Summons not served correctly, does it stand?

[nicknock]

Hi

I have posted about this issue before and it's unfortunately reared it's ugly head again.

An old landlord brought a small claim against me in 2015 after i moved out of his property. He claimed i still lived there even though i went travelling around Spain.

I didn't receive the original court papers because i didn't live in the UK (with extensive proof) so of course i received a CCJ. When i became aware of the CCJ (some time later) i applied for a set aside, but the judge dismissed it as it was out of time, even though i had proof to show i hadn't lived at the property and in fact someone else was living there during the time according to council records!

The landlord has tried to enforce the judgement once or twice by sending various debt collectors but i've ignored it as i wont be forced to pay over £3K in bogus rent and charges. It is now nearing the 6 year mark and so he is obviously panicking it will soon be out of time and a man turned up at my house the other evening at around 9pm. He banged on the door and shouted through the window to open the door, the dog was going ballistic and he wasn't wearing a mask so of course I wasn't going to open the door, especially not when i was home by myself!


Eventually he left and slid an open envelope under the door which was a summons to attend court for questioning about my means. From what i have read, the summons should be served by handing it to me in person, so does this count? I thought maybe Covid could've changed the rules? In any case, I'm not going to attend as the order is out of time in August! Obviously i've read that this could count as contempt but Im hoping if it wasn't served correctly, he will have to reapply and by then the order will have run out. Also, the court form has my old address on it, even though he attended my current and correct address.

Any advice appreciated.

[efpom]

If my understanding of the law is correct, an unsatisfied CCJ never expires.

However, if the creditor hasn't taken any enforcement action in six years, they would need to apply to the court for permission if they want to enforce the debt using bailiffs.

It would seem from your writing that the creditor has, in fact, taken enforcement action.

You would be wise not to ignore the summons.

[nicknock]

Hi

I have posted about this issue before and it's unfortunately reared it's ugly head again.

An old landlord brought a small claim against me in 2015 after i moved out of his property. He claimed i still lived there even though i went travelling around Spain.

I didn't receive the original court papers because i didn't live in the UK (with extensive proof) so of course i received a CCJ. When i became aware of the CCJ (some time later) i applied for a set aside, but the judge dismissed it as it was out of time, even though i had proof to show i hadn't lived at the property and in fact someone else was living there during the time according to council records!

The landlord has tried to enforce the judgement once or twice by sending various debt collectors but i've ignored it as i wont be forced to pay over £3K in bogus rent and charges. It is now nearing the 6 year mark and so he is obviously panicking it will soon be out of time and a man turned up at my house the other evening at around 9pm. He banged on the door and shouted through the window to open the door, the dog was going ballistic and he wasn't wearing a mask so of course I wasn't going to open the door, especially not when i was home by myself!


Eventually he left and slid an open envelope under the door which was a summons to attend court for questioning about my means. From what i have read, the summons should be served by handing it to me in person, so does this count? I thought maybe Covid could've changed the rules? In any case, I'm not going to attend as the order is out of time in August! Obviously i've read that this could count as contempt but Im hoping if it wasn't served correctly, he will have to reapply and by then the order will have run out. Also, the court form has my old address on it, even though he attended my current and correct address.

Any advice appreciated.

Hi

Thanks for your reply. You can't pursue a CCJ after 6 years without permission from the court and he would have to explain why he hadn't enforced it until now. He has made two attempts in 6 years, he would've been able to summons me for questioning years ago, he's waited until 2 months before the 6 years is up.

My question though was whether the summons was served correctly and from everything I've read online, it wasn't. I just wondered if anyone had a concrete answer.

Thanks

[R0b]

It would appear that service was not valid.

Part 71 of the CPR governs orders to obtain information and 71.3 clearly states that the summons must be personally served on the person. Under Part 6, 9rule 6.5(3) states that for personal service to be valid, it has to be left with that individual.

Under the old rules but still applicable here, the House of Lords in Kenneth Allison Ltd v A.E. Limehouse & Co. held that to satisfy personal service, one must hand it personally to that person or, if the person refuses, then he must be told the what the documents are and then it is fine to leave those documents with or near him.

