Set aside default CCJ - incorrect address and likely statute barred

[name]

Received a claim? Yes
Issue Date: 25 April 2024
Have you Acknowledged the Claim?: No. Became aware of claim 21/6/24 through a letter from claimant asking for payment. Confirmed claim genuine with court 24/7/24
Total Amount Claimed : £2XXX
Claimant’s Name: CCI credit management
Solicitors Firm: Francis Wilks and Jones
Original Creditor: Previous employer
Original Debt : Alleged salary overpayment from 2017
Particulars of Claim:
The Claimant claims the sum of £1XXX from a salary overpayment of which £1XXX were repayed through salary deduction upon termination in 2020. They allege this happened due to a duplicate check issued when starting employment, but my bank records don't go that far to verify this. The claim was served at an address where I never resided and I've confirmed on my credit report I have no link to that address.
My draft defence -
1/ Improper service. I never resided at the address where the claim was sent to. No reasonable steps were taken by the claimant to find my current address. Only after winning the CCJ by default did the claimant run a search on my credit file on 22 of May 2024, finding my current address. They then waited 1 month to contact me about the claim at that address.

2/ The alleged salary overpayment from 2017 was statute barred when the claim was issued

3/ The estoppel principle applies and the injustice of requiring repayment outweighs the injustice of denying the claimant restitution. The alleged overpayment occurred due to no fault of my own. I received communication from my employer in following month 2017 that there had been an overpayment on my first month of employment and that they corrected this and so was led to believe that any money remaning was rightfully mine. I changed my position significantly as a result of the overpayment by purchasing a motor vehicle and changing my work site in december 2017, which resulted in a longer commute. This motor vehicle has since been stolen without insurance compensation, so asking me to repay would leave me in a worse off position.

Is the debt Statute Barred (have you had any contact with the creditor or claimant over the last 6 years?): Yes/unsure
List any letters you have sent (eg: CCA/ CPR ): Sent email 2/7/24 requesting a consent order to set aside the CCJ and to provide all comunications related to the debt and evidence I owe that debt, Gave deadline to reply 16 July 2024. CCI replied the details of my email were sent to the solicitors and client for comment.
Any Other Information or Background Details: Neurological disability

The main legal question is whether salary deductions made without my knowledge or agreement reset the limitation period for the debt. Other questions are if I waited too long to set aside the judgement and how best to prove I never lived at the address where the claim was served.
I first found about the salary deductions when I requested a copy of my last payslip this month. I also noticed I wasn't compensated for untaken holiday, with owed amount higher than the overpayment claim.
I've also asked for evidence that a duplicate check was issued and cashed.

[echat11]

Hi Name

Welcome to LB

If you can get consent from the Creditor, the costs for setting aside the CCJ will be lower, just over £100.

So the first thing to do is write to the Creditor seeking consent, they should give consent as it was sent to the wrong address.

Can you add dates, when the overpayment started / finished?

When you were aware of the overpayment?

https://legalbeagles.info/library/ho...-judgment-ccj/

You should be able to get all bank statements for the last 6 years, sometimes longer if they've been kept.

Send your bank a SAR request -

https://legalbeagles.info/library/gu...ccess-request/

[name]

Hi Name

Welcome to LB

If you can get consent from the Creditor, the costs for setting aside the CCJ will be lower, just over £100.

So the first thing to do is write to the Creditor seeking consent - Already done about a week ago
Can you add dates, when the overpayment started / finished? - Single month overpayment august 2017

When you were aware of the overpayment? - Informed there had been an overpayment in September and that this was corrected in the next pay date

You should be able to get all bank statements for the last 6 years, sometimes longer if they've been kept. 6 years yes, but my bank doesn't have anything older than that, so 2017 falls outside

Send your bank a SAR request - Likely won't be available before deadline for set aside - My understanding is that it is 30 days from when I became aware of CCJ

https://legalbeagles.info/library/gu...ccess-request/

Already wrote to the Creditor asking consent a week ago, they sent to solicitors for comment. I followed that up with another email yesterday along the lines:
"Dear Sir/Madam,

I refer you to my previous email on the XX of July, requesting urgent agreement to a consent order for set aside application.

I've received a reply that you've passed on my details to solicitors Francis Wilks and Jones for comment. It is up to the claimant to instruct their solicitors and if they are instructed to deal with the set aside application then the solicitors should contact me directly and as a matter of urgency by email no later than 16 July 2024. I reiterate that failure to respond within the required timescale will mean that an application will be submitted without further notice and I will seek costs of the application plus reasonable time spent preparing it, at an hourly rate of £19 per hour.

