Setting aside CCJ/consent order

[Lotti_16]

With the exception to claims allocated to the small claims track (which this is not), the court has discretion to make an order for costs (CPR 44.2 says this). However, CPR 44.2(2)(a) confirms that the general position is that the successful party should be entitled to their costs. There are nth case decisions about how this should be interpreted but one relevant case you can use to back this up is Straker v Tudor Rose (a Firm) and that's a Court of Appeal decision so has binding authority on lower courts (link to case here).

There are two key paragraphs you can refer to support the general position and have highlighted some parts:



If VCS are going to consent, then ideally you should draft the order but there is no harm in agreeing with VCS that they should prepare the draft order and ask them to provide you a word version so you can comment/edit if you don't agree with certain bits but anything that says you agree to pay them should not be accepted or if there is a 'no order as to costs' as this means both sides bear their own costs.

Although Ostell is more familiar with parking ticket situations than I am, personally I would not place too much emphasis on that court order and decision. It's a County Court decision which doesn't have any binding authority on other County Courts and is definitely open to appeal since a decision to strike out the claim as a whole as an abuse of process because parking companies have exaggerated their costs is what we call in the legal realm as draconian. There's plenty of legal authorities that confirm this and should only be used sparingly in cases where sums claimed are so serious that it warrants a strike out of the total claim. The view of the courts is that striking out part of the claim is the preference whilst the rest of claim which is not opposed can continue. The time for arguing a reduction of the sums would be at the hearing itself as part of your oral arguments.

It might be helpful to upload your defence and witness statement (personal info redacted) and we can see what you've put to the court. Normally putting forward a defence would be in draft format to show the judge that there are reasonable grounds to defend the claim and therefore an opportunity to set aside the judgment on discretionary grounds rather than mandatory which sounds like what you are trying to achieve here. If you haven't done so already I would recommend you read my guide on set aside applications to familiarise yourself as to what you should expect and the terminology or criteria to be met in order to set aside (link here)

If you need any feedback on your response to VCS then I suggest you post a draft up here and we can comment.

Please see my draft email response to VCS. Does this sound okay?

To whom it may concern,

As per my last email on 19th May 2021, I have not received any correspondence in relation to this claim or any reduced payment in which you outline In your email (17.5.2021). So I am not sure what address you have as I have not lived at .............. for over 4 years.

In relation to my initial request to obtain a consent order; due to an automated response on your emails stating that you aim to reply within 28 working days, I had no option other than to press forward in completing a N244 form and requesting to set this judgment aside at a cost of £255 to myself.

As stated in my initial email, I did not receive any correspondence in relation to this PCN or that a court claim was made against me. Otherwise I would have dealt with this at the time to avoid a CCJ.

I believe I was not served the court papers correctly. It is reasonable to suggest that given my lack of response to any letters / correspondence, it would not be unreasonable for VCS to think I would no longer be living at ............, particularly as the PCN was issued 3.5 years prior to court proceedings. VCS did not take reasonable steps to ascertain my current address thus I was not able to defend or pay the said fine.

Therefore I believe I should not have to pay any additional costs nor should I have had to pay £255 application fee to request that this be set aside as this default judgment should never have occurred. I am not willing to pay £175 on top of the £255 I have had to pay to the court requesting that this judgment be set aside. This Would mean I would be £430 out of pocket for a £257 judgment/fine.

Therefore I believe I have no option other than to attend a court hearing once a date is confirmed. Furthermore if a set aside judgment is granted I will also be requesting that my application fee of £255 and any associated cost incurred in preparing for this application is paid by VCS.

[ostell]

This is not to VCS, this would be to the court to support your set aside application. VCS are not taking any part of this for the time being.

[R0b]

Ostell that's the response to VCS' email agreeing to set aside subject to paying £175, so it wouldn't be sent to their court. Lotti your email is fine generally, so feel free to send it but see the one below which sort of expands on a couple of things to make it a bit more clearer. Feel free to use all or none of it, up to you (there's some things you need to fill in so don't copy and paste then send on).

I am responding to your email dated XX/XX/XXXX, which I assume was prompted having received my application to the court to set aside a default judgment in favour of VCS.

Your offer to agree to a consent order in return for payment of £175 is not agreed. For a start, I have incurred an application fee of £255 which I am asking the court to order VCS repay if successful, which came about because the only means of contacting VCS is by email and the automated response had given a time of 28 working days - as I'm sure you will know, promptness is one of the criteria when considering a set aside application and this is why I had submitted an application to the court.

