Setting aside a CCJ - wrong address

**luxardo** · 8th January 2020, 07:11:AM

This is highly contradictory.

You state that your current address is in another country and then state that you "have evidence of applying to be placed on the electoral roll under my current address" ?

You can't claim that "had I known about the debt, I would have had a real prospect of successfully defending the claim?"
And then add "Personally, I have no issue with accepting the debt" and in fact actually paying it anyway ?

If you can prove the claim was sent to the wrong address you can apply to have it set aside.
You probably won't even need any proof if there is no objection.
As you have acted promptly and as you have satisfied the judgement I can't see the claimant objecting so it should be granted.

Simply ask that the judgement be set aside, nothing else.

**Gaia** · 8th January 2020, 14:11:PM

Hi, thank you for your reply.

The address was in another county not country.
When I said"Personally, I have no issue with accepting the debt", this was for the the information of readers of my post on this forum, and will not be mentioned in any witness statement.

If anyone could read over my witness statement and offer any comments, it would be greatly appreciated. My main questions are:
1. Is it reasonable for me to argue to argue that I had a real prospect of successfully defending the claim brought against me as well as there is some other could reason for the CCJ to be set aside?

2. I wanted to talk about my situation as a PhD student who is pursuing a career in academia and research - as this has led me to move about a lot in recent years and also means that I will likely need to rely on credit temporarily to fund the rest of my course and/or support future home moves to continue the career pursuit. I have outlined this is paragraph 13. My question is, are my points reasonable and are they placed appropriately?

Thank you!!

[Start of witness statement]

I…of….will state as follows:

1. I am a PhD student, studying full-time at …I make this Witness Statement in support of an application to set aside the default judgment (“CCJ”) entered on 05-Nov-2019 in favour of the Claimant …

2. The facts and matters set out in this statement are within my own knowledge unless otherwise stated, and I believe them to be true. Where I refer to information supplied by others, the source of the information is identified; the facts and matters derived from other sources are true to the best of my knowledge and belief.

3. There is now produced and shown to me a paginated bundle of relevant documents marked … which I will refer to in the course of this statement in the format " / page number”

INTRODUCTION
4. I wish to apply for the judgment in default entered on 04-NOV-2019 against the Defendant to be set aside on the basis that pursuant to CPR 13.3(1)(a):

(i) the Defendant has a real prospect of successfully defending the claim brought against it; and

(ii) there is some other good reason why the CCJ should be set aside.

BACKGROUND
5. I first became aware of the CCJ on 23-Dec-2019 after I accessed my credit rating file provided by my bank (Halifax) through an Internet website, “Halifax Credit Checker” (https://www.halifaxcreditchecker.co.uk) (…shows a printed version of the CCJ as it appears on my credit file, which was via the Halifax Credit Checker website). The CCJ was recorded on 05-Nov-2019 with a case number….. The CCJ was issued to a previous address at….

6. After first becoming aware of the CCJ and knowing that the deadline to pay the debt in full within one month to have it cancelled, I sought free legal advice. Due to the Christmas holiday period, I had to wait to receive this advice until 03-JAN-20. I have since acted promptly in making this application to have the CCJ set aside.

7. I was completely unaware that CLAIMANT had issued proceedings against me in relation to this debt of £184.90, which I understand was purchased from LENDER in DEC-16. I acquired the debt over six years ago, when I took out a short-term loan for the sum of £200, in August 2013 (…shows the original loan agreement). Prior to the debt being purchased by CLAIMANT, I had negotiated a payment plan with LENDER (… shows an email, dated Oct-2015, from LENDER confirming the agreed payment plan). Although I did not realise at the time, I believe LENDER stopped taking my ‘Continuous Payment Authority’ debit card payments after CLAIMANT purchased the debt in DEC-16. Since that time, I have moved home across the UK on numerous occasions to pursue a career in academia and social science research (see paragraph ?? for more information on this). As I did not receive the application notice from CLAIMANT or their solicitors, I was unable to defend and/or satisfy it immediately and avoid a CCJ being recorded against my name.

