Urgent Advice needed - Application to set aside a CCJ

[joanna4685]

Re: Urgent Advice needed - Application to set aside a CCJ

Rob,

Will do, THANK you SO much for your help, this is truly wonderful. I'm so grateful.

J

[R0b]

Re: Urgent Advice needed - Application to set aside a CCJ

I've attached the draft order.

You can fill out the N244 application here, ->http://s3-eu-west-1.amazonaws.com/hm...r/n244-eng.pdf

For the N244 application you can fill in all the easy bits like the details. Don't forget you are the Defendant not the Claimant so make sure to put your name in the Defendant box and also tick that you are the Defendant

For the rest you can fill out the following:

3. An order (a draft of which is attached) that the judgment dated [DATE] (Claim No. XXXX) be set aside because, in accordance with CPR 13.2 and 13.3, service of the Claim Form was defective and the Defendant has a real prospect of successfully defending the claim for reasons set out in the witness statement attached.

4. Yes

5. At a hearing

6. 30 minutes

8. District judge

9. Claimant

9a. If the claimant is a limited company then their registered address or their last known usual address.

10. Attached witness statement

Make sure to fill in the box at the bottom and put your address in there otherwise nothing will get sent to you.

[joanna4685]

Re: Urgent Advice needed - Application to set aside a CCJ

THANK YOU SO MUCH FOR YOUR HELP.
I'm so grateful for the advice and forms and will complete this evening and send first thing.

With kind regards

J

[joanna4685]

HELP! Awaiting court hearing to set aside CCJ

Good Afternoon

Let me start by saying how amazing and helpful this forum is.
After help completing my witness statement and N244 in application of setting aside a CCJ for an alleged parking offence 2 years ago, I have just heard that my application has been processed and I'm awaiting a date for my hearing at county court biz centre.

I'm absolutely terrified and have no idea of the process -

How long does it usually take to get a date for the hearing
will I have to appear in court and defend myself?
Will I be given any idea of what will happen in court, in advance?
Will I be cross examined over my defence and will I need to prepare anything?
I presume the claimant will be sent details of my application - will I have any idea of what they will say before attending any hearing.

Sorry, this is a whole new and terrifying world! Any advice would be hugely appreciated.

Thank you in advance.

J

[R0b]

Re: HELP! Awaiting court hearing to set aside CCJ

Hi Joanna,

It's perhaps best you stick to one thread so we don't lose track of your history. [MENTION=49370]Kati[/MENTION], could you merge the two threads if possible when you have some time? http://www.legalbeagles.info/forums/...683#post663683

Briefly, the next court dates available could be 6 weeks but not uncommon for it to be longer.
You will appear in court yes, you have to satisfy the grounds of setting aside default judgment, these are contained in CPR 13.2 and 13.3.
You will not be cross examined as the judge has to determine whether or not you have a real prospect of successfully defending the case because you did not receive the claim form (judge has discretion to set aside on this ground) or if service of the claim form was defective (mandatory set aside).

The court will put the claimant on notice of your intention to set aside and they may oppose your application. You are unlikely to have an idea of what their objections will be until the day of the hearing unless something is filed with the court to that extent.

I wouldn't worry too much right now, await the date of your court hearing and then can go from there.

[joanna4685]

Re: HELP! Awaiting court hearing to set aside CCJ

Hi thank you so much for this information. I wanted to include my previous thread but when I looked on my recent activity it's disappeared! Bit surprised as it was only last week - do you know if it is archived somewhere else?

You will appear in court yes, you have to satisfy the grounds of setting aside default judgment, these are contained in CPR 13.2 and 13.3. Where can I find CPR 13.2 and 13.3?

Thanks again and hoping my thread from last week can be retrieved.

J

[Kati]

Re: HELP! Awaiting court hearing to set aside CCJ

@Kati, could you merge the two threads if possible when you have some time? http://www.legalbeagles.info/forums/...683#post663683

sorted :yo:

[R0b]

Re: HELP! Awaiting court hearing to set aside CCJ

Hi thank you so much for this information. I wanted to include my previous thread but when I looked on my recent activity it's disappeared! Bit surprised as it was only last week - do you know if it is archived somewhere else?

