Small claims filed by neighbour to incorrect address

[bawpie]

Yesterday I discovered a CCJ on my credit file, dated 10/11/2020. The address on the CCJ is for a property I own but have not lived in for 4 years and I currently rent it out via a letting agency. Because the address is incorrect, the CCJ shows as a default as I never received any court papers in relation to it and so couldn't contest it. I've contacted the county court money claims centre and they've told me I have to e-mail them for the particulars, but they were able to give me the name of the claimant which I recognise as the neighbour to the property. I have sent an e-mail as instructed but was told it could take a while to be replied to.

Based on the amount of the claim and the name of the claim I'm assuming the claim is in relation to some repairs that the neighbour had done in October of last year. They asked me to pay for it as claimed it was due to a leak from my property, however, this neighbour has previously asked me to pay for other repairs in their property such as cracks in ceilings etc which where present prior to me purchasing my property. I had been told previously by this neighbour that the former owner of my property had damaged their kitchen ceiling via a water leak so I did feel they were just trying to pull a fast one. I replied in writing at the time stating I would pay towards their excess as a gesture of good will, but they said they didn't want to go via insurance as they'd lose their no claims bonus. I replied, again in writing, stating that as they didn't go through the insurance I wouldn't pay for the repairs as there was no proof that the repairs were due to negligence on my part and I also hadn't agreed to pay for them. I should add we did have a workmen check for leaks etc in our property but they could find none, but we did get the bath resealed just in case this was the issue (again no evidence it was).

All of the above was done through written correspondence from my neighbour to my letting agent, as the neighbour does not have my address - however the last letter I sent them had my correspondence address included (which they had been writing to anyway).

As I received no legal papers for the claim, I would like to get it set aside and also defend it. The guidance on this site is very clear, but step two in the guidance suggests I ask the claimant to provide consent to have the judgement set aside. As I plan to defend it (never agreed to pay for repairs and there is no proof I was responsible for any damage that led to the work being done), do I still need to follow this step? I feel like they wouldn't consent anyway? Also, given the claimant is aware of my correspondence address and knows that I don't live at the address, I feel like this has been done almost spitefully so that I couldn't defend it. I am really worried about the impact on my credit file for taking out insurance/mortgages etc. Any advice would be appreciated around this matter.

Thanks in advance

[pt2537]

Hi there

Cases like this are never straight forward. You need to consider whether the Claim was served in accordance with the CPR, CPR 6.9 is clear on where to serve when the Defendant does not give an address for service.

I always offer the option to consent to the judgment being set aside, if you dont you miss a trick on costs, so its worth doing, if they say yes then you should in theory save the money of a contested hearing, if they refuse then you can show their conduct is poor, its win win, assuming you do indeed win the application.

If you intend to defend the claim then you should also look at lodging a draft defence too, as the Court will want to see that you are not simply prolonging the inevitable if they set aside judgment, the Court will want to see that there is a viable defence too.

[bawpie]

Thank you. For the consent, do I need to ask them to fill anything in or do I simply ask them for consent to set aside? i.e.

Dear CLAIMANT,

It has come to my attention on xxx that a CCJ raised by yourself has been served to ADDRESS. This only came to my attention when checking my credit file, not because I received appropriate notification. I do not believe this claim was served in accordance with the CPR (see CPR 6.9 point 3 - provided below for reference) and therefore I will write to the court to ask this judgement is set aside in order to give me the opportunity to defend myself - please can you confirm that you will consent to this action within 7 working days. I encourage you to do this via e-mail (xxx.com) so that I can make the application promptly. If you cannot reply via e-mail, then please reply to [LETTING AGENT ADDRESS].

If you do not respond to my request within 7 working days from when this letter is sent (xx/11/2020) please be aware that I will make an application to the court to set aside the judgement without it (xx/xx/xxxx). Note that the fee for setting aside the claim will cost less with consent than without it, but please also be aware I plan to dispute the claim as well - and will seek for any associated costs to be paid by yourself.

I know you are aware that I have not resided at the stated address since xxxx, this is evidenced by the correspondence you have previously sent to me via the letting agent that currently manages the property (of which I have e-mail proof), and I provided my correspondence address on the letter dated xxxx that informed you I would not pay the costs that you have demanded. You also live beneath the said property, and are aware that there are tenants living at the address. In providing an incorrect address in your claim, you have denied me the opportunity to defend myself, and the resulting default judgement has adversely affected my credit rating.

For your information CPR 6.9 states:
Service of the claim form where the defendant does not give an address at which the defendant may be served


6.9


(1) This rule applies where –


(a) rule 6.5(1) (personal service);


(b) rule 6.7 (service of claim form on solicitor or European Lawyer); and


(c) rule 6.8 (defendant gives address at which the defendant may be served),
do not apply and the claimant does not wish to effect personal service under rule 6.5(2).


(2) Subject to paragraphs (3) to (6), the claim form must be served on the defendant at the place shown in the following table.


(For service out of the jurisdiction see rules 6.40 to 6.47.)

