CCJ at wrong address

[dab1]

Really, really appreciate this - I have split the paragraphs as best as I can.

[dab1]

In their witness statement with respect to costs they write: -

I recently had conduct for the Claimant of a response to an application similar to the present application where the Prestayn County Court applied CPR 13.2(b) on the basis that there was a "good reason to set aside judgment" if the defendant paid the judgment debt of £50 in full and paid the Claimant's costs of the application.

They have attached the General Form Judgement or Order claim number J8QZ021J In the County Court at Prestatyn Justice Centre where the judgment is:-

Before District Judge D L Jones sitting at the County Court at Prestatyn Justice Centre, The Court House, Victoria Road, Prestatyn, LL19 7TE.
Upon hearing the Solicitor for the Claimant and the Defendant in person

IT IS ORDERED that:-

1. Judgment be set aside on condition that the Defendant do pay the claimant the sum of £50 within 14 days.
The judgment shall be automatically set aside upon payment of this amount.

2. The Defendant shall pay the Claimant's costs in the sum of £255.00 within 14 days.

Dated 29 November 2022

[dab1]

In para 16 they say: "16. The Claimant would agree that there is a good reason for the judgment to be set aside, the good reason being that the Defendants have paid the judgment debt in full."

I find this extremely annoying - I did offer them the below and they refused!! If they had agreed to the below offer, it would have saved time and money for me, them and the court!!! And now they are admitting there is a good reason for judgment to be set aside. This is was my offer: -


I am confident that my application will be successful under CPR 13.2 but I am going to make a final attempt to come to an amicable resolution, and an attempt to save my time, your time and indeed the court's time, I would like to offer that your client agrees to a consent order to set aside the CCJ on the basis of costs as follows:

• Pay time barred ground rent: £100
• Court Fee: £108
• Your fees: £100
• Total: £308

[R0b]

So I've had a chance to fully read through the statement and as I suspected, nothing in there that you don't already know. they are trying to distinguish the Rankine v Maggs case on the basis that the facts are entirely different but what they have failed to mention is that the principles in Maggs and in your case are exactly the same.

I've given some pointers below as to how you might address the majority of it mandatory set aside. It's not an exact assessment of the arguemtns you might want to make but bear in mind you only have 30 minutes. The judge may have already have half an idea around the issues such that he wants to you to draw him to the relevant points and references in the court cases or he may think that the claimant is chatting nonsense and decide you are right.

You have to be prepared you might be required to spend time talking for 30 minutes or 5 minutes. I would also suggest you go back through the posts on this thread and the back and forth emails which essentially reiterate what I've said below.

Most important is that you have to assume the judge knows nothing, refer him to the case law, the witness statement and evidence you want to rely on.

I'll make a separate post on CPR 13.3 and also the question of costs but that may be later tonight if not tomorrow.



- - - - - - - - - - - - - - - - - - - -

1. Introduction

This is an application on the defendant to set aside the default judgment on under CPR 13.2 in which the court, if agreed, must set aside the default judgment as of right. Alternatively, you seek to set aside the judgment on under CPR 13.3 at the court's discretion.

The court has two issues to deal with:

a. Was the claim form validly served in accordance with rule 6.9 to the defendant's last known or usual address. If the court has finds that that it was not, the court must set aside the default judgment as of right and has no discretion and the court does not need to consider the second issue.

b. If the claim form was validly served, does the defendant have a reasonable prospect of success or is there some other good reason that it should be set aside.

2. Issue 1: Was there valid service of the claim form

a. CPR 6.9 says that where the defendant has not given an address

b. The Claimant in its witness statement at paragraph 6 also refers to the Maggs case but seeks to argue that it can be distinguished on a number of points:

- The facts are different to Maggs which was not a landlord or tenant case and therefore Maggs should not be applied. However, what the claimant has failed to mention is that the primary issue in both the Maggs case and the present one, is whether there can be valid service of the claim form under CPR 6.9 if the individual has never at the address where the claim form was served. the Court of Appeal in Maggs made it absolutely clear that valid service under CPR 6.9 does not extend to an address where the individual has never lived at. The reasoning was set out in paragraphs 65-70 of the judgment [offer to direct the judge and pick out the relevant points to support your case].

