Stay of Execution and set aside judgement Draft order for high court

[Guest]

Hi, I am filling in a form N244 to apply for a stay of execution after receiving a notice of enforcement. I have written a witness statement and would like to add a draft Order. Anyone know how that will be written.

Thanks

[ploddertom]

Can you tell us what this is all about?

[Amethyst]

There is some basic info and example documents for a set aside application ( inc draft order) here which may help https://legalbeagles.info/library/ho...-judgment-ccj/ but if you can give us a bit more detail on your exact case we might be able to help further xx

[benny123]

I had a CCJ on the 20th December, got letter through post on 2nd January
On 4th got a notice of enforcement showing that a writ of control was issued on the 3rd January.

the court case was on the 18th December. It was on a county court, but the court moved. I was unaware of thsi and went to the court, but was advised that the hearing had moved. i went to the new location for the hearing. Got there the case had started, usher said i could not go in, then when it finished user spoke to judge who refused to see me saying thet other side was not there yet i was with the solicitor for the other side.

I want to apply for a stay of execution of the write and also to set aside judgement

[benny123]

i have fillied in a N244 form to take to the high court with a witness statement explaining it all, but was told that i would need to also have a draft order.
but i do not know what to put in the draft order

[Amethyst]

Had the Solicitor been in the hearing ?

Have you received a copy of the actual judgment as yet (is that what you received on 2nd?) ? Is it just a forthwith payment within 14 days judgment ?

How much is the judgment and what was the original case about ? and have you spoken with the Claimant at all since the hearing ?

Presumably you'd submitted defence and exchanged witness statements / documents prior to the hearing ?

[Amethyst]

i have fillied in a N244 form to take to the high court with a witness statement explaining it all, but was told that i would need to also have a draft order.
but i do not know what to put in the draft order

Sounds like you'd want something along these lines.


Claim No. XXXXXXXX

BETWEEN:

CLAIMANT’S NAME

Claimant

– and –

Defendant

YOUR NAME

_________________________________

DRAFT ORDER
_________________________________



Upon reading the defendant’s application dated ……………….

It is ordered that:

1. The warrant of control dated 3rd January 2018 be suspended.

2. The judgment dated [insert date of judgment] be set aside.

3. The case be listed for a hearing on the earliest available date with a time estimate of 1 hour.

4. No order as to costs.

[benny123]

thanks for that

one question, would I need to put the county court details on there as i am going to file at the high court tomorrow

[benny123]

Below is my witness statement. is it ok.

IN THE XXXXXX COUNTY COURT CLAIM NO: XXXXXX


BETWEEN:
XXXXXX Claimant


and


XXXXXX 1^st Defendant

XXXXXX 2^nd Defendant


__________________________________________________ ___________________


WITNESS STATEMENT OF XXXXXX
FOR JUDGMENT ENTERED TO BE SET ASIDE
__________________________________________________ ___________________


I, the 1^st Defendant, XXXXXX, will state as follows:

1. I make this Witness Statement in support of an application to set aside the judgment (“CCJ”) dated on 18 December 2018 in favour of the Claimant.

1. The facts and matters set out in this statement are within my own knowledge unless otherwise stated, and I believe them to be true. The facts and matters derived from other sources are true to the best of my knowledge and belief.

INTRODUCTION

1. I wish to apply for the judgment dated on 18 December 2018 against me, the 1^st Defendant to be set aside.

BACKGROUND

1. I first became aware of the CCJ on 2 January 2019 when I received the letter notifying me of the CCJ.

1. I was completely unaware that the location of the hearing had been changed. I believe, that the change happened about 4 days before the hearing but am not sure of when it actually happened. I was unaware of the change in location.

1. As soon as I became aware of the CCJ, I acted promptly in applying for the CCJ to be set aside.

DEFENCE

1. I believe that I have a real prospect of success in defending the claim. The case hinged on fundamental conflicts between the parties and required witnesses to account for their actions. As can be seen on the CCJ letter (Exhibit DD1), judgement was made upon hearing the Solicitor for the Claimant only. I would have been able to put forward and articulate the filed defence. Furthermore, I am a witness and would have been available for cross examination by the Judge in order to determine facts.

