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

[benny123]

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).

Hi, the writ was issued in the Liverpool district registry but I am going to the queen bench high court in strand london,

Should i change it to:

"IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION"

[benny123]

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.

sorry to hear about your wife

[benny123]

I think I have to do 2 applications:

1. To the county court to set aside judgement
2. To the high court for an interim stay of execution pending the hearing

Is that correct?

[benny123]

Draft Order as follows:

IN THE XXXXX COUNTY COURT CLAIM NO: XXXXX


BETWEEN:
XXXXX Claimant


and


XXXXX 1^st Defendant

XXXXX 2^nd Defendant


__________________________________________________ ___________________


DRAFT ORDER
__________________________________________________ ___________________


Upon reading the 1^st Defendant’s application dated ……………..

It is ordered that:

1. The judgment dated 18 December 2018 be set aside.

1. The case be listed for a hearing with a time estimate of 2 hours.

1. No order as to costs.

Can anyone let me know if this is okay. Thanks

[benny123]

draft order as follows:

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION



BETWEEN:
XXXXX Claimant


and


XXXXX 1^st Defendant

XXXXX 2^nd Defendant


__________________________________________________ ___________________


DRAFT ORDER
__________________________________________________ ___________________


Upon reading the 1^st Defendant’s application dated ……………..

It is ordered that:

1. The execution of the Writ of Control issued to Alan J Smith an Authorised High Court Enforcement Officer be stayed pending the hearing for Judgment entered to be set aside.

1. No order as to costs.

That's All for everything - please advise. Thanks

[ploddertom]

So, I have done a witness statement and a draft order for the county court as follows:

IN THE XXXXX COUNTY COURT CLAIM NO: XXXXX


BETWEEN:
XXXXX Claimant


and


XXXXX 1^st Defendant

XXXXX 2^nd Defendant


__________________________________________________ ___________________


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



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

1. I make this Witness Statement in support of an application to set aside the judgment (“CCJ”) dated 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 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 dated 20 December 2018 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 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.- You need to explain this more fully - As can be seen on the CCJ letter (Exhibit XXXXX), 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 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 XXXXX, (Exhibit XXXXX).

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

1. I immediately travelled to XXXXX County Court. On my arrival, I was informed that my case had started without me. I requested to enter Court Room 1 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. - Not Required

1. On the break the Usher went to the Judge, and came back saying that the Judge said he will not hear my case because the other party is not present. This is incorrect,He could have been involved in another case. 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. - Not Required

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 XXXXX). It informed me that the complaint had been transferred from XXXXX County Court to XXXXX County Court. XXXXX County Court’s letter said that I need to forward my complaint to the Judicial Conduct Investigations Office. I believe that XXXXX 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. - This is separate to your Set Aside application and should be removed.

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." - probably not required

1. In summary, I have acted promptly after I received the CCJ letter on 2 January 2019. I was unaware of the location of the hearing proceedings, and there are reasonable grounds to defend the original judgment. I respectfully ask the Court to set aside the judgment and set a new hearing date.

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

Signed:
Name:
Date:


And the Draft Order as follows:

IN THE XXXXX COUNTY COURT CLAIM NO: XXXXX


BETWEEN:
XXXXX Claimant


and


XXXXX 1^st Defendant

XXXXX 2^nd Defendant


__________________________________________________ ___________________


DRAFT ORDER
__________________________________________________ ___________________


Upon reading the 1^st Defendant’s application dated ……………..

It is ordered that:

1. The judgment dated 18 December 2018 be set aside.

1. The case be listed for a hearing with a time estimate of 2 hours - chances are you will not get more than about 30 minutes otherwise for this type of length it could be moved to Fast Track where costs could become an issue.

1. No order as to costs.

Can anyone let me know if this is okay. Thanks

I have made some comments above and highlighted some areas of concern. At present there are few grounds listed for Set Aside so do not be disappointed if your application is refused.

[ploddertom]

And for the High court for the interim stay of execution i have done the following witness statement:

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION



BETWEEN:
XXXXX Claimant


and


XXXXX 1^st Defendant

XXXXX 2^nd Defendant


__________________________________________________ ___________________


WITNESS STATEMENT OF XXXXX
FOR INTERIM STAY OF EXECUTION
__________________________________________________ ___________________


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

1. I make this Witness Statement in support of an application for an interim stay of execution of the Writ of Control issued to Alan J Smith an Authorised High Court Enforcement Officer.