- The Claimant also seeks to argue through several landlord and tenant cases, that it was entitled to service the claim form to an address it found via the land registry which so happened to be the address of the flat. Specifically, the Claimant at paragraph 6(f) refers to a Court of Appeal decision which the court stated that, "as a general rule, unless there is a statutory requirement to the contrary" notices may be served by using the address kept by the land registry. However, this general rule can be distinguished because:

i. The Civil Procedure Rules were introduced by virtue of the Civil Procedure Act 1997, to govern the practice and procedure around civil proceedings, thus the Civil Procedure Rules were born in 1998. Therefore, the statutory requirements made under the CPR via the Civil Procedure Act override the general rule laid down in Oldham Metropolitan Borough Council v Tanna. It appears that the Claimant is arguing that it is not subject to or required to comply with the Civil Procedure Rules around serving the claim form because this is a landlord and tenant dispute but that sort of argument is simply a nonsense.

ii. Maggs is authority for the decision on service at an address that has never been lived at for the purposes of CPR 6.9 whereas the claimant's cases relied on refer to notices served under landlord and tenant legislation. The Claimant has not referenced any case law that seeks to override the Maggs case on this point or find that the decision in Maggs was bad law and should no longer be followed. The simple fact is that there is no authority and there are other recent decisions that have followed the same principles laid down in Maggs.

iii. In each of the landlord and tenant cases the Claimant refers to, all of the defendants have lived at the address where the notices were served at some point or another. That is clearly not the case here where I have never lived at the property in question since it has been rented out since new.

iv. The claimant argues in paragraph 8 of its witness statement that the decision of Obi-Ezekpazu which is an Upper Tier Tribunal case is binding on this court. That is false. The Tribunal system is a separate and independent structure to that of the civil courts and has no binding authority on the courts and the Claimant has failed to specify the basis of that assertion with reference to the relevant legislation. In any event, Court of Appeal decision like the Maggs case are a superior court to the Upper Tribunal and therefore the Court of Appeal decision is binding on this court in the event of a conflict.

d. There are also some notable false statements made by the Claimant, particularly at paragraphs 11-11 of the witness statement because:

i. the Claimant actually had written a letter to my old address on the basis they suspected i did not live at the property in question and that is in of itself grounds for the Claimant to comply with CPR 6.9(3) to CPR 6.9(5).

ii. The Claimant stating that it never had any belief that there was any other residence is simply untrue since they already issued a letter to my old address. furthermore, in an email dated XX XX XXX the claimant confirmed that there was reason to believe that I did not reside at the flat.

you should then summarise the points in a couple of sentences and then ask the judge if he/she has any questions before moving on to the second issue which is the discretionary grounds to set aside under CPR 13.3.

[R0b]

3. Issue 2: Some other good reason to set aside

The witness statement says there was not a draft defence annexed to the application, so you need to take that defence to court if you have it and provide the judge with a copy. I think your main argument for any defence is that the notice for rent/service charges was not properly served on the basis that the Claimant was deemed to have been imputed with knowledge around your address at the time.

I think the court case is Mersey Docks v Kilgour on this point, but the claimant seems to be relying on the Upper Tribunal decision which as previously pointed out in my last post, is not legally binding on the county court as this is a separate legal system. Upper Tribunal decisions are only binding on lower tribunals whereas the County Court is bound by decisions by the High Court < Court of Appeal < Supreme Court. Again, no reference by the Claimant to any of the legislation or case law indicates that Upper Tribunal decisions bind County Courts over High Court decisions. Im not sure what the judge will say or ask but you can say that set aside applications are not intended to be mini trials and so this needs to be further explored at a hearing and determined accordingly on full review of the conflicting decisions.

The alternative good reason for setting aside is that if you had become aware of the rent/service charges you would have paid these immediately as can be seen from the fact you paid when you became aware of the issue. The authority for this is Godwin v Swinborough Council 2001.

4. Costs

If you are successful, you must raise the point about costs otherwise it is determined there will be no order to costs. The usual rule on costs under CPR 45 is that the successful party should be entitled to their costs and there is no reason to deviate from that position especially if you are successful on the mandatory grounds.