I won't go into detail on the other case law but I would suggest you have a read of Tseitline v Mihelson (link here). Paragraphs 13 - 24 are of relevance and particularly the references to the two cases in paras. 17 and 18 would support your argument that service was not properly effected.

As for the burden of proof, see para. 35 of Tseitline which the judge confirmed that the burden lay with the party serving the documents that there was good service.

There are also other procedural points under Part 71 that need to be complied with, particularly an Affidavit must be filed with the court by the person who served the document. Consequences of not attending means that you could be committed to prison for contempt of court so it's up to you as to whether you decide to ignore it or not. An alternative is that you could write to the court and CC the claimant explaining that you have found some documents posted through your door unexpectedly telling you that you must attend, however it is your understanding that these documents have not been properly served so you will not be attending. Or you could attend, ask the claimant for reasonable costs of attending and then explain to the judge that you object to the summons on the basis of invalid service.

Is the court date before August or after? You do realise the order to obtain information is just that, it is not an enforcement method and doesn't guarantee the claimant of getting any money.

[nicknock]

It would appear that service was not valid.

Part 71 of the CPR governs orders to obtain information and 71.3 clearly states that the summons must be personally served on the person. Under Part 6, 9rule 6.5(3) states that for personal service to be valid, it has to be left with that individual.

Under the old rules but still applicable here, the House of Lords in Kenneth Allison Ltd v A.E. Limehouse & Co. held that to satisfy personal service, one must hand it personally to that person or, if the person refuses, then he must be told the what the documents are and then it is fine to leave those documents with or near him.

I won't go into detail on the other case law but I would suggest you have a read of Tseitline v Mihelson (link here). Paragraphs 13 - 24 are of relevance and particularly the references to the two cases in paras. 17 and 18 would support your argument that service was not properly effected.

As for the burden of proof, see para. 35 of Tseitline which the judge confirmed that the burden lay with the party serving the documents that there was good service.

There are also other procedural points under Part 71 that need to be complied with, particularly an Affidavit must be filed with the court by the person who served the document. Consequences of not attending means that you could be committed to prison for contempt of court so it's up to you as to whether you decide to ignore it or not. An alternative is that you could write to the court and CC the claimant explaining that you have found some documents posted through your door unexpectedly telling you that you must attend, however it is your understanding that these documents have not been properly served so you will not be attending. Or you could attend, ask the claimant for reasonable costs of attending and then explain to the judge that you object to the summons on the basis of invalid service.

Is the court date before August or after? You do realise the order to obtain information is just that, it is not an enforcement method and doesn't guarantee the claimant of getting any money.

Hi

Thanks for your reply. The date is this month yes.

I do understand it is just to obtain information at this stage but my understanding is also that if i have an income that I can be ordered to pay or have an attachment of earnings. However, i am actually self-employed so Im not sure what his other options would be. It's more the fact that from a principles perspective, i don't want to have to go to court and show all of my financial documents to complete strangers when i haven't done anything wrong. The whole thing is a joke to be honest, the fact the courts can order you to pay based on the fact that you didn't receive the paperwork in time to do anything about it is shocking.

I think i might contact the court and say the papers have not been served correctly. I was just concerned it might count as service being pushed under the door if i refused to open the door.

Thanks

[R0b]

Well, the fact of the matter is that you have a judgment against you and the claimant is entitled to take enforcement action or obtain further information. If you didn't like the judges decision then you could have appealed but you chose not to so that one I'm afraid is on you and now it's catching up, rightly or wrongly.

I think it would be sensible to inform the court the basis of your non-attendance clearly explaining that you consider service to be invalid on the basis that the documents had been pushed through under your door. Probably also wise to make reference to the House of Lords case and paste the relevant paragraph about how one should comply.

There is a risk you might nevertheless be ordered to attend court to explain yourself anyway in which case you should probably do that, and if you are ordered to give information then you either refuse due to the above or you comply.

That's a choice you will have to make when you cross that bridge.

