URGENT - CCJ - Set Aside

[diamondmine]

Very helpful. Thanks all.

I've followed the format of the witness statement in the guide.

Out of curiosity, what do you reckon the chance of success is here? Not that it should matter too much - but I'm a well presented young professional, and genuinely didn't have any knowledge of the claim against me until last week. I would hope that a reasonable / sympathetic judge would consent to the set aside in that circumstance.

[jaguarsuk]

Very helpful. Thanks all.

I've followed the format of the witness statement in the guide.

Out of curiosity, what do you reckon the chance of success is here? Not that it should matter too much - but I'm a well presented young professional, and genuinely didn't have any knowledge of the claim against me until last week. I would hope that a reasonable / sympathetic judge would consent to the set aside in that circumstance.

The fact you have promptly made the application and that you were not given the chance to defend the claim should mean your chances are good that it will be set aside.

One other thing to note in the face of the whole being marked as settled without payment is that you could request the claim be dismissed pursuant to CPR 24.2 (a)(i) that the Claimant has no real prospect of succeeding on the claim. It wouldn't change your set aside chances, the judge may say no and that you have to defend it, but it might be worth a try.

[diamondmine]

Hi all - thanks very much for you help a few months ago.

I have now (4 months later!) received a court date - and have been asked to file a witness statement setting out my defence to the claim, and to provide this to the court and the claimant in the next two weeks. I assume that this witness statement/defence is a response to the claimant's original claim (as I have already sent a witness statement setting out the reasons for which I believe I am entitled to a set aside order - as detailed in this thread).

My defence to the original claim, is, primarily: (i) that I had no knowledge of it; and (ii) that it has been marked as settled - not withstanding that no payment has been made in respect of it.

I believe my witness statement will be as follows:

***

1. I make this witness statement in response to the Notice of Hearing of Application issued in [x] on [x July 2022] in respect of claim number [x], which requested that I send to the Court and the Claimant a witness statement setting out my defence to the Claim.

2. I had no knowledge that any amount was owing by me to the Claimant, and believed my insurance provider would cover the cost of the services provided by the Claimant in their entirety.

3. On 24 February 2022 the Claimant marked the claim as settled, notwithstanding that no payment has been made to him in respect of the claim.

4. In these circumstances, I aver that the Claimant marking the claim as settled amounts to an admission that no debt was owed to him and that the judgment dated 05 August 2020 should not have been granted.

***

Very grateful for any thoughts or comments on this?

As to process, I would propose to send this by email/mail to both the court and claimant, together with my original N244 and the witness statement already given in respect of it. Let me know if that sounds sensible.

Thanks!

[jaguarsuk]

I wouldn't say you didn't have knowledge of owing anything, I would say that you didn't owe anything and that your insurance company were liable for the cost of the service.

That you aver the claimant marked the CCJ settled when the insurance company paid the claimant for his services.

And that nothing is owed as alleged or at all by you to the claimant.

[diamondmine]

I wouldn't say you didn't have knowledge of owing anything, I would say that you didn't owe anything and that your insurance company were liable for the cost of the service.

That you aver the claimant marked the CCJ settled when the insurance company paid the claimant for his services.

And that nothing is owed as alleged or at all by you to the claimant.

Thanks - I want to be careful about saying that. At the time I did think that my insurance covered the amount - but I do accept that that was not correct, my defence to the claim is that I: (i) never knew about the claim (this is also the basis for the set aside); and (ii) the claim has now been marked as settled.

Had I known about this claim at any stage before the judgment in default, I would have likely paid the debt. My primary defence (and I understand I am required to have one) has to then be that the claimant has marked the debt as settled, notwithstanding no payment - so his claim cannot exist.

Does that sound sensible?

[jaguarsuk]

The problem with that is that you are admitting liability, therefore the judgement is correct and it being marked settled by the claimant is up to them.

You can't admit liability and have the judgement set aside.

You are being asked for a draft defence, so you need to present one and 'I didn't know' isn't a defence.

[diamondmine]

The problem with that is that you are admitting liability, therefore the judgement is correct and it being marked settled by the claimant is up to them.

You can't admit liability and have the judgement set aside.

You are being asked for a draft defence, so you need to present one and 'I didn't know' isn't a defence.

Thanks - and I appreciate that. I think there's a needle to be threaded here.

The reason for a set-aside application is presumably, in a majority of cases, that the defendant was not validly served with the claim - such that they did not have time to either: (i) consider (and settle the claim); or (ii) defend it. Presumably some people would have settled the claim prior to the e.g. judgment in default, others would have gone on to defend it.

It's unfortunate, then, that, a defence is required to a claim which might have otherwise have been admitted, had the defendant known about it.

That means that I now require some nominal defence to a claim which I might otherwise have admitted. (It seems a "real prospect" of successful defence is only required under 13.1(a). 13.1(b) only requires that the defendant "should be" allowed to defend the claim - which doesn't impose a certain standard on the defence.)

As to what the defence is, in my case, I think a combination of: (i) not knowing of the claim; (ii) being under the impression that amounts owing would in all cases be fully paid by my insurer; and (iii) the claimant having already indicated that the claim is settled, notwithstanding that no payment has been made; together make for at least a tenable defence that no amounts are owing.

If you have any comments or wisdom or suggestions on how to advance that position, then I'd be much obliged - presumably this is a relatively well trodden fact pattern.

[atticus]

CPR 13.3 is in fact as follows (with my emphasis). You have misunderstood it.

13.3

(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

Sub paragraph (1)(a) is the primary ground - that you have a defence that has a real prospect of succeeding. (1)(b) is the fall-back position of desperation.