You may get the judge ask. curveball question like, well this is a small claim and costs don't apply to the small claims track. The counter arguments to that is:

- This claim is in respect of a default judgment, so it was never allocated to any track and in the absence of that, the usual rule on costs apply.

- This is a Part 23 application i.e. a general application and nothing within CPR 27 (rules on small claims) says that Part 23 are subject to small claims rules.

- In any event, CPR 27 does actually state that you are entitled to costs of your application, attendance for the hearing (capped at something like £95) and travel costs.

If you are not successful, you may not want to raise the question of costs on the basis that no costs are raised then there is generally no order to costs. If the judge decides to raise the issue then you should refer to the point that you did offer to settle way before the application but they said explicitly there was no good reason to set aside and now all of a sudden they now agree there is a good reason. In short, they have wasted everyone's time including the court's and they should not be awarded for that. For that reason the court should award you your costs based on their unreasonableness and unwillingness to settle the matter in accordance with the overriding objective.

Note: You also need to consider if you are successful is whether you want to ask the court to repay the sums you have already paid if the judgment is set aside. Because the claim is reverted back to the defence stage, you do not owe the Claimant any sums as yet since you have not yet been found liable so the court should make an order to revert the parties to the original position i.e. refund you the rent/charges until the determination of that hearing. Again, you need to raise this and don't assume the judge will know what you want otherwise you will not get it back.

If I think I've already mentioned and linked to the majority of the cases in this thread so you need to make sure you download and print them out. Standard practice is to print in full but to save time and costs, you should print the first page which has the case name and details and then the relevant pages you want to rely on (and highlight them for both yours and the courts reference).

I'll post some other cases I think are relevant in case you don't have them later today.

Other general points when at the hearing

Bear in mind you only have 30 minutes for the hearing, assume you have less than that amount of time to say your piece so try to be as succinct as you can and only respond to the key points you need to raise in your arguments. don't get bogged down on irrelevant emails or correspondence as you will waste time. I would practice saying what you want to say in about 20 minutes or so, but you may have longer since the other side won't be attending.

Be prepared for the judge to ask you questions that may not be in the same order as you want to say which is why it is important to have a summary note of the arguments you want to make with references to the case law. If anything you can use what I have posted as a guide and/or your skeleton argument. If the judge asks you something, pause for a moment to think what the question is and don't respond too hastily. If you don't understand the question, say you don't understand and ask for the judge to clarify/re-phrase.

When you are referring to the judge you say "Judge". Thank you Judge, Judge if I may say something on that point, Judge if I may, I wish to raise the question of costs of the hearing etc.

When you refer the Judge to the relevant parts of the evidence, cases or the witness statement don't rush ahead before the judge and blab everything you want to say. If you want to refer the judge, simply say something like "Judge can I refer you to the case of XXX" or "Judge I would like to refer to the witness statement of XXXx at paragraph XXX to support my point"

Allow the judge to get to where you are and if it helps, point them to the relevant page number, paragraph number etc. to guide them. It's common practice to give the judge a few moments to find the place and then they will acknowledge by saying something like "yes" "go ahead" "I've found it now" and that's your cue to move on to what you were going to say.

[dab1]

Getting nervous, but these pointers are reassuring. Thanks

[R0b]

Some relevant cases if you don't have them already with reference to paragraphs that may assist you. Not much more I can do now other than to say good luck, get a good night's sleep and make sure you have all your papers, cases you want to refer to and a summary of your legal arguments. It may be all for nothing if the judge already has an idea what he or she wants to say but better prepared than not.

Just remember to make sure you ask for costs if successful and return of the money you have paid to date as the judgment will be set aside so there money must be returned until final determination.

Also make sure before you leave the room, confirm with the judge what the order will be so you can make a note and for recording purposes as the hearing should be recorded.

If you don't like the outcome, consider asking permission to appeal which is your first chance to persuade the judge why his/her decision was wrong. 9/10 times the judge will refuse but it means the judge has to give reasons and if those reasons are poor, you can make a formal application to appeal and question the judgment.