[nicknock]

Well, the fact of the matter is that you have a judgment against you and the claimant is entitled to take enforcement action or obtain further information. If you didn't like the judges decision then you could have appealed but you chose not to so that one I'm afraid is on you and now it's catching up, rightly or wrongly.

I think it would be sensible to inform the court the basis of your non-attendance clearly explaining that you consider service to be invalid on the basis that the documents had been pushed through under your door. Probably also wise to make reference to the House of Lords case and paste the relevant paragraph about how one should comply.

There is a risk you might nevertheless be ordered to attend court to explain yourself anyway in which case you should probably do that, and if you are ordered to give information then you either refuse due to the above or you comply.

That's a choice you will have to make when you cross that bridge.

Hi

I did appeal. The judge said both times, that because i hadn't applied for the set aside in time, it stood. Beyond frustrating as you can imagine, when i have hard evidence to show i was living elsewhere.

[R0b]

Well, it's a bit of an oddity that because there is no time limit to apply to set aside a default judgment. One of the considerations is that after becoming aware of the judgment you should be prompt in your application but that is not the same as there being a finite time limit from the date of the judgment. If you knew of the judgment but sat on it and that's the reason why the set aside was refused then it may be difficult to get around that but as I don't know your grounds for appeal and arguments you made it's difficult to assess.

Anyway, that's in the past which we can't change so I would recommend you consider writing to the court at least in the first instance. The usual rules are that all communications to the court means you should also copy in the other side which means you would be tipping them off to their defective service, so that's up to you if you want to do that or leave them out and see what happens.

[nicknock]

Well, it's a bit of an oddity that because there is no time limit to apply to set aside a default judgment. One of the considerations is that after becoming aware of the judgment you should be prompt in your application but that is not the same as there being a finite time limit from the date of the judgment. If you knew of the judgment but sat on it and that's the reason why the set aside was refused then it may be difficult to get around that but as I don't know your grounds for appeal and arguments you made it's difficult to assess.

Anyway, that's in the past which we can't change so I would recommend you consider writing to the court at least in the first instance. The usual rules are that all communications to the court means you should also copy in the other side which means you would be tipping them off to their defective service, so that's up to you if you want to do that or leave them out and see what happens.

Hi

There actually is. My solicitor advised me at the time that it would be very difficult to have it set aside after 3 months. I acted as soon as i became aware of it which was nearly a year later when i applied for credit.

[R0b]

So if there is a time limit, what is it? I will stand corrected if you can give me an authority to back up the point that there is a time limit for applying to set aside a default judgment but I am not aware of any case that sets a time limit.

I would add that there is plenty of people posting on here that have had their default judgments set aside longer than 12 months so it is possible, it just comes down to how it was argued on the day.

[nicknock]

So if there is a time limit, what is it? I will stand corrected if you can give me an authority to back up the point that there is a time limit for applying to set aside a default judgment but I am not aware of any case that sets a time limit.

I would add that there is plenty of people posting on here that have had their default judgments set aside longer than 12 months so it is possible, it just comes down to how it was argued on the day.

Sorry, i didn't come here to provide information on CCJ's and time limits, i came looking for advice on whether the summons had been served correctly. Thanks.

[R0b]

Of course you didn’t, but you made a specific statement that applications for set aside have a time limit and then your not prepared to give an explanation. I am genuinely curious because I’m pretty confident there is no time limit but if you know something that I don’t then sharing that knowledge is helpful - since you don’t wish to answer it I will assume you have nothing.

Anyway your original question has been answered so good luck.

[nicknock]

Sorry, i didn't come here to provide information on CCJ's and time limits, i came looking for advice on whether the summons had been served correctly. Thanks.

It was a good few years ago so I can't remember the exact details sorry. In any case, i rang the court to check what time tomorrow and it's been moved to October because it wasnt served properly! However, that's outside the 6 years so no idea why they've allowed it unless they obviously havent realised.

[R0b]

That’s because an order to obtain information is not an enforcement method.

[nicknock]

That’s because an order to obtain information is not an enforcement method.

But they're still allowed to order information with the view to enforcing it outside the 6 year point?