You will appear in court yes, you have to satisfy the grounds of setting aside default judgment, these are contained in CPR 13.2 and 13.3. Where can I find CPR 13.2 and 13.3?

Thanks again and hoping my thread from last week can be retrieved.

J

At the top of the Forum there is a drop down called 'Quick Links' click on there and select subscribed threads. That will list all the threads you have posted in if you want to find it.

https://www.justice.gov.uk/courts/pr...l/rules/part13

It probably won't make much sense to you but your witness statement should hopefully satisfy the criteria to set aside.

[joanna4685]

Re: HELP! Awaiting court hearing to set aside CCJ

sorted :yo:

THANK YOU!

[joanna4685]

Re: HELP! Awaiting court hearing to set aside CCJ

At the top of the Forum there is a drop down called 'Quick Links' click on there and select subscribed threads. That will list all the threads you have posted in if you want to find it.

https://www.justice.gov.uk/courts/pr...l/rules/part13

It probably won't make much sense to you but your witness statement should hopefully satisfy the criteria to set aside.

Hi, thank you so much for all your help, I'm hoping my witness statement will work alone.

However, I have been reading up on the Claimant in my case - MIL Collections Ltd who appear to be rather notorious - they appear on several parking rights forums - please see below example from Parking Prankster site:

MIL Collections Ltd have a fairly poor reputation as debt collectors and a quick Google search turns up a large number of complaints regarding the tactics they use. Although they are members of the CSA, in The Pranksters opinion many of the tactics they use are against the CSA code of practice.

Recently MIL have been buying old parking cases from parking companies for around £1 each, and have been attempting to monetise these by aggressively contacting the vehicle keeper and hugely inflating the cost. MIL move to court action as soon as possible, failing to follow practice directions for pre-action conduct. The idea appears to be that by filing a court claim either they scare the keeper into paying up, or the keeper fails to respond so they can get a default judgment..

The Prankster previously blogged about them in this blog entry.

Of course, one reason that the monies were never paid is often that they were not owed in the first place. Some clever people in the parking and debt collection industries have realised that this is no barrier to making money. By filing court claims in bulk, enough people will be scared into paying up that a lucrative income stream is almost guaranteed. While it is easy and cheap to file a bogus claim in this way, it is very tricky for the man in the street to know how to fight this properly, or to unwind it if things have got as far as a default judgment.

This week another MIL case made it to a county court hearing. The hearing took place in Manchester between MIL Collections and Dr S. Dr S was assisted by the British Motorists Protection Association with HO87 running the defence and preparing the documents, and John Wilke acting as lay representative. MIL Collections, smarting with their earlier court loss, decided to dispense with the services of their barrister. In fact, they even dispensed with the services of their own staff, not bothering to send anyone all the way from Truro to Manchester just to get a good spanking in court.

The defence had a number of good arguments about champterous assignment of debt, but these were not specifically tested in court, the judge deciding to rule on easier points.

The case was won due to failure to comply with Schedule 4 of POFA, the lack of a valid deed of assignment, no proof that the parking company had the right to issue tickets and no proof of the right to litigate.

The judge made it clear that MIL Collection's case was wholly deficient and made even more hopeless as the evidence was served late and was not filed with the court. Additionally, when the judge was shown the evidence served he was of the view that it did not meet court requirements anyway.

MIL Collections had not sought to excuse their non-attendance either.

In the costs hearing, John Wilkie argued that as MIL Collections had neither turned up nor notified the court they caused court and the defendant's time to be unnecessarily wasted. The claim was entirely deficient, as outlined in the defence and witness statement, and had no chance of succeeding. Had the defendant known the claimant was not coming they could have had a paper based hearing.

Because of their conduct and pursuing a wholly deficient and hopeless case ab initio it was entirely appropriate for a punitive costs order to be made, which would include Lay Representative costs. This would be under the 'unreasonable behaviour' provision (27.14.g) of the small claim track rules.

John Wilkie pointed out DDJ Buckley's judgment in the Forgione case, which the judge was aware of. The judge hemmed and hawed and finally agreed. He ruled that pursuing a hopeless case, serving late, failing to file, failing to turn up and wasting court time was certainly unreasonable behaviour and awarded the full costs asked for, which were defendant's loss of earnings, travel, and the full lay representative expenses, all to be paid withing 14 days or enforced.

