** SUCCESS ** CCJ Set Aside Help Please!

[R0b]

Whoever sends the consent order makes the application.

On reading the application dated ....... and noting that it is agreed between parties that the debt claimed is due and payable: but on further noting that the Claim form, though correctly served as a matter of law, did not come to the Defendants Attention:

Those are the circumstances described. If you aren't comfortable with that then you could use the wording from the example I've given:

UPON the application of the Defendant to set aside a default judgment dated <insert date>

AND UPON the parties having agreed terms of settlement.

It isn;t absolutely necessary to give any background to the claim or reasons for the consent order.

[newbie007]

Ok i will send the consent form. I will ask them to sign and send it back to me if you feel its better that way. Strange why the wanted to go out their way to send it. They have not mentioned the N44 form as of yet.

Are those circumstances described not worded good, do you believe?

Should i change it to what you have mentioned so it would look like this:

Upon the application of the Defendant to set aside judgement dated.... ....... and noting that it is agreed between parties that the debt claimed is due and upon the parties have agreed terms of settlement but on further noting that the Claim form, though correctly served as a matter of law, did not come to the Defendants Attention:


Is that better? To be honest i was not sure of the wording or the legality and you know best and more then me so i will take your advice, whatever it is.
Is this crucial or doesnt make a big difference, (incase they do not accept the changes)

I want to make sure every bit of information is correct before sending it as i only get one chance

[R0b]

There's nothing wrong with the wording they've provided, there is also nothing wrong with what I've provided. Everything has more than one way of being drafted and all they are saying is what I have repeated on your thread.

If you are unsure, I suggest you pay for some legal advice to advise you on the next steps.

[newbie007]

Sorry for the repeated questions and i really go appreciate all the advice and help you have given me.

Does it make a difference who sends the form, whether its me or the company. Will the judge look more favourably on the case if the company sends it rather then me or am i just clutching at straws.

[R0b]

Doesn't matter who sends, it still ends up on someone's desk.

[newbie007]

Many thanks for all your help ROB. I am now awaiting the courts decision after following your advice on here. One quick question regards to the CLaim Form (not the consent order).

The solicitors did the actual claim form themselves so filled in everything. One section they wrote on was the following:

10. What information will you be relying on, in support of your application?

- Attach witness statement
- Statement of case
- Evidence set out in the box

The ticked the 'evidence set out in the box' and follow it up by writing:

The claim was issued on XX and judgement entered on XX in default of any response

on XX the defendant made the claimant aware of medical and other personal circumstances as a result of which the Claim Form, through properly served did not come to his attention. The Defendant stated that he would have addressed the material, debt prior to any Judgement had be been aware of the Claim, and substantiates this assertion by now offering full payment in the terms of a draft Consent ORder attached to this application

Accordingly the Claimant submits that Judgement may and should be set aside under the discretionary ground at CPR 13.1(1)b and the claim should thereafter be stayed on the terms therin



Is what they have written correct? Does this sound ok to you?

Many Thanks

[newbie007]

anyone help please?

[newbie007]

anyone?

[R0b]

Hi,

Sorry I missed this but to answer your question, there is nothing wrong with what they've written because strictly speaking what they've said is true and you shouldn't write anything that could mislead the court.

Whether that gets it over the line is another question. Personally I would have simply stated in the application that the parties have agreed to set aside the default judgment in the form of a consent order attached.

Another reason why defendants should not rely on claimant solicitors to make the application but each to their own.

[newbie007]

Thanks for the reply. I am a bit concerned now. I dont know why they wrote that on the N44 form, but they sent it now so i cant do anything. We already did the constent form aswell attached the N44.

So do you think my claim will be rejected the court now? What are the chances, does what they have written hinder my chances

[R0b]

As I've said in an earlier post, many judges give effect to the parties agreement but they ultimately hold discretion as to whether or not the decision to set aside should be granted.

Nothing you can do now that it's submitted and I really couldn't tell you whether or not it will be rejected, it's a case of wait and see.

[newbie007]

Hi Rob,

I appreciate that and understand that but just based on future reference to give me the best chance possible you think the stuff the claimant wrote on the evidence box should not have been written and left blank just notifying the court that a consent form was signed.

I am scared now. It makes no sense why the solicitors would hinder an application for this as they want this to go through so they can get their money back

[R0b]

Well what they've said is true, isn't it?

If it is true you can't blame them suggesting they are hinding an application, because the simple answer would have been for you to make the application instead. As you chose not to, and relied on them making the application, that can't be anyone else's but your own fault.

I'm not saying it shouldn't have been written in that way, but sometimes there are more than one way of putting it.

[newbie007]

Thanks for your reply. I did ask earlier on on this thread during the process if it was better for me to send the form and write it but you replied saying it doesnt matter who sends it so i left it to them. I wish i had known this now, i would have opted to send it myself.

In the future do you suggest i leave it blank and just a consent form has been signed

[R0b]

I think my response about who sends the form was more about whether you posted it or they did, not the contents of the application form itself - just looking back at the post you didn't say anything about writing the form, you simply asked who should send it, hence my reply.

For future reference, however, you should not generally rely on the other side to make an application on your behalf since you lose the control of what you want to include/exclude in the application form. These claimants might insist that they make the application on your behalf but I think that is unreasonable, in which case you either allow them to make it or you submit your own at a cost of £255 and then try to agree a consent order with costs payable for their unreasonable conduct (though you may wish to notify them of your intentions before submitting an application).