CCJ in absence - Help needed

[echat11]

Thanks, good spot. could you remove the name from your quoted message as well please. What do you mean in regard to statement of truth? I have copied from other templates from the forum, how should I change it?

Claim No: REDACTED

Background:
I. I was not properly notified about the claim or judgment until 20 July 2023 when I checked my credit report. Prior to this date, I had no knowledge of the proceedings against me.
II. I have been a resident at my permanent address in Belfast since 1990. However, I never received any claim forms or notice of the County Court Judgment (CCJ) at this address. The claimant was well aware of my correct address, as it had been the address they had on file.

Deficiencies in Service:
I. The Defendant contends that the claim form was improperly served, and he was not afforded the opportunity to defend the claim. The Defendant never received any claim forms or notice of the CCJ at his actual Belfast address, which has been his permanent residential address since 1990. The Claimant was aware of this address.
II. The Defendant submits that the judgment appears to have been improperly served based on CPR Part 6. The Claimant failed to take appropriate steps to determine the Defendant's current address, despite the timeline and absence of response to their letters on a new address they claimed to have traced, which should have prompted reasonable suspicion about his continued residence at the property.
III. The Defendant refers to CPR 6.9, which requires the Claimant to take reasonable steps to ascertain the Defendant's address for service. The Claimant's failure to fulfill this obligation resulted in deficient service, rendering the default judgment irregular.
IV. The Defendant received a generic email from the claimant in October 2022, which did not provide adequate information about the alleged debt and did not constitute proper notice of the claim.

Good Reason to Set Aside Judgment:
I. The Defendant believes there is good reason to set aside the judgment under CPR 13.3(1)(b). He acted promptly upon discovering the judgment and would have likely defended the claim if he had received the claim form. The case of Godwin v Swindon Borough Council [2001] EWCA Civ 1478 establishes that the court has the discretion to set aside or vary a judgment entered in default if the defendant had no knowledge of the claim before judgment was entered. The circumstances of the Defendant's case warrant the exercise of the court's discretion in his favour.

Request for Costs:
I. The Defendant kindly requests that the claimant be ordered to pay the sum of £275 as wasted costs occasioned in bringing this application to the court. These costs include necessary expenses incurred in challenging the default judgment.

Conclusion:
I. In conclusion, the Defendant respectfully requests that the court sets aside the default judgment entered against him in Claim No. REDACTED. He denies the claimant's allegations and asserts that the claim form was improperly served, thereby depriving him of the opportunity to defend the claim adequately. He also seeks an order for the claimant to pay the wasted costs incurred in bringing this application.
II. The Defendant has attached a completed N244 application form and kindly requests that the court considers his application at the earliest convenience. He would be grateful for any directions the court may provide regarding the filing of his defence should the default judgment be set aside.

Statement of Truth

The Defendant believes that the facts stated in this Defence are true.

Date............................................
Signed.........................................

Statement of Truth, read post 13.

[moonsafari]

Statement of Truth read post 13.

Thanks, so this is for draft defence,
therefore change the witness statement to Defence Statement like so?

I believe that the facts stated in this Defence Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

[echat11]

Thanks, so this is for draft defence,
therefore change the witness statement to Defence Statement like so?

I believe that the facts stated in this Defence Statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Yes.

[R0b]

Responding to this thread per the OP's request, apologies its a bit of a lengthy one but I thought I would properly explain than give a half answer.

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From what I've read, there appears to be a number of issues here so I will try to address them one by one.

1. The Subject Access Request
Link are talking absolute rubbish stating that they cannot provide any documents unless you make a subject access request. First of all a SAR can be made verbally as well as in writing and Link would have to act on it. Secondly, if they already verified you over the phone to discuss the account then that would be sufficient for them to provide you with the documentation that you are asking for since they have already identified you. They're just being awkward and whoever you have spoken to clearly doesn't know what they're talking about.

Anyway, you've fired off the SAR now so unless you made a specific request for documentation, they will need to comply with your request. Did you explain to them in your SAR how you wish to receive the information? Bear in mind that if they have an address in Hampshire and you haven't told them that you no longer reside there, I will half expect them to send your paperwork to that address. So you need to be clear that (a) you no longer reside at the Hampshire address and your details need to be updated on their file to reflect your current residence (b) If you currently reside in the Netherlands, you are entitled to ask for the request to be satisfied by electronic means e.g. email as the GDPR allows for this. Usually, I would recommend that you ask them to supply information is packaged up in a password protected PDF file and the password sent on a separate email for security reasons.

2. Setting aside the default judgment
I am not convinced the response you received from the law firm that the default judgment was valid simply because a trace was carried out, though I would be curious what that trace states because I am doubtful the trace would have only shown the Hampshire address and so therefore how they determined that that address was the one to serve the claim form.

