An Old Lowell CCJ

[MasterCoder]

I imagine claims are like busses sometimes and many of the rear their heads at the same time. I need some advice. The problem is as follows:

Back in 2015 before I was a little more savvy in this area, I received a claim form from Bryan Carter Solicitors on behalf of Lowell for a shop direct debt. I did everything by the numbers, CCA request, CPR request etc. and got nothing back from them. I filed a defence citing non-compliance with CCA/CPR. Distinct lack of documentation, no default notices. Absolutely nothing. Filed witness statements with the BC solicitors and the court and waited for my hearing.

The day before the hearing, I receive a letter from the court saying that my defence was struck out and default judgement was awarded because I'd filed my witness statement late. To be honest, I thought I had it in on time, (hand delivered to the court no less), but at the time I didn't know what I could do.

I emailed BC solicitors, not expecting much, but asked if they would agree to set-aside, (no fee involved there I believed), so that the case could be heard in front of a judge. I had absolutely no reason to believe that I'd lose the case since they failed to provide the agreement despite repeatedly asking for it and the 'evidence' in their WS was sketchy to say the least. A screen dump of something or another that no one can make head nor tale of (and I'm a software developer so I don't think i missed anything), not to mention they even said in their WS they couldn't say when it defaulted or even if a notice was sent. They didn't even include the agreement which, as I understand even now, is a requirement to even get the judgement.

At any rate, BC asked me to speak to the court but I was told I'd have to pay to set aside. I read online that I could, (if the claimants case was spurious), apply to set-aside and then reclaim those costs back from the other party. I made the horrendous mistake of speaking to BC and threatened to make the application and seek costs. Somehow I ended up agreeing to wait for the documentation since I was assured they could get hold of it and then I could pay it if all evidence was supplied.

I never heard another thing from BC or Lowell regarding this debt and to my surprise, the judgement is not registered. It isn't on the trust registry and doesn't show on my credit file. Being a bit of a green litigant, I assumed they had set-aside. I know, i know..stupid mistake. However, in nearly 4 years, they have made no attempt to enforce this CCJ.

I am currently defending another claim from Lowell and now, probably thinking this is a good stick to beat me with, it has reared its head again.

I have spoken to the court and they have confirmed that the CCJ is still there but they never 'redchestered' it..or something like that. Which is why it doesn't show on my file.

The problem I have is the amount of time that has passed. I've foolishly believed that this was dropped since I made it clear I'd seek costs if I applied to set-aside the judgement so made a silly assumption they've given up on it. This isn't the case.

They've still not attempted to enforce it, but today I've received a letter saying they are looking to start unless they hear from me. I've also had a text from Lowell Solicitors saying I must get in touch today.

Can i still successfully apply to set this judgement aside or has the time that's passed simply been too long to even consider it? I know if it went to court they'd not win since they don't have any documentation for it.

Advice or tips appreciated.

MC

[MasterCoder]

Considering sending this to the solicitors:

WITHOUT PREJUDICE

Dear Sirs,

I am writing to you regarding the letter received on the xx/xx/xxxx indicating that your client is considering enforcement action for a default judgement entered against me on the xx^th September 2015.

At the time, this matter was being handled by a predecessor firm by the name of Bryan Carter Solicitors LLP acting on behalf of Lowell Portfolio.
The court notified me of the default judgement on 30^th September 2015 apparently for failing to file a witness statement in time. Upon receipt of this notice, I wrote to Bryan Carter Solicitors in order to gain an agreement to consent to set-aside the order. This was followed by several emails to BC asking for an answer; all of which have been kept.

Failing to receive any kind of definitive response, I wrote once again, this time stating my intention to file to set-aside the judgement without consent and would seek to claim costs for the application from the claimant.

Shortly after that letter was sent, I received a telephone call from a member of the team at BC, (Katherine I believe), to discuss the matter. Although reticent to speak to anyone regarding this, I was assured that the conversation would be mutually beneficial. During that call, I pointed out that they had failed to respond to all requests for documentation under CPR and that your client, Lowell Portfolio, had failed to reply to CCA requests asking for copies of the agreements, terms and notice of assignment. Indeed, the Witness Statement filed by the solicitors was completely lacking any information that would be necessary to secure a judgement in the county court. I was told it was unnecessary to apply to set-aside the judgement because enforcement action would be stayed by your client, and I would be given the appropriate documentation to satisfy their demands for payment. Upon receipt of this documentation and fulfilment of the CCA requests an agreement to pay would be reached and a set-aside under consent would be made. This documentation has never been forthcoming.