8. I made a payment in full (for the sum of £300) to CLAIMAMNT on 06-Jan-2019 as instructed in the order. The amount was paid by debit card ending… which is registered under my name and current address… The payment was managed …on behalf of CLAIMANT. At the time of writing this witness statement, I have not received any documentation from … that confirms my payment; they have instructed me that it will three working days for the payment to process and any confirmation is provided to me. Nonetheless, I have an Authorisation Code – … – from which a payment can be traced if necessary. Further, by the time this application has been processed by the court.....will have provided me (and possibly the court) with proof of my payment in full, which I will then sent to the court via email (…).

THERE IS SOME OTHER GOOD REASON
9. The address…is stated on the claim form but this is not my current place of residence. I lived at this property from May-2017 until September-2017. Since my home move, I have updated my records to reflect my change of address which included: amending my financial account records and notifying my local council and updating the electoral roll. I currently reside…where I have lived since July 2019 (…. shows a signed co-tenancy agreement that I signed with my current housemate prior to moving to this address; …. shows an email confirmation of my application to be listed on the Council electoral roll, which I made after I moved to …).

10. It is assumed that several letters would have been to my address prior to the issue of proceedings, and it is therefore reasonable to suggest that given my lack of response to those letters, [CLAIMANT] ought to have taken reasonable steps in ascertaining my last known address pursuant to rule 6.9 of the CPR. If [CLAIMANT] had done this, then it would have realised that I no longer resided at [OLD ADDRESS]. For these reasons, I believe that [CLAIMANT] failed to take reasonable steps to locate my current whereabouts and accordingly, the claim form was not validly served.

11. Alternative to the above and as already stated in paragraph [number], I received no notice of the claim form and which I was afforded no opportunity to defend the allegations made against me. Dyson LJ acknowledged this inEstate 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."

12. Furthermore, had I become aware of the claim, it was more likely than not that I would have defended the claim and/or settled the debt, but I was not given this chance. I refer to the Court of Appeal caseGodwin v Swindon Borough Council[2001] EWCA Civ 1478 where LJ May said the following:

“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. The defendant, for instance, may have no defence to the claim, but may justifiably want to have the judgment set aside on the basis that, had he known about the claim, he would have satisfied it immediately without having an embarrassing judgment recorded against him.

13. Since acquiring the debt in 2013, during a period of financial and personal adversity, I have been pursuing a career in social science research and academia. This career goal, combined with my limited financial resources, has meant that I have had to move homes on numerous occasions across various locations in the United Kingdom to pursue the best opportunities available to me. The sub-paragraphs below (10.i. to 10.v.) briefly outline my home moves and academic endeavours, including my current situation. Moreover, they explain that my current funding source is ceasing entirely in September 2021, which will potentially leave me in a financially precarious situation; and that I will likely need to continue to move homes within the next 24 months in order to pursue the right academic and career opportunities. Accordingly, the CCJ listed on my credit file is likely to negate my ability to raise the funds that I will need to support my future academic and social research studies/career.

13.i. In 2016, I completed a three-year, full time bachelor’s degree in…at….
13.ii. In September 2016 I moved from…to….. to live and work full-time as a secondary school teacher assistant. In May 2017, I moved to … – the address at which the CCJ has been issued.
13.iii. From September 2017 to September 2018 I moved to….to undertake a 12-month, full-time taught master’s degree course at ….. I was awarded a Scholarship ….(£3000 towards course fee tuition) – based on my financial constraints and academic merit (… shows confirmation of this award) – which enabled me to pay my course fees. For the duration of my time in Leeds I lived at … (… shows the signed tenancy agreement).
13.iv. In September 2018, I moved from …. to … – where I currently reside – after I was awarded a three-year doctoral studentship with …to study full-time for a PhD in at the … (MIMS/?? shows confirmation of my studentship award;…shows confirmation of my full-time study at…with the start date of OCT-2018). Due to the high demand and rental prices in the area, I had to live in a number of temporary homes until settling into my own private shared tenancy property at … in July 2019. I lived in private hostels in OCT-18 before becoming a lodger for two months at an address in …. Following this, I stayed with a host family for one month in …. In JAN-2019 I moved to an address at …. as a lodger in a family home (please see….for proof of electoral registration at this address), where I lived until I moved to….where I currently reside.
13.v. My studentship covers my course tuition fees and provides me with a modest income of around £1200 per month. However, the payments will cease entirely in September 2021 and I have no savings to fall back on when this happens. Thus, in order to be able to continue my pursuit of a career in academia and social research, it is likely that I will need to temporarily rely on credit. For example, it is possible that my PhD will take up to four (rather than the three I have funding for) years to complete, in which case I will need to fund my living expenses from September 2021 to as late as September 2022. This might mean I remain in current home at …. and work to cover my course fees for the year as well as my living expenses (my rent and household bills amount to exactly £600 per month and I also have credit card payments to keep up with, totalling around £100 per month, whilst also finalising my PhD thesis); or it might mean have to move to somewhere with cheaper rent. Further, once my PhD finishes, it is likely I will need to leave CURRENT COUNTY to pursue post doctorate research or any other paid social research opportunities. A CCJ on my record, therefore, will be of great detriment to my career progress.