My draft defence:

1. Non-receipt of the claim form due to incorrect service;
2. I have no record of a duplicate check being cashed;
3. The alleged overpayment from August 2017 would be a statute barred debt;
4. 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.

Your prompt assistance in agreeing to my request to set aside the CCJ would be greatly appreciated.

Thank you for your cooperation.

Yours sincerely,
XXXX"

Main legal question is, do salary deductions made without knowledge or agreement of employee reset the 6 years statute barred timeline? Any previous case law from the right of set-off?

[echat11]

The following might or might not help (posted for information only) -

https://www.cipp.org.uk/resources/ne...paid-wage.html

atticus Might be able to help.

[name]

The following might or might not help (posted for information only) -

https://www.cipp.org.uk/resources/ne...paid-wage.html

atticus Might be able to help.

I believe that only applies to employees trying to claim from their employer, not the other way around

I received today a draft consent order from the claimant, should I sign it? Or should I ask it to be amended and state that it was not served at last known address? I have evidence of my address at termination, and I haven't updated my address with them since.

"[Draft] CONSENT ORDER

UPON the Defendant emailing the Claimant’s representatives disputing service of the
Court Proceedings
AND UPON the claim having been served on the Defendant at the last address known
to the Claimant pursuant to CPR 6.6(2) and CPR 6.6(3), but the Defendant confirming
that he was no longer residing at that address
AND UPON the Claimant being satisfied that the Defendant has demonstrated good
reason as to why Judgment ought to be set aside in accordance with CPR 13.3(1)(b)
AND BY CONSENT
IT IS ORDERED THAT:
1. The County Court Judgment dated 16 May 2024 be set aside;
2. The Defendant is to file and serve full particulars of Defence by no later than 4pm on
[14 days];
3. The Claimant be permitted to file and serve a Reply to Defence, where so advised,
by no later than 4pm on [42 days];
4. The Parties do file and serve their N180 Directions Questionnaire by no later than
4pm on [42 days]
5. Costs in the case"

they also emailed:
"It is confirmed that proceedings were issued against you on 25 April 2024 at the last known address held for you by our client. It is maintained therefore that service of the claim form was in accordance with the Civil Procedure Rules.

With regards the subject of the instant proceedings it is confirmed that such is as a result of a duplicate payment of salary made to you in 2017. Our client confirms that they made payment to you of your salary for August 2017 by way of cheque payment. It is understood that our client issued two cheque payments in respect of the salary for August 2017 in error, once being cased by you on October 2017 and the other on December 2017. We attach a copy of our client’s correspondence to you of January 2018 confirming the same. On the basis that you received total payment of £4XXX in respect of salary payments for August 2017, when you were only entitled to payment of £2XXX, you have been unjustly enriched at our client’s expense.

You will be aware that our client deductions from your salary payments as below:

XX/08/2020 £7XX
XX/09/2020 £5XX

leaving a sum of £1XXX outstanding for payment.

We trust that the above provides the breakdown information that you request.

Notwithstanding that our client is confident in their claim against you, however is mindful of the costs involved with an Application for Setting Aside Judgment. Accordingly, we are instructed to consent to the Judgment being set aside to enable you the opportunity to respond to our client’s claim and we attach a Drafted Consent Order for your consideration. It is requested that you arrange for the same to be signed and returned to us as so that the same may be filed with the Court accordingly.
"

[name]

I found some information regarding the right of set off from an old post:
https://legalbeagles.info/forums/for...780#post851780

Does anyone know where this is from? I would like to read footnote 12.

[echat11]

I found some information regarding the right of set off from an old post:
https://legalbeagles.info/forums/for...780#post851780

Does anyone know where this is from? I would like to read footnote 12.

I think it's probably from a law book.

[name]

I found some information regarding the right of set off from an old post:
https://legalbeagles.info/forums/for...780#post851780

Does anyone know where this is from? I would like to read footnote 12.

I found footnote 12 refers to Stewart v Cornick (1871) IR 5 CL 562

Meanwhile I responded by email that I found the terms of the consent order unacceptable, and provided an amendment for their consideration:

[Draft] CONSENT ORDER




UPON the Defendant emailing the Claimant’s representatives disputing service of the Court Proceedings

AND UPON the claim having not been served on the Defendant at the last known address held by the Claimant pursuant to CPR 6.6(2) and CPR 6.6(3), as the Defendant has provided evidence of a different last known address

AND UPON the Claimant being satisfied that the Defendant has demonstrated good reason as to why Judgment ought to be set aside in accordance with CPR 13.3(1)(b)

AND UPON reading the evidence recorded in the Court file as having been read.

