Set aside case dismissed. Can i succesfuly appeal?

[seed]

Hi everyone i am new here, but desperately need your kind advice with a problem i have. The facts of the case is that in 2012 a ccj was entered in my default by Aktiv capital, for a loan i took out in 2001 and had defaulted in 2004, so a case was brought to court in 2012 and because i was out of the country at the time of the case, and was even unaware of the case, i couldnt attend and couldnt make any representation. When i came back to live in the address in 2013, i still did not know of any case againt me untill feb 2014, when i checked my credit file and saw that there was a ccj, and later found out from the court that it was from Aktiv capital. So about 21 days later and after reading reviews and comments from this site and others, i filed an application to the court for a set aside. And the hearing was set for June. In my application i said, i just knew of the ccj, because i was away from the country at the time, and presented evidence. And second that the claim itself is statute barred and should not have been heard in the court, and if the case is set aside i will successfully defend this in the court.

The representative from Aktiv capital sent me their witness statement and in it they include evidence of the cca for the loan, and evidence of service to my last known address, but then said i made a payment of £2 in Nov 2008, but could not provide an evidence to prove that i did, but only the statement that i did make a payment.

At the set aside hearing, the judge said i havent acted promptly by making application to set aside the case, and i pointed out to the court that it was only 21 days after i knew that i make the application, but he still refuse. And he also said that i do not have any prospect of successfully defending the case because the claimant make a statement that i paid £2 in Nov 2008 and that has defeated any SB claim, even though i pointed out to him that there was no proof of this payment but only their signed statement, which anybody can make, but the judge refuse said that the witness statement is enough proof of an evidence of payment. Which i still dont understand how???

My question is that, can i appeal this, and what is my chance of successfully appealling this case. I wasnt around at the time the case was brought to the court in 2012, and as soon as i became aware in feb 2014 i apply for a set aside, but is 21 days too long to do so? And why is my claim for statute barred not properly disproved by Aktiv capital, as they do not have any proof or evidence that i make the payment and did not present any proof to the court that i did, but only relied on the witness statement they made, which the judge bite on. Please can you folks tell me if this is right and what should i do, should i appeal or should i just leave it and succumb to these tyrannies. Thanks

[stevemLS]

Re: Set aside case dismissed. Can i succesfuly appeal?

Google CPR Part 52 and Practice Direction 52B which will tell you how to appeal.

Not sure what your grounds would be?

You normally have only 21 days from the date of the hearing to lodge your appeal.

A statement supported by a statement of truth is "evidence", which is why the judge accepted the fact of the £2 payment.

[seed]

Re: Set aside case dismissed. Can i succesfuly appeal?

Thanks for that stevemLS, i never know that a person can give such statement as an evidence. How ridiculous though, its like making a statement that you owe me when you obviously didnt. Anyway i am seeking some legal opinion as advised by NCF, so lets see what they will come up with.

Thanks.

[stevemLS]

Re: Set aside case dismissed. Can i succesfuly appeal?

seed - I think you would ordinarily expect a statement in these circumstances to exhibit (ie attach) a statement of account showing the payment in question as well as other transactions on the account.

If, however, they simply submit a statement and you believe elements of it to be incorrect, there is nothing to prevent you from saying in your statement that you made no such payment in November 2008. It would then be a matter for the judge to decide whose evidence they prefer.

[seed]

Re: Set aside case dismissed. Can i succesfuly appeal?

If, however, they simply submit a statement and you believe elements of it to be incorrect, there is nothing to prevent you from saying in your statement that you made no such payment in November 2008. It would then be a matter for the judge to decide whose evidence they prefer.[/QUOTE]

Once again thanks, i stated in my witness statement to court that i did not make any such payment and ask them (Aktiv Capital) to provide the proof, but they didnt provide any proof and the judge accepted the Aktiv capital witness statement as proof of payment, even without any actual proof.

[stevemLS]

Re: Set aside case dismissed. Can i succesfuly appeal?

seed, afraid that is the role of the judge, to decide which evidence, on the balance of probabilities, is more likely to be correct.

[seed]

Re: Set aside case dismissed. Can i succesfuly appeal?

hi, thanks for all your advice, i have had many sleepless night over deciding to appeal or not. I feel the Aktiv capital came to court without any real evidence and the judge still accept that has unfair, and my ground of appeal will be that the judge has erred in making his decision, and another person would have decided the case in a different way, because the judge failed to ask for real evidence to proof payment was done at the time alleged. But then i ask what is my chance of successfully appealling, i do not really know. Can you shed light on this?