Furthermore, I strongly believe that my application will be successful under CPR 13.2 on the basis that VCS failed to comply with CPR 6.9 in that it did not ascertain my last known address. I understand the parking ticket was issued on XX/XX/XXXX (which I did not receive), then legal proceedings were subsequently issued some three and a half years later to the same address resulting in a default judgment. Given the considerable lapse of time, a reasonable person would think that a lack of response to the parking ticket, letter before action and a court claim would indicate that the address may not be my current place of residence. Due to your failure to comply with CPR 6.9, time for filing a defence continued to run since service of the claim form was irregular.

I am willing to agree a consent order but the terms of the order must include reimbursement of the £255 fee I have already paid. I will accept an offset against the £175 you are claiming which would mean a payment by VCS to myself for the sum of £80. Of course you can refuse to accept this offer, but I must warn you that if we cannot come to an agreement, it is my intention to not only seek my application fees but also additional costs such as preparation of my application together with attendance costs.

The offer remains open for the next XX days, after which the offer will expire and I will begin to prepare for my case and evidence the hearing.

[Lotti_16]

Thank you R0B so much for taking your time to help me with this. I have now sent an email to VCS and given them 7days to reply.

hopefully I will hear something soon. I will keep you posted.

[ostell]

Sorry, I thought you were going for the £255 job without reference to VCS

[Lotti_16]

Hello,
Just an update.


i have now received a court date for my hearing. I have attached the letter.

What do I need to send to the court now? As it says about agree to draft directions in advance and about application to the court. Havnt I already done that?

[Lotti_16]

Ostell that's the response to VCS' email agreeing to set aside subject to paying £175, so it wouldn't be sent to their court. Lotti your email is fine generally, so feel free to send it but see the one below which sort of expands on a couple of things to make it a bit more clearer. Feel free to use all or none of it, up to you (there's some things you need to fill in so don't copy and paste then send on).

Hi R0B

I have not received anything back from VCS. However I now have a court date. I attached a pic of the letter in previous post.

Could you please advise what I need to send to the court now as I am a bit confused.

thank you

[R0b]

The Order says that the parties should agree directions if applicable and it's not applicable here so don't worry about that.

You now need to prepare for the hearing, 45 mins seems abnormally long for this but maybe the judge is being cautious with timings in case VCS are objecting to the set aside.

Are you able to upload the application form that you file, or what you had written in Q3? Did you file a witness statement and/or defence at the same time?

[Lotti_16]

The Order says that the parties should agree directions if applicable and it's not applicable here so don't worry about that.

You now need to prepare for the hearing, 45 mins seems abnormally long for this but maybe the judge is being cautious with timings in case VCS are objecting to the set aside.

Are you able to upload the application form that you file, or what you had written in Q3? Did you file a witness statement and/or defence at the same time?

Hi R0B

I attached the full application on a previous post above on 19th May (#10)

I have rang the court as the letter was not clear if I attend or have a telephone hearing. They have confirmed it is a telephone hearing. Yes I did think 45 mins was a long time.

Thanks
charlotte

[Lotti_16]

The Order says that the parties should agree directions if applicable and it's not applicable here so don't worry about that.

You now need to prepare for the hearing, 45 mins seems abnormally long for this but maybe the judge is being cautious with timings in case VCS are objecting to the set aside.

Are you able to upload the application form that you file, or what you had written in Q3? Did you file a witness statement and/or defence at the same time?

Sorry R0B,

Just found the application on my laptop so have attached again

thanks

[R0b]

Have you got a copy of the PCN and all relevant details? If not, now might be a good time to send a subject access request to VCS. You can use those documents to help formulate your arguments.

In the meantime all you can do is prepare your arguments for the hearing. Looks to me that your starting point is to rely on CPR 13.2 and argue that service of the claim form was not validly served and because of that, the time limits for filing a defence never actually ran out.

The second argument is that it should be set aside at courts discretion because, you have a reasonable prospect of defending (depending on whether they complied with the prescribed requirements on the PCN) and I reckon you could also argue that there is an element of prejudice since the incident took place over 3.5 years ago and there has been no plausible explanation as to why VCS have decided to wait so long before bringing a claim i.e the delay in bringing proceedings means an unfair trial.