In that time BC, your client and indeed, Lowell Solicitors have failed to take any enforcement action against me despite the judgement having been entered nearly 4 years ago. I believe that the only reason this has been brought back to light is because you and your client are currently attempting to take me to court for another spurious claim and are using this as leverage.

Therefore, it is my contention that regardless of who is now the solicitor acting on behalf of Lowell Portfolio, the agreement made by Bryan Carter still stands and I would expect the documentation that I have been waiting for be provided before you or your client look to begin enforcement.
However, given recent conduct I am presenting two options.

1. Agree to a consent set-aside order requiring your client to disclose all documents under CCA/CPR regulations and should the relevant documentation be forthcoming then an arrangement to pay can be made. Alternatively, if documentation cannot be presented the claim be discontinued. In this case, I am prepared to pay for the cost of the consent set-aside order.
2. I file an application to the court to set-aside the judgement but will seek to recover the costs of the application from your client.

It is important to note that where a claimant knows that he is entitled to request for judgment in default on a technicality but that the defendant has a real prospect of successfully defending the claim, then the claimant should not, as a general rule, request judgment in default. If he does so, then he faces a possible costs sanction as a result.

I require a response to this letter with 7 days, failing which I will proceed with the application alone and seek to recover costs.


Do you think that'll get a response? Wise to send? Help!

[jaguarsuk]

Writing to them is likely to have little effect, if I were them what incentive would I have to set aside the judgement? Currently they're attacking you with this judgement and distracting you from the other proceedings, which might well lead to another if they are successful.

Also, you are alerting them to your intention and basically providing them with the reasons why it shouldn't be set aside.

Your problem is going to come that the court has likely struck out the defence pursuant to CPR 3.4(2)(c) and you have no proof of delivery or postage to prove you complied with the court order to file a Witness Statement. Hand delivering might seem like a good idea at the time, but posting gets you a bit of dated paper with proof you sent it, lesson for this new claim.

You are going to have to convince the court that they should set the judgement aside pursuant to CPR 13.3(1).

13.3

(1) In any other case, the court may set aside^(GL) or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

And even if you can you might fall foul of CPR 13.3(2)

(2) In considering whether to set aside^(GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

Judges can get very shirty about months not being "promptly" and you have known about this for years.

If it were me dealing with my own I'd apply to the court to set aside, but play the game and phone the court to find out about the judgement they have written to you about. Ask how it's happened and whether they'll send you a copy of the order.

In section 10 of the N244 I would tick all three boxes with my original defence and witness statement being those parts, in the box below I would outline my reason for the application as follows:

On XX/XX/20XX summary judgement was enetered on this claim due to late filing of a Witness Statement, however I hand delivered the witness statement to the court in time. The only reason I can see that it did not make it to the court file in time would have beem a delay between the court letter box and in any possible back log of filing.

I am now involved in claim no. XXXXXXXX with the same claimant who have written to me to inform me of the judgement and their intention to enforce it against me, I had assumed after filing my Witness Statement and having not heard anything further my defence was sucessful due to the claimant being unable to comply with my request under the Consumer Credit Act 1974 s.78 for a copy of the credit agreement or a copy of a default notice issued under s.87 compliant with s.88.

Therefore I respectfully request the judgement be set aside pursuant to pursuant to CPR 13.3(1)(a) on the grounds that I have "a real prospect of successfully defending the claim" and CPR 13.3(1)(b) that I filed the enclosed Witness Statement.

I respectfully request costs of the application be paid by the claimant to the defendant.

I'd ask for it to be without a hearing and you should not include a draft order. The order you are seeking is "Set aside judgement XXXXXXXX dated XX/XX/20XX pursuant to CPR 13.3 and costs of this application be paid by the claimant to the defendant."

You're going to have to hope they don't bring up you having known about it previously and with a little luck you might just get away with it.

[jaguarsuk]

Kati can you move this thread to VIP please?

[MasterCoder]

Thanks jaguarsuk for the response.


I'll reply in VIP for now thanks.