CCJ set aside - Advice for court hearing.

[whist]

Hello,

I recently found out I had a CCJ when I received a notice from the bailiffs. The notice was sent to my current address but turned out that the CCJ was sent to an old address.

I immediately contacted the county court where the order was given and a very helpful court clerk told me to what to do. I completed the required form to stay the high court action and requested hearing to set aside CCJ.

I now have a court date in April for set aside hearing

Background
-------------
I had been in dispute with a previous employer from around early 2014 where they claimed they overpaid my salary after I left the company. I disagreed with them and asked them to prove this other than with an itemized list of payslip transactions that made very little sense. They later passed the debt collection to a firm of solicitors after a few months.

I argued that the payment made to me was as a result of monies owed from share options and other schemes I was part of when I was employed and which had to be liquidated when I left. We have been going back and forth on the issue for over 2 years mainly by email communication. During that time I moved to a new address.

On a number of occasions during the email exchange, I referred to the fact that I had changed address - not explicitly - but in statements like " I have just moved house and my papers are in the loft" etc.

in July 2017, I got a letter through the post at my new address to check my address, I called back and left a message on VM saying Yes I had changed address.

I didn't hear back and the next thing was the bailiffs notice I received in December for CCJ issued in September.

My argument for set aside was that the claimant knew I had changed the address so had no excuse for sending the claim to the wrong address. The bailiff was able to get my new address. I also mentioned that I called them to notify them of change of address when I received a letter asking me about it.
I also stated that we had been in dispute for several months and I believe that given the opportunity I would have successfully defended the claim.

After I had put in the set-aside application, I requested a copy of the original claim. The claim stated that I was overpaid salary in February 2014. This is one of the arguments, I had with them. I had shown them a copy of the payslip for February which showed the payment from the employer of the sum total of £247. They stated I owed £2400 or thereabouts. In one of the correspondence, they had agreed that they made a mistake about the month and it was in fact April. THis is correct. I.e. Money was paid in April 2014, but I disputed what the payment was for.

In the claim used to secure the CCJ, they have repeated February 2014 as the date overpayment took place.

My question is whether to just stick with the fact that February 2014 was the date stated in the claim and I can easily prove with bank statement and payslip that they did not pay me the sum in February. Will the judge allow me to introduce evidence not mentioned previously?
Since I was unaware that they were repeating the previous pay date of February, my defense put forward on the N226 was that we were in discussions and they had not proven that I owe them the money. I also offered to have the matter mediated by a body like ACAS to get the matter resolved.

If successful, can I claim the cost of N226 and litigant in person?

Many thanks

[whist]

Anyone?

[Kati]

tagging AmethystÂ*Â*Diana M

[Amethyst]

Good Morning, Apologies your post has been missed.

When you filed your set aside application did you include with it a draft defence ? If not, and you get the setaside on the grounds of them having issued the claim to the wrong address,Â* which seems likely as you had made them aware you had changed address, even if you hadn't told them the new address, and they hadn't asked for it, as you say they had no reason to issue at your old address ( other than to obtain a default Judgment of course )
- anyway at that point the judgment will be setaside and you will then be able to submit a full defence to their original claim.

Now on this April payment - when did you actually leave the company ?Â*Â* Had you had discussions with the company regarding share options/expenses etc and reasonably believed the April payment was for that or did they pay you an addtional months pay in error and you have simply decided to attribute it to share options etc.Â*Â* ( Is the amount the same as your normal monthly pay? ).

Â*

[whist]

Many thanks for your response.

I included a draft defense saying they sent to wrong address despite being aware of the change of address and also that I believe payment refunded for share options and other things owed to me as a leaver. When I put in the draft defense, I had not seen the claim which stated they overpaid me in February 2014. They didn't.

THE amount they on the claim for February 2014 is£2400 but payment made to me in Feb was significantly less- £247 which can be proven with payslip and bank statement. However, £2400 was paid in April which I thought was for outstanding money they owned me for additional shares that had been disposed of.

I left the company on 13th January 2014. At the time I left I had worked for the company for about 14 years and during that time I was in a number of share schemes - Sharesave and share options if memory serves me well. In addition, I had been contributing to something called Matched Learning as part of Flex benefit. Added to the fact that I also had some unused holidays.

Given the complexity of the various schemes I was part of, I did genuinely believe the payment was for some of the shares. Some shares had to be sold and others transferred to me, some were tax free others had NI and tax deducted at source because they had not been held for long enough etc and given the incompetence they showed previously by overpaying me In January ( I left mid January and they paid me till the end Jan despite being given 6 weeks notice), then deducting it in February from refund from one of the schemes, I just the payment in April was part of what they owed/ The company did not provide a breakdown of what they were paying for and from previous employees, I knew it sometimes takes a while for them to unravel all the financial complexities of being a long time employee.

In summary, given that the date they have given for overpayment is incorrect, am I able to add this to my defense during the set-aside hearing to strengthen my case for set aside?

[whist]

Bump.

[whist]

SO I went to court for the hearing today and it was ADJOURNED. The judge who hadn't read any of the notes beforehand said he wanted to give the claimant a chance to respond to my claim that a) they were notified of my change of address and b) the amount in dispute was salary overpayment.
I argued that surely the second point was for any subsequent submission of the claim but IMHO the judge had little experience in these matters. I argued about fairness given this was giving the claimant a chance to clarify their position while I still had a CCJ hanging over my head.
He ignored didn't seem to acknowledge that the claimant had given the wrong date for overpayment , he just seemed to want to get through the cases quickly.