14. This is the first time a CCJ has been issued against me. Since I acquired the debt in 2013 – during a period of financial hardship – I have endeavoured to keep my finances and credit file in good order. As such, up until this CCJ was issued against me, therefore, my credit rating was nascent. I have been able to acquire a credit accounts and meet the repayments on time (see…and…for my latest statements for these credit accounts).

15. In summary, I have acted promptly when I found out about the judgment. I have explained why I did not respond to the claim issued and I believe that service of the claim form was invalidly served. Furthermore, I also have a reasonable prospect of successfully defending the claim as set out in the draft defence. The prejudice that I would suffer by not being allowed to defend this claim greatly exceeds the prejudice to [CLAIMANT] if the judgment is set aside. For these reasons, I respectfully ask the Court to set aside the judgment under CPR Part 13.

I believe that the facts in this witness statement are true.

[End of witness statement]

**R0b** · 8th January 2020, 14:40:PM

Yesterday, I paid the claimant in full and discharged my liability.

That's your biggest problem that you will need to overcome. What you are trying to do is effectively clean up your credit file and that is not what the set aside application is intended to be used for. By paying the Claimant and discharging your liability you are deemed to have accepted liability for the debt and therefore satisfied the matter. In this type of case, you can apply to the court for a certificate of satisfaction at a cost of £15 and then notify the Registry Trust who will amend the record accordingly.

There is some evidence to suggest that some courts have agreed to set aside the default judgment after the debt has been settled but is very much on a court by court basis. However, the Regulations governing the register of judgments does say that a debt paid in full is deemed satisfied and the CCBC Code of Practice also says:

"Applications [to set aside judgment] should contain legitimate grounds and should not simply serve to remove the defendant's name from the Register of Judgments, Orders and Fines. Such applications will not be granted and will be referred to the district judge."

Personally I think your whole witness statement as written will be very risky on the basis that you are in effect admitting to be liable for the debt and then going on to pay it without first making an application to set aside. If you changed addresses and updated your records then you could have had a reason to say that there were mandatory grounds (CPR 13.2) to set aside the judgment on the basis of the Claimant's failure to carry out reasonable checks to ascertain your current place of residence. A mandatory set aside means the court must set aside the judgment and there is no discretion, nor does it require you to have a reasonable prospect of defending the claim.

Who did you see to get free legal advice? If they advised you to pay the debt and make an application to set aside the the judgment then that is very dangerous advice and wrong in my opinion.*

**Gaia** · 8th January 2020, 14:56:PM

Hi Rob,

Thank you for your reply.

Yes, I was advised to pay the debt asap, seeing as my defense was that I would have satisfied the issue immediately if I had received the claim/judgement notice.*

Obviously, I cannot change the fact that I have paid the amount in full, so I guess I would just like now to construct the best possible application to have the judgement set aside given my current circumstances.*

Any suggestions would be greatly appreciated.

