Taken to court by water company -advice needed

[scs62]

I am hoping someone may be able to give some advice.

at the beginning of this year I received a letter from a bailiff advising me that they were going to apply to the court to get a warrant of execution I think it was and giving me 14 days to pay an outstanding court claim.

This was the first I knew about a court claim but after speaking to them it appears that I had a claim filed against me for a water debt at an address I had moved out of on Aug 2020.

I split from my partner and we both moved out of the property and I was led to believe that the utilities had been taken care of as he dealt with them.

this certainly hadn’t and the account was in joint names and I was taken to court but was unaware as the claim was sent to the old address.

when I spoke to this company, they said that I needed to contact the water company and get them to put a halt on the proceedings which I did.

I explained to the water company the situation and that I was prepared to pay the debt but would have to set up a payment plan as I was out of work. It also turns out that the amount of the claim included bills upto March of this year. I explained that I moved out on Aug 2020 and could prove that and felt it unfair that I was expected to pay another 18 months worth of bill when the property had a completely new tenant.

they said that they would have to recalculate it and would let me know what the correct figure was.

after a couple of weeks I still hadn’t heard anything from them so I rang them again and after being given the run around, they my told me that because it had already gone to court they couldn’t adjust the outstanding amount and they said that I had to apply to the court to get the judgement set aside and then they could give me the correct figure to pay.

sonthat is what I did and a date in January for the hearing has been issued.

I have today received an email from a paralegal working on behalf of the water company confirming the hearing date, saying they have lodged something with the court confirming my address and then saying that they are going to strongly oppose the judgement being set aside! The water company told me to get it set aside so they can adjust it.

I am now at a loss and don’t know what to do. I can’t afford legal representation but feel I am being stitched up.

can I ask for copies of the voice recordings of the conversations with the water co?

[R0b]

Hello

I don't think copies of the voice recordings are going to assist you. You can apply to set aside the judgment but there is no guarantee that the judgment will be set aside, that is down to the court and not the water company.

If the water company has filed something with the court then they should be providing you with a copy of what they have filed and I would suggest you respond to the paralegal to request a copy of what they have filed in opposition of the application to set aside the judgment. They shouldn't refuse as they are required under the civil procedure rules to provide a copy but you can contact the court to ask them to send a copy out to you - do this sooner than later otherwise you have no excuse to say you didn't have any time.

Once you have a copy of what was filed, only then can you understand why they are opposing it. Suggest you do that first then come back to us once you have time to read through it

[scs62]

Hi,

So I have checked the email again and the thing they have filed with the court is a form N434 Notice of change of solicitor. They have sent me a copy of this form.

The reason they have given for opposing the set aside is "I have reviewed your application and as ******* Water were not made aware that you had moved out of the Property before the claim was issued, the claim ******* Water issued on November 2021 was served correctly in accordance with CPR 6.9 to the last known or usual address.

I confirm that ********** Water intends to oppose your application to have the Judgment obtained against you set aside."

The thing is, I have only requested the judgement to be set aside because the water company advised me to so they could adjust the outstanding balance and take off the bills from Aug 20 to Mar 22. I wasnt doing it because I never actually received any correspondence or court claim.

Should I speak to the solicitors and explain this?

[R0b]

You can explain your position to them but I don't think it will change their mind, and you will likely have to argue it out in court. What exactly did you put on the application? I really hope you didn't just say "the water company told me to set it aside".

An order setting aside a default judgment can only be made under certain circumstances, either because the judgment should not have been made in the first place or there is some other good reason as to why it should be set aside.

The argument of not receiving correspondence from the water company, on its own, is not normally a good enough reason to set aside the default judgment. You allowed someone else to act on your behalf and notify the water co. instead of doing it yourself so the fact you received a judgment might seem unfair, but that's the consequences of your choice of action however harsh it may be.

There may be some arguments you can make in order to persuade the judge to get the default judgment set aside but none of them are a slam dunk and you may have to pray you get a sympathetic judge on your side.

I'm not familiar with the legislation around water rates but the biggest issue you have, is that under the section 144 of the Water Industry Act 1991, it grants the right for water companies to charge the occupier(s) water and sewage rates unless you notify the water company at least 2 working days in advance that you are no longer occupying the premises, otherwise you are liable to pay the charges until such time they become aware otherwise. I suspect the water company will point to this as their primary argument as to why judgment shouldn't be set aside.

As for their response about sending to the correct address, that depends because CPR 6.9 says that if they have a reasonable suspicion that the address is not your place of residence then they have to take reasonable steps to ascertain your address. My immediate thoughts are that the charges are for a period relate to an 18 month period, they must have surely sent numerous demand letters for payment during that period and if the letters went unanswered then that ought to have raised a reasonable suspicion that you no longer reside there, especially if the rates were paid on time immediately before then. You may want to make a subject access request ASAP to find out what information the water co holds about you include any correspondence they have sent to that address, account summary and any notes on the account. That might shed some light but you should have don that before submitting the application as your evidence needs to go at the same time as the application, not afterwards.

The other point to make is if the property is rented, it's possible the water company was made aware of a change of occupancy if new tenants had moved in. It's common for landlords or their agents to notify the utility companies of the new tenants because they don't want to be held jointly liable for the rates. If the property was rented, maybe call the landlord or the agent acting on their behalf and confirm whether they notified the water company of new tenants and if so when were they notified - get them to confirm in an email and you could try to use that as evidence to argue that they were put on notice you were no longer living there prior to the claim being issued.

If any of the above arguments hold, the effect is that service of the claim form is deemed invalid and the court must set aside the default judgment irrespective of whether or not you have a valid defence.

This is just a very brief explanation on how you may want to argue your case based on the limited information given.

[scs62]

UPDATE*******

I am so sorry but due to a plethora of situations beyond my control, I never saw the above post and so have been dealing with the situation completely blind and may have shot myself in the foot but nothing I can do now, just dont know what to do for the best.

So I did get a SAR from the water co which states in the notes that they told me to get the judgement set aside as they were unable to adjust. Apart from that, its all letters sent to an old address.

The court hearing was listed for January just gone but due to my father dying at christmas, the paralegal working for the water co kindly managed to get the hearing adjourned until this month (April).

They offered me a consent order but being unemployed at the moment I was worried to enter into it as the chances are I wouldnt be able to make all the payment each month and therefore would be in deep trouble. They said i could do it up to 12 months.

so consequently they then said basically its your choice but chances are you may end up paying all the court fees if the hearing goes ahead and they were still adamant that they were right and I was wrong.

I got my statement together and sent it off to the court with a copy to themselves ( I have no idea if its correct, I have no knowledge of court procedure) and then the day before the hearing I got a message from the court saying that the hearing had been adjourned due to lack of judicial time.

The hearing has now been rescheduled for early May but they have changed the court from a relatively local one to one that is an hours drive away which is majorly inconvenient as due to ongoing mental health issues I cannot bring myself to drive anymore and I cannot afford public transport.

should I just try and renegotiate with the water company?