Theres a court case I think that might help you about the non compliance for ascertaining your latest address I will try to dig it out

[Lotti_16]

Have you got a copy of the PCN and all relevant details? If not, now might be a good time to send a subject access request to VCS. You can use those documents to help formulate your arguments.

In the meantime all you can do is prepare your arguments for the hearing. Looks to me that your starting point is to rely on CPR 13.2 and argue that service of the claim form was not validly served and because of that, the time limits for filing a defence never actually ran out.

The second argument is that it should be set aside at courts discretion because, you have a reasonable prospect of defending (depending on whether they complied with the prescribed requirements on the PCN) and I reckon you could also argue that there is an element of prejudice since the incident took place over 3.5 years ago and there has been no plausible explanation as to why VCS have decided to wait so long before bringing a claim i.e the delay in bringing proceedings means an unfair trial.

Theres a court case I think that might help you about the non compliance for ascertaining your latest address I will try to dig it out

Hi R0B

thank you. No I do not have a copy of the PCN is this something I just ask VCS for? To be fair they have not responded to my previous email so I doubt they will respond to this request but I will ask anyway.


so I don’t need to send anything to the court as such !? I can just verbally defend etc?

thanks

[Lotti_16]

Have you got a copy of the PCN and all relevant details? If not, now might be a good time to send a subject access request to VCS. You can use those documents to help formulate your arguments.

In the meantime all you can do is prepare your arguments for the hearing. Looks to me that your starting point is to rely on CPR 13.2 and argue that service of the claim form was not validly served and because of that, the time limits for filing a defence never actually ran out.

The second argument is that it should be set aside at courts discretion because, you have a reasonable prospect of defending (depending on whether they complied with the prescribed requirements on the PCN) and I reckon you could also argue that there is an element of prejudice since the incident took place over 3.5 years ago and there has been no plausible explanation as to why VCS have decided to wait so long before bringing a claim i.e the delay in bringing proceedings means an unfair trial.

Theres a court case I think that might help you about the non compliance for ascertaining your latest address I will try to dig it out

Hi R0B

I have now received this letter from VCS even though I told them previously that I would not pay the reduced rate of £175 die to all the cost I have now incurred taking this back to court.

so why they think I will pay £257 plus the £250 I have already paid to get this order set aside!

do I need to send them anything back? I have asked for a copy of the original PCN but they have not replied.

do I need to send any further evidence such as emails sent between me and VCS to the court ?

Thank you
charlotte

[R0b]

Don't think you need to respond if you don't want to.

If you did, then you can simply reply short and sweet along the lines that you are not going to accept their offer to consent on the condition of paying the PCN amount and each party to bear their own costs. If they are confident the claim was properly served then the onus is on them to prove that, and in the meantime you will be pressing ahead with the hearing and will look to recover your costs of the application that you've incurred due to their failure to respond promptly, being £255.

If you want to avoid all of this, then you can look at agreeing to pay the PCN amount but of course you lose the opportunity to recover your application costs. Whilst no one can guarantee a win at court, setting aside a default judgment has a relatively low bar unless you are unlucky and get a really awkward judge.

[Lotti_16]

Don't think you need to respond if you don't want to.

If you did, then you can simply reply short and sweet along the lines that you are not going to accept their offer to consent on the condition of paying the PCN amount and each party to bear their own costs. If they are confident the claim was properly served then the onus is on them to prove that, and in the meantime you will be pressing ahead with the hearing and will look to recover your costs of the application that you've incurred due to their failure to respond promptly, being £255.

If you want to avoid all of this, then you can look at agreeing to pay the PCN amount but of course you lose the opportunity to recover your application costs. Whilst no one can guarantee a win at court, setting aside a default judgment has a relatively low bar unless you are unlucky and get a really awkward judge.

Hello R0B,

I have just had my court case over the phone with the county court. The judge has ruled to set aside but not on the grounds of papers not being served correctly but because he believes that I was not aware of any court proceedings and this is therefore now impacting on me remortgaging. However he stated I have 28days to make a written defence.

Do I now have to do a written defence or can I just pay the original fine? As my issue is just having the CCJ removed from my credit file. I really do not have the time and effort to put together a defence and go to trial. If I can just pay the original fine, how do I sort this out as nothing was mentioned about paying it, just about a defence

thank you
charlotte