1. Individual	Usual or last known residence.
2. Individual being sued in the name of a business	Usual or last known residence of the individual; or principal or last known place of business.
3. Individual being sued in the business name of a partnership	Usual or last known residence of the individual; or principal or last known place of business of the partnership.
4. Limited liability partnership	Principal office of the partnership; or any place of business of the partnership within the jurisdiction which has a real connection with the claim.
5. Corporation (other than a company) incorporated in England and Wales	Principal office of the corporation; or any place within the jurisdiction where the corporation carries on its activities and which has a real connection with the claim.
6. Company registered in England and Wales	Principal office of the company; or any place of business of the company within the jurisdiction which has a real connection with the claim.
7. Any other company or corporation	Any place within the jurisdiction where the corporation carries on its activities; or any place of business of the company within the jurisdiction.

(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

(4) Where, having taken the reasonable steps required by paragraph (3), the claimant –


(a) ascertains the defendant’s current address, the claim form must be served at that address; or


(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is –


(i) an alternative place where; or


(ii) an alternative method by which,


service may be effected.


(5) If, under paragraph (4)(b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15.


(6) Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant –


(a) cannot ascertain the defendant’s current residence or place of business; and


(b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b).


Is something like the above suitable? Is there a form that I need to fill in with regards to consent?

I tried to look at the example letter which is supposed to be at this link: https://legalbeagles.info/library/ho...#letterconsent but it doesn't appear to be there?

Thanks

[pt2537]

Dear Sirs

Re (case details)

We note judgment was entered in the above matter on or around .....................................

Proceedings were issued and served on ......................................... which is not my address for service. I refer you to Civil Procedure Rule 6.9 which confirms that where the Defendant does not give an address for service, the correct address would be the Defendants last known residence. You were aware that this address was not my usual or last known residence.

Accordingly, service of proceedings was defective and not in accordance with the rules. Accordingly, the conditions in CPR 12 were not met when Judgment was entered, and therefore the Court must, upon my application, set aside Judgment per CPR 13.2

I am aware that such an application will incur legal costs on both sides, i therefore take this opportunity to offer you the option of consenting to the judgment being set aside so as to avoid the costs of attending Court at a hearing. If you refuse to consent then i shall apply and shall ask the Court to order you to pay my legal costs, which could easily exceed £1500.

Should you be in any doubt about the legal position in this matter then i would invite you to take legal advice.

Please confirm by 4pm on ............................... whether you are agreeable to the judgment being set aside. If you are agreeable i shall forward a draft consent order for your consideration

If i do not hear from you by the above deadline i shall apply to the Court without further notice and shall refer the Court to the contents of this letter on the question of costs and conduct


Yours faithfully



How about that?

[bawpie]

Thank you - that is enormously helpful. Is it worthwhile sending a copy of the draft consent order along with the initial letter to save time (this individual has communicated by letter in the past rather than e-mail) and I don't want to delay any longer than necessary.

In terms of a consent order - should it look like this:

IN THE XXXXXXXXXXXXXXXXX COUNTY COURT

Claim No. XXXXXXXX

BETWEEN:

CLAIMANT’S NAME

Claimant

– and –

Defendant

YOUR NAME

_________________________________

DRAFT ORDER
_________________________________



Upon reading the defendant’s application dated ……………….

It is ordered that:

1. The judgment dated [insert date of judgment] be set aside.

2. The Defendant shall file and serve its Defence by 4pm on [insert date].

3. The Claimant do pay the Defendant’s costs of this application to the sum of £255

4. The Claimant has permission to file and serve a reply if so required.


I'm not sure re the costs - would this not be £110 if consent was provided? Also, not sure entirely which date to put in point 2?

[pt2537]

Thank you - that is enormously helpful. Is it worthwhile sending a copy of the draft consent order along with the initial letter to save time (this individual has communicated by letter in the past rather than e-mail) and I don't want to delay any longer than necessary.

In terms of a consent order - should it look like this:

IN THE XXXXXXXXXXXXXXXXX COUNTY COURT

Claim No. XXXXXXXX

BETWEEN:

CLAIMANT’S NAME

Claimant

– and –

Defendant

YOUR NAME

_________________________________

CONSENT ORDER
_________________________________



Upon reading the defendant’s application dated ……………….

AND UPON THE COURT NOTING THE PARTIES AGREE.

BY CONSENT

It is ordered that:

1. The judgment dated [insert date of judgment] be set aside.

2. The Defendant shall file and serve its Defence by 4pm on [insert date].

3. Costs in the case

4. Upon compliance with paragraph 2 t he file shall be referred to a District Judge for further directions


I'm not sure re the costs - would this not be £110 if consent was provided? Also, not sure entirely which date to put in point 2?

Its about right but i have made a couple of tweeks above

Re costs id remove that paragraph and leave it costs in the case but thats just me, if you want to get them to bite and consent then youve gotta give them a reason to, afterall if they go to a hearing and your application fails they will be able to get their costs etc.

At least offering costs in the case means that who ever wins at the end can ask the Court to look at ordering the loser to pay

[bawpie]

Thank you, yes that makes sense. I don't yet have the particulars of the claim, so should I include something in the order to request these (I have requested them from the court but have yet to receive them).