Urgent Advice needed - Application to set aside a CCJ

[R0b]

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

Is this to do with your set aside hearing still or has the CCJ already been set aside?

[joanna4685]

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

Is this to do with your set aside hearing still or has the CCJ already been set aside?

Hi there, this is to do with my set aside hearing.

[joanna4685]

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

Is this to do with your set aside hearing still or has the CCJ already been set aside?

I received the Notice of Defendant's Application from the court which had my witness statement and evidence attached, but shows nothing from the Claimant, should I receive a witness statement from them ahead of court??

[R0b]

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

Have MIL indicated that they will be attending the hearing or have you not heard of them at all since your application was made?

I will post up some formalities and an outline as to how you should present your case. You shouldn't be too worried because its not a full hearing and is just to determine whether the CCJ should be set aside based on your evidence - there seems to be a good chance as I recall. I'll also see if I can find any case law that is relevant to your purpose and I would also suggest that you seek the costs of the application back from the Claimant if the court deems that the claim form was sent to the wrong address and it was defective. You should also try and get the judge to make an unless order on MIL to resubmit the claim form to your correct address as per the Draft Order so that it allows you to plead your defence properly.

[joanna4685]

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

Have MIL indicated that they will be attending the hearing or have you not heard of them at all since your application was made?

I will post up some formalities and an outline as to how you should present your case. You shouldn't be too worried because its not a full hearing and is just to determine whether the CCJ should be set aside based on your evidence - there seems to be a good chance as I recall. I'll also see if I can find any case law that is relevant to your purpose and I would also suggest that you seek the costs of the application back from the Claimant if the court deems that the claim form was sent to the wrong address and it was defective. You should also try and get the judge to make an unless order on MIL to resubmit the claim form to your correct address as per the Draft Order so that it allows you to plead your defence properly.

Hi there, thank you so much, as ever, look forward to your advice.

I have heard nothing at all from MIL, I wanted to see where they had sent things to so I am confident in my defence, but I have nothing other than the dates of comms the court has sent to me. How would I know if MIL is to attend - they (MIL Collections) are listed as 1st Claimant on the notice of Defendant's application from the court , there is a time and date/place for the hearing but it doesn't say who would be attending or confirm attendance for MIL?

Thanks again

J

[R0b]

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

If you haven't responded or put in any objection to the application there could be a likelihood that they may not even turn up. Anyway, below is a very simple format and layout of what to say/do. Just follow your witness statement and insert it into the below where necessary and you should be fine.

You made the application so you introduce the parties and what the application is about
Good morning Sir/Madam, my name is X and I am the Defendant making this application. Miss/Mr X opposite is acting on behalf of the Claimant. This is an application under CPR 13.3 to set aside the judgment order dated XX XX XX. Ask if the judge has a copy of the bundle (the documents), might be best keep a copy to hand if not.

Grounds to set aside
The Defendant seeks to set aside the order on the grounds that judgment was wrongly entered as service of the claim form was defective. Furthermore the Defendant never received the Claim Form and did not have the opportunity to defend the claim.

Ask the judge if he/she has any further questions otherwise you would like to proceed with your first submission.

Submissions
1. State what your first submission is e.g. service of the claim form was defective as the defendant did not take reasonable steps to ascertain your last known address. Explain why it was defective, you moved address you updated your details they ought to have known after making reasonable inquiries. There is no evidence this has taken place and so service was defective.

You should also make reference that if you had received the claim form you would have defended the claim as you were given express permission to park where you should have been. Offer to show the judge your evidence where required.


Conclusion To conclude your submission you will need to say something like, Sir/Madam that concludes my submissions. It is the Court's power and discretion to set aside the judgment where the defendant has a reaosnable prospect of successfully defending the case and/or there should be some other good reason why under CPR 13.2.

It is submitted that you have satisfied this criteria and that you ask the court to set aside the judgment. Unless the court has any further questions, this is the end of your submissions.

[joanna4685]

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

If you haven't responded or put in any objection to the application there could be a likelihood that they may not even turn up. Anyway, below is a very simple format and layout of what to say/do. Just follow your witness statement and insert it into the below where necessary and you should be fine.

You made the application so you introduce the parties and what the application is about
Good morning Sir/Madam, my name is X and I am the Defendant making this application. Miss/Mr X opposite is acting on behalf of the Claimant. This is an application under CPR 13.3 to set aside the judgment order dated XX XX XX. Ask if the judge has a copy of the bundle (the documents), might be best keep a copy to hand if not.

Grounds to set aside
The Defendant seeks to set aside the order on the grounds that judgment was wrongly entered as service of the claim form was defective. Furthermore the Defendant never received the Claim Form and did not have the opportunity to defend the claim.

Ask the judge if he/she has any further questions otherwise you would like to proceed with your first submission.

Submissions
1. State what your first submission is e.g. service of the claim form was defective as the defendant did not take reasonable steps to ascertain your last known address. Explain why it was defective, you moved address you updated your details they ought to have known after making reasonable inquiries. There is no evidence this has taken place and so service was defective.

You should also make reference that if you had received the claim form you would have defended the claim as you were given express permission to park where you should have been. Offer to show the judge your evidence where required.


Conclusion To conclude your submission you will need to say something like, Sir/Madam that concludes my submissions. It is the Court's power and discretion to set aside the judgment where the defendant has a reaosnable prospect of successfully defending the case and/or there should be some other good reason why under CPR 13.2.