[jaguarsuk]

Okay, you haven't lost and it's a bit shitty of the judge to adjourn actually. The claim was served on an old address and should have been set aside as of right under CPR Part 13.2 & 13.3.

If at the next hearing the judgement is set aside then you'll be directed to file a defence and so it may well be worth you posting a copy of the Particulars of Claim for us to see exactly what they are claiming.

I assuming monies had and received resulting in unjust enrichment, but best to see for sure.

[whist]

Many thanks for your email. Particulars of claim attached.

The more I think about it and I don't know if this is an argument what having - It is not an overpayment of salary because they claim they paid me for shares that I had already been given. They said they were asked to pay me this by Equiniti ( Shares administrator). I asked them to provide proof of this and they haven't. I maintain this was money owed from the sale of some of my share options or shave save.

I went to the branch yesterday to obtain proof of address change. I hope the judge accepts COA at a branch. I also have emails where I mentioned to solicitors that I have changed address.

Another key thing is that the date stated on the claim is not the date that particular sum was paid to me in any case.

[jaguarsuk]

Many thanks for your email. Particulars of claim attached.

The more I think about it and I don't know if this is an argument what having - It is not an overpayment of salary because they claim they paid me for shares that I had already been given. They said they were asked to pay me this by Equiniti ( Shares administrator). I asked them to provide proof of this and they haven't. I maintain this was money owed from the sale of some of my share options or shave save.

I went to the branch yesterday to obtain proof of address change. I hope the judge accepts COA at a branch. I also have emails where I mentioned to solicitors that I have changed address.

Another key thing is that the date stated on the claim is not the date that particular sum was paid to me in any case.

Let me get this right, you worked for a bank and banked with them. You changed your address with the bank who are your former employer and now them as Claimant have confirmed that you changed address when you say you did and they have issued a claim at an old address? If so, that's going to be magic with the Judge and you want to ask for costs at the next hearing for unreasonable conduct pursuant to CPR part 27.14.

Have the branch stamped and signed the change of address information or provided it in a letter on headed paper with signature?

Basically at the next hearing all that matters is getting the judgement set aside, the actual argument over the debt being owed will take place later when you defend the claim. Have you had a notification of the date of the hearing from the court? If so, what's the date and what does the order say about filing any further Witness Statements/Documents?

In regards that Particulars of Claim there's very little information here, so when you have the next hearing and if the judgement is set aside, you want to ask the judge to order them to file with the court and serve upon you detailed Particulars of Claim compliant with CPR part 16.4 within 14 days and then allow a further 14 days from the date of service upon you for you to file a defence.

If challenged on that request essentially you don't know what their legal argument is from that paragraph, so you can't plead you case and further the overriding objective pursuant to CPR 1.3.

[whist]

Thanks for the response. Yes the branch provided the confirmation on a letter headed paper signed by branch manager. No stamp but it’s signed. The courts haven’t set a date. I went from court to branch in case they later make things difficult.
The hearing was yesterday. I emailed the court today to beg for hearing in first week of May. Will wait and see. Took 4 months to get a hearing last time.

The judge seemed to want to know more about whether or not one of us was telling the truth about owing money, which I argued tna shold be for the hearing.

Regarding particulars of claim, isn’t their legal argument that I owe them for overpayment of salary. Should there be more?

[jaguarsuk]

Thanks for the response. Yes the branch provided the confirmation on a letter headed paper signed by branch manager. No stamp but it’s signed. The courts haven’t set a date. I went from court to branch in case they later make things difficult.
The hearing was yesterday. I emailed the court today to beg for hearing in first week of May. Will wait and see. Took 4 months to get a hearing last time.

The judge seemed to want to know more about whether or not one of us was telling the truth about owing money, which I argued tna shold be for the hearing.

Regarding particulars of claim, isn’t their legal argument that I owe them for overpayment of salary. Should there be more?

Good stuff, hopefully you get a judge who is less of a dick as that letter will play well.

If the judge asked you have every right to argue the point, why they would then adjourn bemuses me?

At the next hearing just ask for it to be set aside as of right under CPR part 13.2 & 13.3 due to you not having the opportunity of defending the claim.

That is their argument, but the legal term would be monies had and received, possibly labouring under a mistake of fact and/or resulting in them unjustly enriching you. You were expecting a payment from sale of shares from them and when they made a payment to you had no reason to believe they were overpaying you. The defence legally to that would be Change of Position if their legal argument is monies had and received. However they don't make an actual legal argument in those Particulars, they are limited due to the space available to them to type and they have an option to send you "Detailed Particulars of Claim" when filing the claim where they can fully expand on what their actual argument is.

If you don't know what their legal argument is you can't use a defence that may be available to you.

They probably haven't filed or have detailed particulars of claim because they didn't send the claim to your old address due to not knowing you'd moved they did it to get a default judgement against you and they have. It's naughty and will be something to remember if you get to this claim being heard, then there being a costs discussion. In the Civil Procedure Rules terms it would be known as abuse of process and it unreasonable conduct, thus opening them up to costs under CPR 27.14.

The next directions of the court are important, as if it allows the filing of a further Witness Statement then we can help you put something together.

[whist]

Fantastic. Thank you very much jaguarsuk. I really appreciate your help. I will post when I get an update from court or claimant.

[whist]

I haven't received anything from either the courts or the claimant. I called the courts last week to ask why I haven't received the instructions /directions the judge gave at the hearing and they said they had a backlog and its not been typed up yet.

Lloyds were supposed to "serve and file evidence of defendants last know address " and "how it is claimed that the payments were overpayments of Salary" by 30th April. What should I do now since the deadline is today ( assuming this does not turn up by courier in the next 4.5hrs)?

[whist]

Bump