Setting aside CCJ - what if Claimant accepts draft consent order?

[aliyeshanyue]

Hi all,

I was reading this Legal Beagles article on how to set aside a CCJ:

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

I am currently reaching out to the claimant to set aside a CCJ on the grounds of having reasonable prospects of defending the claim (as I did not receive any of the court papers which were served to a different address) and the fact that it has been paid off now. I'm currently drafting the letter to the claimant attaching the draft consent order and I was just wondering if the claimant does accept the consent order, what happens next? I assume it needs to be filed at court and will there still need to be a separate court application to remove the cci? i.e. does a form n244 plus witness statement and defence still need to be filed?

Thanks!

Alex

[MIKE770]

at what stage was it paid off = within 28 days of a CCJ?

[aliyeshanyue]

The CCJ was discovered on 24 December 2018 and it was fully paid off on 24 January 2019 but I still need it to be removed from the register completely as I wasn't aware that a claim was being brought against me. I'm hoping that the Claimant will agree to sign the consent order and if they do then am I right in thinking that I still need to submit a form N244, witness statement with the signed consent order?

I'm also looking at the draft order in that same article. And clause 2 states: 'The Defendant shall file and serve its Defence by 4pm on [insert date]'

I'm not sure what I'm supposed to put as the date. Can somebody explain this clause to me?

Much appreciated.

Thanks

[ploddertom]

You say it was "discovered" on 24 December 2018 but you don't actually say when the Judgment was originally made?

[R0b]

Hi Alex
The draft order you referred to is actually drafted where you are seeking to set aside the CCJ and then submit a defence. Given that you have already paid the CCJ you are likely to find it difficult in getting the judgment set aside because if you disputed the debt you should have made an application to the court first and payment of an outstanding debt is generally deemed as an admission.

There's no obligation for the Claimant to consent to the set aside and it would be some risk of being unsuccessful if you went ahead and made the application anyway.

The draft order you have referred to isn't a consent order rather it's an order asking the CCJ to be set aside and for you to file a defence so that you can challenge the debt.

There is an example consent order I've posted a few times I will see if I can find it.

[R0b]

I've attached an example Consent Order. You probably want to remove the reference below as its unlikely to be applicable.

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

[aliyeshanyue]

The CCJ was discovered on 24 December 2018 and it was fully paid off on 24 January 2019 but I still need it to be removed from the register completely as I wasn't aware that a claim was being brought against me. I'm hoping that the Claimant will agree to sign the consent order and if they do then am I right in thinking that I still need to submit a form N244, witness statement with the signed consent order?

I'm also looking at the draft order in that same article. And clause 2 states: 'The Defendant shall file and serve its Defence by 4pm on [insert date]'

I'm not sure what I'm supposed to put as the date. Can somebody explain this clause to me?

Much appreciated.

Thanks

11 October 2017

[aliyeshanyue]

You say it was "discovered" on 24 December 2018 but you don't actually say when the Judgment was originally made?

Thanks Rob that's really useful. In the event that the Claimant does accept then would I file the consent order with the N244 and a witness statement to court?

Also if I do decide to submit an application to court to set the ccj aside because I don't want it to show on the register at all then what date do I put in the square brackets in the draft order?

Thanks very much for your opinion!

[R0b]

No witness statement would really be necessary in this case, as both parties have consented to the set aside. You would submit your N244 application with the signed consent order attached to it. In the section that asks you what you want from the court, you would probably need to say something along the lines of "An order that the judgment dated [date] be set aside. The parties have agreed terms of settlement in the form of a Consent Order that is attached to this application."

I would also perhaps suggest that you offer to pay the application fee which is £100 for a Consent Order. I don't think the claimant will want to pay that, they may even suggest paying their reasonable fees and that's something you might need to negotiate and ultimately weigh up as whether it is worth it. Their costs should really be that much other than signing the Consent Order itself but be prepared - I don't think anything beyond £100 would be considered reasonable.

As for the square brackets, it's the date the default judgment was given and the court should be able to tell you that, but more importantly you need to input the original claim number so the court can locate the relevant documents and information. If you don't then you are unlikely to get far.

So long as the default judgment is set aside, the CCJ will be removed but you may need to send a copy of the order to the Registry Trust as evidence, the courts are sometimes slow to update.

[aliyeshanyue]

Thanks Rob that’s really useful!

And what about the date in clause 2 of the draft order? It states: 'The Defendant shall file and serve its Defence by 4pm on [insert date]'

Would this date be 14 days from the date I send my application?I don’t understand why this clause needs to be included considering if I make an application to court to set aside the ccj I would include a defence already. Maybe I’m missing something. Would be grateful if you can explain the meaning behind this clause.

thanks so much

Alex

[Amethyst]

The Defence you include with the application is marked as a 'Draft Defence' and therefore requires serving and filing once the judgment is set aside and the claim continues. Further information may come up during the set aside proceedings, or other directions given, that will mean the defence needs amending, and if the draft with the application was already deemed filed and served you would be required then to make a further application to amend, so it is normal to provide a draft to show court you have a reasonable prospect of success with a Defence to get the set aside, and then have a date by which to file and serve it by.

( I hope that makes sense, sorry it's a little rambling )

[aliyeshanyue]

Hi Amethyst

Thanks for explaining. As a defence will need to be served within 14 days am I correct in thinking that the date on which it needs to be served should be left blank because we don’t know if the claim will continue once the judgment has been set aside?

Thanks so much

Alex

[Amethyst]

Yes, and the 14 days is calculated from when the order is written up, so any date you'd put in now would be irrelevant in any case - you can just leave the example as is complete with the square brackets.....or add in 14 days...... eg

It states: 'The Defendant shall file and serve its Defence by 4pm on [insert date 14 days from date of order ]'

[aliyeshanyue]

Thanks Amethyst. I’ll let you know what the outcome is

[aliyeshanyue]

Hi Amethyst

I have another question. Am I right I’m thinking that the draft defence doesn’t need to be signed considering it is in ‘draft’?