Best wishes

**Gaia** · 8th January 2020, 15:05:PM

I suppose I wish to know if I should apply for the judgment in default entered on 04-NOV-2019 against the Defendant to be set aside on the basis that:

1).*pursuant to CPR 13.3(1)(a) and CPR 13.3(1)(a):

(i) the Defendant has a real prospect of successfully defending the claim brought against it; and

(ii) there is some other good reason why the CCJ should be set aside.

OR

2)*pursuant to CPR 13.3(1)(a)

(ii) there is some other good reason why the CCJ should be set aside.
*

**luxardo** · 9th January 2020, 02:52:AM

"Who did you see to get free legal advice? If they advised you to pay the debt and make an application to set aside the the judgment then that is very dangerous advice and wrong in my opinion"

On the contrary I think it's good advice. It shows prompt action, ability and willingness to settle.

I think you have a good case to have it set aside on the grounds :-

1) the claim was sent to the wrong address
2) had it been sent to the correct address you would have paid it (as proven by the fact you did as soon as you learnt of it)
3) You acted promptly upon learning of the judgement

In fact I reckon it will be granted as long as positive proof that you could not have received the original claim at the wrong address is shown.

**R0b** · 9th January 2020, 14:08:PM

"Who did you see to get free legal advice? If they advised you to pay the debt and make an application to set aside the the judgment then that is very dangerous advice and wrong in my opinion"
On the contrary I think it's good advice. It shows prompt action, ability and willingness to settle.

I think we will have to agree to disagree on this point, it's very poor advice if not negligent in my view. The problem is that this scenario isn't what the rules of setting aside a default judgment was intended to do. It's not a get out of jail free card simply because you never received the claim form.

Here's a non-exhaustive list of reasons why what you are doing might not work

The court might question it was necessary to make the payment first if you already intended to submit an application. If you were worried about enforcement of the debt then you could have requested that a stay of enforcement pending the outcome of the set aside application.
The payment in full prior to setting aside weakens the position that the judgment should be set aside. You accept that the money is due and payable which, in the eyes of the law will be deemed an admission of liability for the debt and by making an application, it might be considered an abuse of process.
The court would have to consider the impact of the monies paid if the judgment is set aside. For example, does the Claimant then have to hand the money back to the debtor and since a successful set aside does not dismiss the claim, rather it restarts the position where it was last left i.e. for the debtor to file a defence, where is the if the debt is already admitted? That creates an anomaly in the whole set aside process
Setting aside is also at odds with the s.11(3) of the The Register of Judgments, Orders and Fines Regulations 2005 which says that "Where it comes to the attention of the appropriate officer that the debt has been satisfied more than one month from the date of the judgment, that officer shall send a request to the Registrar to endorse the entry as to the satisfaction of the debt." Nothing in those Regulations suggest you can remove a CCJ after it being paid more than one month from the date of judgment.
Should the claimant oppose the application you then have a further uphill struggle in arguing your case successfully because they will no doubt use a variation of the above points to say why it shouldn't be removed.
The witness statement says that you would have paid the debt had you become aware of the claim, but what evidence do you have to show the court you would have done so? Your witness statement points out that you have limited financial resources and it's not clear if you knew about the debt back in 2013; if you did then any argument about paying it back had you become aware of the claim form would be dead in the water.

In my view, what you should have done is contact the Claimant first and asked if they would consent to setting aside the judgment, if not you will issue an application. The reality is that they probably would have agreed than go to court. Having done the opposite, you now leave yourself open to the Court's mercy and if a judge with enough savvy about the default judgment process picks up your application, you could have your application dismissed.

Ultimately, being in this position you have nothing to lose by making the application, but you should be prepared for any questions that might be raised either by the judge or the Claimant who has every right to oppose your application. To say there there is a good case as suggested by Luxardo is a bit of a stretch, it's more like pot luck.

**luxardo** · 10th January 2020, 05:01:AM

Good argument. The bit about what happens to the money already paid is particularly compelling.
Please let us know the result of this application, it's very interesting.

Setting aside a CCJ - wrong address

Setting aside a CCJ - wrong address

Comment

Comment

Comment

Comment

Comment

Comment

Comment

Comment

Announcement

Court Claim ?