It is submitted that you have satisfied this criteria and that you ask the court to set aside the judgment. Unless the court has any further questions, this is the end of your submissions.

THANK YOU SO MUCH!

I will follow this to the letter. I would however feel much better if I had copies of documentation and knew exactly where they claim to have sent their forms to. Is there anyway I can obtain this info before the hearing next week? I have written to MIL but have received nothing. Are they supposed to submit their own witness statement to the court in advance of the hearing? II'm worried they might try to show that they looked for me and I want to be ready for whatever they might say.

[R0b]

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

Sorry I thought for some reason the court confirmed that the claim form was sent to the old address, if this is not the case then substitute it and say you have asked the defendant a number of times where the claim form was sent to they have not responded in anyway and ignored you. Nonetheless you have not received the claim form to enable you to defend the claim. It is more than likely that they sent it to the old address without taking reaosnable steps to identify your residence.

It is up to MIL to show that service was effective. Even if service was considered effective then judgment can also be set aside where you did not receive the claim form. You can rely on the case Godwin v Swindon Borough Council 2001 (link):

Rule 13.3(1)(b) has a disjunctive alternative, so that the court may set aside or vary judgment entered in default if it appears to the court that there is some other good reason why the judgment should be set aside or varied or the defendant should be allowed to defend the claim. In my view, this is plainly capable of extending to circumstances where the defendant has not received the claim form and particulars of claim before judgment was entered against him. It is not an absolute right, but does not have to depend on the defendant having a real prospect of successfully defending the claim. The court therefore has sufficient power to do justice in these cases and will, no doubt, normally exercise this discretion in favour of a defendant who establishes that he had no knowledge of the claim before judgment in default was entered unless it is pointless to do so.

I would suggest you print off the front page and then the page which has the reference and take it to court in as support of your claim.

[joanna4685]

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

The court said they couldn't send me a copy of the claim form, all they had was the dates that they shared with me, can I ask the court again for a copy of the claim form, I spoke with Northampton. Is there another route I can take? I would love to get my hands on it!

Thanks so much for all of your guidance. At what point in the hearing do I mention the Godwin v Swindon case?

[R0b]

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

Just break up the grounds for set aside.

Ground 1 = service defective as reaosnable steps not taken on the basis that claim form not sent to correct address

Ground 2 = never received the claim form

You can use the Godwin case on ground 2, just say that non-receipt of a claim form is grounds for setting aside. This was illustrated by Lord Justice May in Godwin v Swindon Borough Council. You should offer a copy of the case and highlight the section on it you are referring to, once the judge has got a copy wait until judge is ready and then read out the relevant paragraph.

Once you've read it you can go on to explain that if the claim received you would have defended as you have evidence and express permission to park there, and carry on with your arguments and evidence.

[joanna4685]

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

Thank you so much for your help, I will indeed follow this guide!

Is there anything I can do if the judge decides not to grant a set aside? Could I end up paying the costs of the claimant? Is that the end of the matter?

[joanna4685]

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

Just break up the grounds for set aside.

Ground 1 = service defective as reaosnable steps not taken on the basis that claim form not sent to correct address

Ground 2 = never received the claim form

You can use the Godwin case on ground 2, just say that non-receipt of a claim form is grounds for setting aside. This was illustrated by Lord Justice May in Godwin v Swindon Borough Council. You should offer a copy of the case and highlight the section on it you are referring to, once the judge has got a copy wait until judge is ready and then read out the relevant paragraph.

Once you've read it you can go on to explain that if the claim received you would have defended as you have evidence and express permission to park there, and carry on with your arguments and evidence.

Good Morning

Pleased to say I have just called Northampton again and managed to get some more information from them - CCBC has confirmed both the claim form and the judgement were sent to my old address, where I was alleged to have parked wrongfully, so all documentation went to my original address, I now feel confident that MIL made no effort to find me and my new address.

[R0b]

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

That's good to hear, you can use that in your arguments. Just be mindful that this is the small claims so the format might change and you might not be required to introduce everyone and state your reasons why you are making the application. The Judge might do all of this and then go straight to MIL and ask for the response to the application before coming to you or might ask if you want to add anything further. So be prepared that the way in which things are done might not be as expected.

[joanna4685]

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

The hearing is taking place in Manc County Court. Thanks so much for the advice, I'll make sure I'm prepared for whichever approach.
This is so incredibly helpful.

Thanks again.

[joanna4685]

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

Hi There

It is with great pleasure that I write to tell you that this afternoon I won my set aside!!!!

The Claimant didn't even turn up or let the court know that they wouldn't be attending. As, I such understand it was a fairly infomal hearing, the judge considered both grounds and agreed on both counts to grant the set aside. As per my request (on your advice in the witness statement) The Claimant now has 28 days to re file the claim with the court - at which time I can decide if I want to defend or settle. Most importantly the CCJ has been set aside and I look forward to being to have this removed from my records. She also allowed me costs for travel etc - I had great pleasure in charging the Claimant for my parking expenses - oh, the sweet irony

I can't tell you how grateful I am for your most generous help and expert advice, it was clear the judge was impressed with my statement and organisation, as I was representing myself - I am super grateful for this.

THANK YOU SO MUCH for all that you do to help people like myself seek justice. I'm so happy.

J