1. I have made an application to the XXXXX County Court (Claim No: XXXXX) for the judgment to be set aside.

1. I respectfully ask the Court to stay execution upon such judgment pending the hearing.

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

Signed:
Name:
Date:


and the draft order as follows:

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION



BETWEEN:
XXXXX Claimant


and


XXXXX 1^st Defendant

XXXXX 2^nd Defendant


__________________________________________________ ___________________


DRAFT ORDER
__________________________________________________ ___________________


Upon reading the 1^st Defendant’s application dated ……………..

It is ordered that:

1. The execution of the Writ of Control issued to Alan J Smith an Authorised High Court Enforcement Officer be stayed pending the hearing for Judgment entered to be set aside.

1. No order as to costs.

That's All for everything - please advise. Thanks

Grounds for the Stay may not be sufficient - you need more than just a Set Aside application which could take several months to take place.

[benny123]

I have made some comments above and highlighted some areas of concern. At present there are few grounds listed for Set Aside so do not be disappointed if your application is refused.

Thanks for the reply.

What do you mean that there are

few grounds listed for Set Aside

does that mean that I need to add more grounds?

[benny123]

Grounds for the Stay may not be sufficient - you need more than just a Set Aside application which could take several months to take place.

What about if I change it to

1. I have made an application to the XXXXX County Court (Claim No: XXXXX) for the judgment to be set aside because I was unaware of the location of the hearing proceedings, and there are reasonable grounds to defend the original judgment.

[ploddertom]

What about if I change it to

1. I have made an application to the XXXXX County Court (Claim No: XXXXX) for the judgment to be set aside because I was unaware of the location of the hearing proceedings, and there are reasonable grounds to defend the original judgment.

That is much better, you could also add any of the following if they are relevant:
i - you have no means of paying the fees demanded
ii - pending determination of a Set Aside application - if you think the whole Judgment should be cancelled
iii - pending determination of a Variation Order - if you accept you owe in full or in part and want a Court to order a payment schedule
iv - the Enforcement Agent has taken Control of Goods - car, motorbike, TV etc - to remove & sell at auction whereas the value will not realise a sizeable sum to reduce the debt owing
v - the Enforcement Agent has taken Control of Goods - car, motorbike, TV etc - that are the property of a Third Party who has not been given enough time to put together a Part 85 Claim.
vi - I was not given sufficient time from notification of the CCJ to a visit from the EA to Take Control of Goods
vii - I did not receive a Notice of Enforcement prior to a visit from the EA

You can go on and list loads more but you must be able to back them up.

[ploddertom]

What about if I change it to

1. I have made an application to the XXXXX County Court (Claim No: XXXXX) for the judgment to be set aside because I was unaware of the location of the hearing proceedings, and there are reasonable grounds to defend the original judgment.

You need to list what your grounds are and why they should be taken into account.

[benny123]

I have made some comments above and highlighted some areas of concern. At present there are few grounds listed for Set Aside so do not be disappointed if your application is refused.

Thanks for the reply.

With regards to the county court application for CCJ Set Aside, what do you mean that there are

few grounds listed for Set Aside

Does that mean that I need to add more grounds?
If yes can you give me some examples. Thanks.

[ploddertom]

Thanks for the reply.
With regards to the county court application for CCJ Set Aside, what do you mean that there are
Does that mean that I need to add more grounds?
If yes can you give me some examples. Thanks.

Each application for Set Aside is different and must be treated on its own merits. Most fall down by not being able to describe why they should not have a CCJ. It's no good saying you don't agree, you must list why you don't agree - wrong amount, already paid, no paperwork received and so it goes on. I think you are trying to overcomplicate the issue whereas keeping it simple would be much better. On the N244 Q10 gives you an option of a Witness Statement, a Statement of Case or a narrative that can go in the box provided but can be expanded on to a separate sheet of paper - this is usually for an explanation of Q3. Short and to the point is better. I would also tick No to Q4 and let the Court decide.

[benny123]

Each application for Set Aside is different and must be treated on its own merits. Most fall down by not being able to describe why they should not have a CCJ. It's no good saying you don't agree, you must list why you don't agree - wrong amount, already paid, no paperwork received and so it goes on. I think you are trying to overcomplicate the issue whereas keeping it simple would be much better. On the N244 Q10 gives you an option of a Witness Statement, a Statement of Case or a narrative that can go in the box provided but can be expanded on to a separate sheet of paper - this is usually for an explanation of Q3. Short and to the point is better. I would also tick No to Q4 and let the Court decide.

Thanks,

In Part 3 in am putting:

"An order that the judgment dated 18 December 2018 be set aside. The applicant was unaware of the location of the hearing proceedings, and there are reasonable grounds to defend the original judgment."

Is that Ok?

[ploddertom]

You need to say what those grounds are.