model, as opposed to a model business

When faced with a decent defence they tend to fold, so they seem more comfortable with the back door method...default CCJs.

& their pleadings are usually......... 'pleading awful!'

[Maui85]

Hi Amethyst and R0b,

Thank you both for your advice. Before posting my draft Consent Order on here (and also the complete MSE comment), please could you clarify something for me? Amethyst has posted earlier in this thread:

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.

but having read Timsters previous thread the advice seems to be the opposite way round (https://legalbeagles.info/forums/for...side-what-next).

So to confirm, I need to prepare a Consent Order that contains the terminology 'Claim is withdrawn', as per this consent order - https://legalbeagles.info/forums/fil...ch?id=1177269? The consent order I have currently drafted looks similar to this one - https://legalbeagles.info/forums/fil...tch?id=1177225, but I have a feeling that this is an incorrect version.

Or is it not within the judge's power to withdraw the claim?

Thanks for your help - my head is spinning and I really don't know what to do.

[Amethyst]

No you want Claim is dismissed as the Judge can't withdraw the claim, only the claimant can do that - ref https://legalbeagles.info/forums/fil...9&d=1519896292

[R0b]

I agree with Amethyst.

Nothing within the Civil Procedure Rules allows a court to withdraw a claim; so you need to change the wording to dismissed.

[Maui85]

Thanks both - please see my attempt at a draft order attached. Does this look correct to you? Or would you suggest any amendments?

The full comment from MSE was - 'I've never seen [named Claimant] do a 'proper set aside with consent' and posters who have tried, have ended up paying [named Claimant] only to find they can't contact them and can't get the consent they need to show the court...and they still have the CCJ'.

However, if I state / make it a clause in my letter that I won't pay the settlement until the executed consent order is received then this should circumvent the above issue? Perhaps the PPC may be more willing to ensure that the consent is in place as I have already filed the set aside application with the court, but it's anyone's guess I suppose.

[R0b]

I'm not so sure the way that Consent Order is drafted, will be up to scratch. CEL will likely want payment being agreed in the body of the Consent Order because as it stands, your drafted Order means they get bugger all.

Might I suggest something along the lines below.

BY CONSENT IT IS ORDERED THAT:-

1. The default judgment dated [XXXXX] be set aside.

2. All further proceedings be stayed upon the terms that the Defendant do pay to the Claimant the sum of [AMOUNT] by 4pm on [DATE] in full and final settlement of the Claimant's claim.

3. In the event of the Defendant satisfying the terms set out in paragraph 2 of this Order, the claim shall be dismissed.

4. If the Defendant fails to make payment by the date and and time as agreed the Claimant may apply to restore the claim.

5. There be no order as to costs.


The above should not pose any difficulties to accept which should give the best of both worlds in that you get the CCJ set aside, the balance to be paid within X days and CEL have the benefit of being paid.

[Maui85]

Thanks Rob, I have made the edits you have suggested and plan to send alongside a letter.

Could I ask about the next steps if/once I am in possession of a signed consent to set aside order and have submitted?

If the judge does not give it the nod, am I still in a position to attend the planned court hearing and provide more evidence / argue my case?

[R0b]

Once you've got the signed Order from CEL and you've signed it yourself and submitted the application, it is usually a rubber stamp exercise. There are however, some occasions where you will get the meticulous judge who wants to scrutinise everything and make sure everything is above board. So if the Consent Order isn't signed off by the court, it is likely that a judge would order a hearing before deciding whether to set aside.

Only seen this on a handful of occasions and usually down to the defendant putting something into the application that gives the court cause for concern, like admitting that they knew about the CCJ for as long as 2 years. you only need to state in the relevant section on page one that you are seeking a set aside and the parties have agreed by consent to set the default judgment aside in the form attached to the application; nothing else is generally needed other than box ticking.