Tanir v Tanir [2015] EWHC 3363 (QB) (07 December 2015) (bailii.org)

Case confirms that the court must set aside under CPR 13.2 even if there is no merit on the defence as the court does not have discretion.

36. Mr Avis invites me to adopt such an approach here. I decline to do so. The Rules Committee has not yet introduced any new rule so that Rule 13.2 remains in mandatory terms: "the court must set aside a judgment entered under Part 12 if judgment was wrongly entered…" Furthermore, the Claimant here has not made an application to the Court for orders dispensing with service of the claim form or for permission to apply forthwith for summary judgment or for summary judgment on his claim. All that he has done is referred to the possibility of making such claims in his skeleton arguments. In fact, the argument now advanced was touched on only in passing in paragraph 13 of the skeleton argument before the Master and, according to the note of the hearing approved by the Master not referred to at all orally.

37. In my judgment it would be entirely inappropriate to permit the Respondent in circumstances such as these to dispense with the steps contemplated by the Court of Appeal in Nelson in order to fashion a mechanism to get round the apparently mandatory words of Rule 13.2.

Godwin v Swindon Borough Council [2001] EWCA Civ 1478 (10 October 2001) (bailii.org)

Not receiving the claim form with the intention of paying it had you become aware is a good enough reason to set aside under CPR 13.3.

49. ........ 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. There may also be questions of costs. It is obviously open to a defendant to establish by evidence for these purposes the date on which the claim form and particulars of claim were received by him. That is not, in my view, precluded by my interpretation of rule 6.7(1), since the deemed day of service remains that which that rule provides.

Mersey Docks Property Holdings & Ors v Kilgour [2004] EWHC 1638 (TCC) (25 June 2004) (bailii.org)

In relation to CPR 6.9(3), (4) & (5), the claimant is required to have knowledge of the last known address of the defendant. Although this related to last known place of business, it is applicable to an individual. In your case, sending a letter to the same address knowing that the letters were not responded which had initially giving rise to concerns about whether the flat was your last known or usual address is not sufficient to discharge the obligation to take reasonable steps. Claimant should have gone to the address to confirm that you actually lived there, or carry out a more indepth tracing search such as the electoral roll to uncover other address. Failing that, the claimant should have made an application to the court.

62. I have therefore the two alternatives: either to construe "last known place of business" as the last place known to the claimant (the claimant's contention), or alternatively the last known ascertainable place of business or, put another way, the last place of business known generally, which is the defendant's primary contention. The defendant's contention is that these words envisage the situation where the person to be served no longer has a usual place of business and the proceedings must therefore be served on the last known place of business.

63. It seems to me that the proper construction is last known place of business in the sense of last place of business known to the claimant. This is, in itself, a relatively onerous provision, since in order to acquire the requisite knowledge a party must take reasonable steps to find out at the date of service what is the current place of business or the last place from which the party carried on its business. It will be a matter of evidence whether or not a party has discharged the obligation to have the requisite knowledge at the time of service. On balance, this seems to me to be a fairer and more workable test than one which refers to an objective standard of general knowledge or ascertainability.

Truewood Ltd, Re [2020] EWHC 2360 (Ch) (03 September 2020) (bailii.org)

In addition to Mersey Docks, you can also rely on Re, Truewood Ltd around investigation and service of the claim form with emphasis on para. 28

27. Knowledge of the sale of Pollards Hill provided reason for the Liquidator to believe that Mr and Mrs Parekh no longer resided at that address. That being so, in accordance with CPR ule 6.9(3) the Liquidator had to take reasonable steps to ascertain the current residence. A reasonable step was to carry out a Land Registry search to ascertain whether Mr and Mrs Parekh owned another property to which they may have moved and be living as their current residence.

28. The fact that the only property identified by the search was Kingswood Avenue produces the possibility that this was that residence. However, it does not ascertain that as a fact. It only identifies legal ownership of a property and in this case there is the additional feature that it was known to have been owned and tenanted since 2000. That does not mean it might not have become the current residence but it does mean that further inquiries were required if reasonable steps were to be taken: for example, attendance at Kingswood Avenue or written correspondence.