The judge suggested a Third Party debt Order as MIL Collections had very kindly supplied their bank details, and Dr S agreed this was the best method for enforcement if required. It does appear that the courts are not happy with being used as speculative debt collectors by the likes of MIL Collections, Civil Enforcement Limited and a few others, and that word is going around the circuit.

Do you think I should also bring (as advised on these sites) - the following to the court's attention during my hearing (waiting for it to be scheduled):

1. no debt existed - I did not owe a payment to the parking firm
2. The debt wasn't lawfully assigned
3. MIL bough a bare right to litigate - champerty and maintenance - they cannot buy the right to sue for breach of contract.
4. MIL failed to meet the requirements to pursue the keeper for payment
5. Even if they could pursue the keeper, the keeper did nothing wrong
6. The driver never owed a payment to the parking company

is it too late to bring these in to my defence? I appears that champerty and maintenance has been used successfully in several cases against MIL.

I appreciate my N244 and witness statement has already been submitted and i have had notification that I will receive a date for my hearing in Manc,
Any advice at this stage would be most helpful.

Also as I've never seen any of the papers supposedly sent to me by MIL - should I demand to see those so I can check validity?

WITH HUGE THANKS IN ADVANCE

J

[R0b]

Re: Urgent Advice needed - Application to set aside a CCJ

I assume MIL is not the original parking company?

A set aside application is simply to determine if you have a prosect of successfully defending the claim and is not a place to hear the claim in full.

That being said, there is nothing stopping you from asking the judge to consider an application for summary judgment at the same time. You could enforce this point by explaining that you also have reasonable grounds that no assignment took place and MIL did not have the right to bring a claim in the first place.

That would be subject as to whether or not MIL actually turn up, if they do not then the judge might not consider it appropriate to hear summary judgment in their absence. If the judge sets aside the order and the claim procceds to trial you could ask the judge to allow you to file a counterclaim for malicious prosecution in light of the Supreme Court case Willers v Gubay 2016. Malicious prosecution will be on the basis that MIL did not have a right to bring a claim or that no assignment existed, if they had some reaosnable belief of a claim against you then there will be no claim for malicious prosecution. It can only be claimed where a person has maliciously prosecuted someone without grounds to bring a claim. Damages would be the award.

I am not sure where Champerty and Maintenance comes into play here. The meaning of such is that a disinterested party funds or supports a claim possibly in return for a share of the damages/compensation. I am not sure how this would apply if MIL have bougth a claim but no assignment took place? It would be an equitable assignment to say the lease but not a legal one in which they could bring in their own name. There is no issue in buying a debt from another company, the question that ultimately arises is whether they have a right to bring a claim in their own name. If it's equitable, the legal owner should bring a claim with MIL as an interested party. You would need to prove that they funded the claim and such funding amounted to maintenance or is champertous. I am aware that assignments could be considered maintenance but I don't know the full reasons why, I would need to look into it and what authorities are out there.

As for the keeper liability arguments, I'm not an expert on parking tickets so I'll tag @mystery1 to answer those points.

[R0b]

Re: Urgent Advice needed - Application to set aside a CCJ

Just to add to my post and in response to your query of champerty, I think the answer is that it does not apply. Assignments as you point out a bare right to litigate are not enforceable. Someone who is injured and has a personal injury claim, one cannot buy that right to litigate. Though there are exceptions.

However, this is a case of a debt, which the right cannot be deemed as champerty or maintenance. A debt, is also considered property and an exception to an assignment is where there is an interest in property (being the debt).

You might wish to read two Court of Appeal cases which confirm this:

Fitzroy v Case 1905 held that the assignment of the debts was not invalid as savouring of maintenance or being otherwise against public policy.

Camdex International Ltd v Bank of Zambia 1996 held that the assignment of BZ's debt was not of itself invalid for maintenance or champerty simply because litigation to recover the debt was envisaged. The substance and not the form of the transaction had to be examined. It was important to recognise cases where a champertous intention was hidden behind the assignment of a debt and which would raise a public policy objection, but in the instant case the debt was a bona fide purchase under the Law of Property Act 1925 s.136 and was therefore enforceable.