AND BY CONSENT

IT IS ORDERED THAT:
The County Court Judgment dated 17 May 2024 be set aside;
The Claimant shall reissue the claim form to the Defendant's correct address,
The Defendant is to file and serve full particulars of Defence within 14 days of receiving the reissued claim form;
The Claimant be permitted to file and serve a Reply to Defence, where so advised, within 28 days of receiving the Defence;
The Parties do file and serve their N180 Directions Questionnaire by no later than 4pm on [42 days]
Costs of the set aside application be borne by the Claimant.

SIGNED:

Could someone please revise if my terms are unreasoneable and if they can send the consent order signed by email?

[name]

I sent off my n244 and witness statement today to the CNBC email. Does anyone know if I can pay the fee online, or if I have to phone them again?

[echat11]

I sent off my n244 and witness statement today to the CNBC email. Does anyone know if I can pay the fee online, or if I have to phone them again?

Consent order seems fine. You have to phone them to pay the fee.

[name]

Consent order seems fine. You have to phone them to pay the fee.

I made a mistake on my consent order and N244 application. I should have referenced CPR 13.2 as well for a mandatory set aside:
The judgement was wrongly entered due to invalid service of the claim. The defendant challenges the jurisdiction of the court and the court should not exercise any discretion which it may have.

Any idea how I can amend the N244 application after sending it?
Should I be concerned that I sent the application to set aside by consent without a consent order, and now the claimant's solicitors are not replying to my requests to amend the consent order? I did attach the email where the claimant's solicitors agreed to the set aside as evidence and only paid the lower fee of 119£

I've attached to my message my N244 aplication and witness statement

[echat11]

I made a mistake on my consent order and N244 application. I should have referenced CPR 13.2 as well for a mandatory set aside:
The judgement was wrongly entered due to invalid service of the claim. The defendant challenges the jurisdiction of the court and the court should not exercise any discretion which it may have.

Any idea how I can amend the N244 application after sending it?
Should I be concerned that I sent the application to set aside by consent without a consent order, and now the claimant's solicitors are not replying to my requests to amend the consent order? I did attach the email where the claimant's solicitors agreed to the set aside as evidence and only paid the lower fee of 119£

I've attached to my message my N244 aplication and witness statement

Ring the Court, depending on when it was sent and received by the Court, they may not of done anything with it. See where they are with it.

Send an email requesting their (solicitors) 'complaints procedure'. Might get them to communicate with you.

[name]

Ring the Court, depending on when it was sent and received by the Court, they may not of done anything with it. See where they are with it.

Send an email requesting their (solicitors) 'complaints procedure'. Might get them to communicate with you.

Will do.
Will the court contact both me and the claimant to demand the consent order, once it processes my application (usually 4 weeks)?

I've read somewhere on the forum that it's fine to submit the application for set aside with consent using email evidence only and without a consent order. But what happens if the claimant then refuses to sign a consent order?

[echat11]

a) Will the court contact both me and the claimant to demand the consent order, once it processes my application (usually 4 weeks)?

The Court expects the parties to provide the correct documentation, you need to be pro active trying to correct things.

b) I've read somewhere on the forum that it's fine to submit the application for set aside with consent using email evidence only and without a consent order. But what happens if the claimant then refuses to sign a consent order?

It's a bit daft, considering they've given consent via email. The whole point is that the parties resolve the matter 'co-cooperatively'.

https://www.justice.gov.uk/courts/pr...l/rules/part40

[name]

https://www.justice.gov.uk/courts/pr...l/rules/part40

So the order will always be reviewed by a judge, because I'm a litigant in person. I'm thinking the claimant will probably consent to set aside under discretionary grounds, but not mandatory grounds because they insisted it was served at the last known address, despite evidence to the contrary. But I'm hoping the judge may read the witness statement and decide it's a mandatory set aside and the claim form needs to be served again. I can then challenge the courts jurisdiction when I acknowledge service.

Should I give them 2 weeks to reach agreement in a consent order, and then I'll apply to set aside the judgement without consent under CPR 13.2 mandatory grounds and challenge service?
Will a judge see it as unreasonable that I insist the claimant agrees service wasn't validly effected on the consent order before I sign it?
Will the costs of the frustrated consent application and application without consent be borne by the claimant if I'm successful?
Can I convert one application into the other and just pay the fee difference?