29. In other cases, the failure to take reasonable steps may not have mattered because it can be established by other evidence that the property had become the usual or last known residence at the date of service. However, there is no evidence here to sustain a decision that Mr and Mrs Parekh resided in the settled pattern of his/her life at Kingswood Avenue at the time of purported service on 21 May 2014. The current address was not ascertained.

30. The failure to ascertain residence meant CPR Rule 6.9(4)(b) was engaged. The Liquidator had to consider whether Kingswood Avenue was an alternative place where service might be effected. Plainly, the information from the Land Registry raised that possibility. Taking into consideration the sale of Pollards Hill for a consideration which reasonably appears to be a market value (£536,000), the reasonable assumption that Mr and Mrs Parekh will have moved and the absence of any other address, this was a case where an application for an order for alternative service "must" be made under CPR Rule 6.15. It was not.

31. Even if Kingswood Avenue was not an alternative place where service might be effected, the obligation would have been to serve at Pollards Hill in accordance with CPR Rule 6.9(6). That was not done.

[dab1]

Thanks, will add these cases as well. Will post here how I get on. Again many thanks

[dab1]

The judge awarded judgment under 13.2 and also awarded my application fees costs!

Thank you so much Rob, it was all you, I just produced what you said without understanding half of the legal jargon!!

[R0b]

Excellent news, so what's the next step?

Did you confirm what kind of order the judge is going to make and what about the money you have paid? assuming it goes back to the defence stage, it would seem you already have a defence that the sums have already been paid if there is no order that the claimant pay you back the sums already paid pending the outcome of the hearing.

Any other comments the judge made about the claimant and their witness statement? A summary of the hearing and your experience would be useful for others to know.

[dab1]

We arrived on time and had to wait perhaps half hour. The judge was going through our paperwork as we sat down. He asked if I had made the CCJ payment, and I confirmed yes, and added after I had received the CCJ papers late due to it being sent to the wrong address.

The judge then continued going through the paperwork. I said I have skeleton argument that I wanted to give the Judge, at first he appeared reluctant to take it, saying he has not read it. I said I only received the claimaint's response only 2 days ago. He then took it, and said where is the paper for the Maggs case. I presented that to him, which as, you said that first page of the case, and then another page of just the paragraphs of interest. This satsified him. I also gave him the IVANCHEV case which referred to the Maggs case, for strength.

The judge must have spent about 15 minutes reading and then asked what I have to say. I started by reading my skeleton argument, he stopped me after a few sentences, and I can't remember what he said.

He then said that there is a case being referenced that is missing. I said I have all the cases here, but it turns out it was the Claimaints who was missing the case, which I did not have. He spent a good 5 minutes or more looking for that case reference, searching his reference books as well. It appears he did not find that case and I don't remember which case he was looking for.

Finally he said he will strike out the CCJ on grounds of 13.2 and he asked me what I want. I said the Claimaints should pay me what I have paid so that the judgement is put back to the beginning. He said he can't do what already has been paid. I then said at least the Claimaints should pay my N244 application court fees and this he readily agreed. I could not get myself to say I need payment for my time spent. In my skeleton argument, in the brief introduction I pointed out that my focus was to remove my CCJ as I have an excellent credit rating, and so, thus when the judge told me his decision, at that moment it was ok for me to have the CCJ removed and at the very least pay for my court fees.

I think the judge spent about 40 minutes, in which I spoke for maybe 5 minutes in total, and the judge was reading and searching the rest of the time.

[dab1]

O dear, what's going on!! Yesterday I received by email an N244 application by the Claimant.

It is dated 24/05/2023 and on the N244 application they have ticked for a remote hearing. They are asking 'An order that the application to set aside judgment be re-heard'. Very odd that they have cited my old address as the service address even though they know now that I no longer live at that address.