REASON I WAS NOT AT THE HEARING

1. I was sent a Notice of Small Claim Hearing dated 24 August 2018 for a hearing on 18 December 2018 at 10:15 AM at the County Court at XXXXXX, (Exhibit DD2).

1. I turned up at the County Court at XXXXXX, on 18 December 2018 and was informed that the case had been moved to XXXXXX County Court.

1. I immediately travelled to XXXXXX County Court. On my arrival, I was informed that my case had started without me. I requested to enter Court Room 1 (Exhibit DD3) where the case was but the Usher said that I was not allowed to enter as the case was going on.

1. I requested the Usher to let the Judge know that I was in the building. I also requested to take a selfie picture of myself at Court Room 1 with a time and date stamp as I could see the Judge and the Claimant’s Solicitor in Court Room 1 through the door window, but was told by the Usher that I was not allowed to do that, so I did not take the photo.

1. On the break the Usher went to the Deputy Judge, and came back saying that the Deputy Judge said he will not hear my case because the other party is not present. This is incorrect, I could see the Solicitor for the Claimant and informed the Usher of that fact. But the Usher just sat down and did not do anything further.

1. At that point, I decided to make an official complaint, there and then. On the 2 January 2019, I received a reply dated 20 December 2018 (Exhibit DD4). It informed me that the complaint had been transferred from XXXXXX County Court to XXXXXX County Court. XXXXXX County Court’s letter said that I need to forward my complaint to the Judicial Conduct Investigations Office. I believe that XXXXXX County Court failed to take reasonable steps to locate my current whereabouts, especially having a case that had been moved to another court with very short notice.

1. Alternative to the above and as already stated in paragraph [5], I was completely unaware that the location of the hearing had been changed and which I was afforded no opportunity to defend the allegations made against me. Dyson LJ acknowledged this in Estate Acquisition and Development Ltd v Wiltshire [2006] EWCA Civ 533 where he observed that:

"A person is under no obligation to make himself amenable to potential claims of which he has no notice. It must follow that, if he fails to attend a hearing in proceedings of which he is unaware, he has a good reason for failing to attend."

1. In summary, I have acted promptly when I found out about the change of location for the hearing. I have acted promptly after I received the CCJ letter on 2 January 2019. The prejudice that I would suffer by not being allowed to defend this claim greatly exceeds the prejudice to the Claimant if the judgment is set aside, and another hearing date set. For these reasons, I respectfully ask the Court to set aside the judgment and set a new hearing date.

STATEMENT OF TRUTH
I XXXXXX, the 1^st Defendant believes that the facts stated in this Witness Statement are true.

Signed:

Name:

Date:

[benny123]

Is anyone able to help me on the above?

[ploddertom]

You say you are going to the High Court - which one & why? You can file at any County Court that also acts as a District Registry of the High Court - usuall inner city Courts are best as they are used to these applications wheeras some of the smaller Courts only see a handful.

[benny123]

i was advised to go to the high court as the writ of control was in issued in Liverpool District Registry

[benny123]

You say you are going to the High Court - which one & why? You can file at any County Court that also acts as a District Registry of the High Court - usuall inner city Courts are best as they are used to these applications wheeras some of the smaller Courts only see a handful.

i was advised to go to the high court, it is not far from where i work so thats ok with me.

Also is my witness statement ok.

[CLL1]

Witness statement seems fine, just change the heading to:

"IN THE HIGH COURT OF JUSTICE
LIVERPOOL DISTRICT REGISTRY"

And file it there.

Send three copies of the application, w/s, and draft order with the fee (unless you're exempt).

[ploddertom]

For me your WS has too much waffle and a fair bit that has nothing to do with anything. I also don't see anywhere you are asking for a Stay against the Writ - this is actually the most important application. The WS as it stands does not need High Court as the original CCJ would have been heard in the County Court,

I don't have a lot of time at the moment as wife has just been diagnosed quite ill earlier this evening.