[mystery1]

Re: Urgent Advice needed - Application to set aside a CCJ

Just to add to my post and in response to your query of champerty, I think the answer is that it does not apply. Assignments as you point out a bare right to litigate are not enforceable. Someone who is injured and has a personal injury claim, one cannot buy that right to litigate. Though there are exceptions.

However, this is a case of a debt, which the right cannot be deemed as champerty or maintenance. A debt, is also considered property and an exception to an assignment is where there is an interest in property (being the debt).

You might wish to read two Court of Appeal cases which confirm this:

Fitzroy v Case 1905 held that the assignment of the debts was not invalid as savouring of maintenance or being otherwise against public policy.

Camdex International Ltd v Bank of Zambia 1996 held that the assignment of BZ's debt was not of itself invalid for maintenance or champerty simply because litigation to recover the debt was envisaged. The substance and not the form of the transaction had to be examined. It was important to recognise cases where a champertous intention was hidden behind the assignment of a debt and which would raise a public policy objection, but in the instant case the debt was a bona fide purchase under the Law of Property Act 1925 s.136 and was therefore enforceable.

It has won several lower court small track cases. Essentially, no debt exists and what does exist is a breach of contract. MIL can't litigate on that breach. I'm no expert on it but as it has done well so far it well worth arguing.

M1

[R0b]

Re: Urgent Advice needed - Application to set aside a CCJ

If you were to take that stance then every assignment of a loan, credit card, hire purchase would be deemed void because when they are assigned they all stem from breaches of the contract and so the assignee would have no right to bring a claim.

itiscommonly know that an assignment of a tort (and contract) is deemed as champertous as that is a bare right for damages. But given the cases above it is clear that a debt is not considered to fall within this category. If the assignment was in good faith then it stands. In Camdex the court stated that just because the debt was bought at low value and the defendant disputes the debt this is not contrary to public policy and become unassignable.

Exceptions to champerty and maintenance is when there is an assignment of property. I would consider a debt to be both property and a cause of action so it would fall within the exceptions.

I think it would be difficult to argue that MIL did not buy the debt in good faith if the cases above were cited unless there is good reason otherwise.

[joanna4685]

Re: Urgent Advice needed - Application to set aside a CCJ

If you were to take that stance then every assignment of a loan, credit card, hire purchase would be deemed void because when they are assigned they all stem from breaches of the contract and so the assignee would have no right to bring a claim.

itiscommonly know that an assignment of a tort (and contract) is deemed as champertous as that is a bare right for damages. But given the cases above it is clear that a debt is not considered to fall within this category. If the assignment was in good faith then it stands. In Camdex the court stated that just because the debt was bought at low value and the defendant disputes the debt this is not contrary to public policy and become unassignable.

Exceptions to champerty and maintenance is when there is an assignment of property. I would consider a debt to be both property and a cause of action so it would fall within the exceptions.

I think it would be difficult to argue that MIL did not buy the debt in good faith if the cases above were cited unless there is good reason otherwise.

HI ALL
Thanks so much for all comments, I am however now totally confused! There is so much talk of this company all over the internet, I'read about 15 cases recently won against them - not all at set aside stage of course, some at original claim stage and several in Manchester where I will be appearing. It would seem odd to me not to mention any of this and not to bring any of it into question? I'm just totally confused about what is the best thing to say- the defence below has been widely practices in cases against MIL, they claim that the letters received by MIL don't look official but of course I haven't seen any of the paperwork that was supposedly sent to me - should I ask to see these? Or am I just relying on my witness statement and claim that I don't owe anything as I didn't do anything wrong and they didn't try to find me? For me the question of whether the debt existed or not at the time isn't proven???


1/ The Claimant has provided no evidence that there was a valid assignment of debt, in the form of a Deed of Assignment signed by the original creditor, pursuant to s136 of the Law of Property Act 1925. Absent such evidence, the Claimant no locus in this matter.

2/ Even if there was a valid Deed of Assignment, the Claimant has no interest in, or privity to, any purported original contract, and it is submitted that such an assignment would be champertous. The sole purpose is to enable the Claimant to instigate legal proceedings, which is a chose in action, and on that basis the Claim should be struck out by the Court, as was the case in MIL Collections v Stephen Bowker, Case No B1QZ7N32, Oldham CC 15/01/2016