Below is what application says: -

Grounds for application

1. District Judge Smart made an Order dated 26 April ("Order") to set aside the judgment entered against the Defendants on 24 August 2022
2. The Claimant received a copy of the Order on 19 May 2022 (This could be a mistake, should be 2023 I think)
3. The Claimant made submissions dated 24 April 2023 in advance of the hearing of the application to set aside judgment. The Order does not refer to the Judge having read those submissions
4. The Court should have taken the Claimant's submissions into account (CPR 27.9)
5. To the extent that the Court has omitted to take the Claimant's submissions into account before making the Order the Claimant's position has been prejudiced, and the Claimant has been denied a fair hearing.
6. The issue of the service of a claim form on a defendant who has never resided at a property where the defendant is the leaseholder of that property is an important point of law for the Claimant and its business.
7. The Claimant asks that the application to set aside be re-heard have regard to CPR 27(9) as the Order does not recite that the Claimant's submissions were taken into account and the Claimant perceives that there has been an injustice contrary to the overriding objective, for the reasons set out in the Witness Statement of (name of Solicitor)

And the Witness Statement is:

1. On 24 April 2023 I sent the email now produced to me and marked “xxx” to the Court, with Submissions on the Defendant's application and my first Witness Statement in this case both attached to that email;
2. and I sent the email now produced to me and marked 'xxx' to the Defendants, with the same attachments
3. On 25 April 2023, I received a "read notification" of my email from the Court, now produced to me and marked 'xxx'
4. I acknowledge that CPR 27.9 requires a party who does not attend a final hearing 7 days' notice of non-attendance between the hearing date and I apologise to the Court that I had not given the full notice before the hearing but I had though from the 'read notification' that the Submissions would be placed before the Court, as I had requested.
5. While not specifically allocated to the small claims track, the claim was a small claim (CPR 26.6(1)(a)(i))
6. In any event, the overriding objective (CPR1.1(1)) is that the case is dealt with justly, which includes ensuring that the parties are on an equal footing and can be given their best evidence as well as saving expense.

So the hearing was on the 26th April. They sent an email on the 24th April, which was "read notification" by the court on the 25th April and by their own admissions, they are allowed 7 days notice before the hearing. Will the Court allow this? How can this be saving expense when I took time and effort which cost me a day at work to attend the hearing and they didn't attend, now they want another hearing? Will I have to attend another hearing?

[R0b]

Did the judge say in any way that the defendant's submissions were taken into account or having read the file or anything to that effect? Your previous post suggested that was the case and if that is true, I can't see how they have any leg to stand on, especially having not complied with the correct notices according to the CPR. It's a bit lame to suggest they should be entitled to rely on the read notification and they shouldn't be entitled to benefit from their own breach.

Most likely you will need to have a hearing on this unless the court dismisses the case of its own choice. I'm not sure this is the proper route anyway as it reads like this is an appeal. They need evidence to support their claim that the judge didn't take into account their submissions and that would be to order a transcript. Nothing suggests they have a copy of that.

I can give you some similar pointers to what I did before but you really need to do your homework and prepare as you got lucky and it is a realistic possibility that you will be asked questions by the judge on what you think about their application and whether it should be set aside.

[dab1]

I have had a closer look at their late submission that they made 2 days before the hearing, and it is simply a repitition of what they had already argued in the email communication chain that I had included in my evidence pack.

I think the Judge went through my evidence pack. What I remember at the hearing, is the Judge asking for evidence of what sounded to me like Godwin case, which I had but he didn't want that, but thinking about it now, it must be Golding v Martin [2022] which the claimants have referred to (because the judge said the claimant has made a reference to that case). So if the Judge was searching for Golding, it means he has considered what the claimants had written - regardless of whether their late submission was considered or not (because they had mentioned it in the email communications to me, as well as in their late submission).

Their re-appeal to me does not make sense. They appear to be saying in para 6 of their Grounds for Application, that the meaning of 'last known address' as in CPR 6.5(6) is subject to the claimant/defendant relationship. With my understanding, reading CPR 6.5 (6), the 'last known address' is independent of any such relationship. Am I correct? I mean, service of a form to an address is service of a form no matter who you are.

[R0b]

I would tend to agree with you and the onus is on the claimant to provide evidence as part of its application to support its arguments that no consideration was given. Have they provided any evidence at all or are those 6 points in the witness statement really the extent of what they are seeking to use to overturn the judgment?