Rule 6.9 is very specific where a defendant has not given an address for service of the claim form, think of it as a staged process.

(i) The starting point is that the claim form should be served at the last known or usual address.

(ii) If the Claimant has reason to believe that the defendant does not reside at the last known or usual address, then they must take steps to ascertain the current place of residence.

(iii) If after taking reasonable steps to ascertain the current residence but the claimant is unsuccessful, then the claimant must consider if there is an alternative address or method of serving the claim form e.g. email, social media, newspaper, text message etc. and if there is, then the claimant should make an application to the court for permission to serve using that method or address.

(iv) Only if the claimant has exhausted all of the above options can the claimant then serve the claim form at the last known or usual address.

In a nutshell, it looks like the law firm carried out a trace search, found an address and then decided to serve the claim form at that address. The reason why I underlined the word 'ascertain' in (ii) above is because in order to ascertain someone living at that address means you have to verify they actually live there, not make an assumption because you have an alternative address. If that means rocking up to the address or knocking on neighbours doors to see if they know or have seen you about the area or sending out an investigator then so be it.

Even if you gave them the benefit of the doubt that they couldn't ascertain you living at the Hampshire address, they would have to then consider an alternative place or method. Their email states that they tried a telephone number and an email address so both of those are alternative options and therefore why did they not make an application to the court for permission to serve the claim form via those methods? You could go a little further and then say well, giving the benefit of doubt in that they somehow determined that the telephone or email was not a reasonable method of serving the claim form, they would then have to serve the claim form at the last known or usual address. That last known address would have been your address in Northern Ireland and I believe there are additional requirements such as filing a certificate or service before judgment can be obtained but I would have to check.

In all of the above points, I think there are good grounds for you to argue that service of the claim form at your Hampshire address was invalid and the consequence of that is the default judgment obtained by the claimant is irregular. In other words default judgment shouldn't have been given due to a procedural error by the claimant. When a claim form is issued and served to a valid address in accordance with rule 6.9, the clock starts to run for either filing a defence within 14 days or acknowledging the claim and then extending your time by a further 14 days, totalling 28 days to file a defence and if the time expires and you fail to file a defence, the claimant can obtain default judgment.

Your argument is that the clock never started to run because the claim form was not validly served to the correct address because the claimant failed to follow the process under rule 6.9 as I described above, so until the claim form is properly served, the clock doesn't start and because the clock never started, they weren't entitled to obtain default judgment because you can only do so when the clock expires - catch my drift? Procedure errors must be set aside as of right and the court has no discretion under CPR 13.2.

I would always advocate that you should supply a draft defence so that you can rely on CPR 13.3 which is setting aside at the court's discretion since it increases your chances of getting the judgment set aside since the bar is not that high as long as you can show the defence is reasonable and has a realistic chance of success.

To help you along, I've provided some template examples for a set aside application, though some of them may be a bit out of date and need tweaking to reflect your current situation. Feel free to use or take what you want from them but please don't just do a copy and paste job as you need to tailor them. You should also have a draft order attached to your application as well but if you do not have that I can provide an example just let me know.

Otherwise I have said all I need to say and if you need help or feedback on what you plan on submitting, post up here making sure your personal information that can identify you is redacted including your court number.

[moonsafari]

Responding to this thread per the OP's request, apologies its a bit of a lengthy one but I thought I would properly explain than give a half answer.

-----

From what I've read, there appears to be a number of issues here so I will try to address them one by one.

1. The Subject Access Request
Link are talking absolute rubbish stating that they cannot provide any documents unless you make a subject access request. First of all a SAR can be made verbally as well as in writing and Link would have to act on it. Secondly, if they already verified you over the phone to discuss the account then that would be sufficient for them to provide you with the documentation that you are asking for since they have already identified you. They're just being awkward and whoever you have spoken to clearly doesn't know what they're talking about.

Anyway, you've fired off the SAR now so unless you made a specific request for documentation, they will need to comply with your request. Did you explain to them in your SAR how you wish to receive the information? Bear in mind that if they have an address in Hampshire and you haven't told them that you no longer reside there, I will half expect them to send your paperwork to that address. So you need to be clear that (a) you no longer reside at the Hampshire address and your details need to be updated on their file to reflect your current residence (b) If you currently reside in the Netherlands, you are entitled to ask for the request to be satisfied by electronic means e.g. email as the GDPR allows for this. Usually, I would recommend that you ask them to supply information is packaged up in a password protected PDF file and the password sent on a separate email for security reasons.

2. Setting aside the default judgment
I am not convinced the response you received from the law firm that the default judgment was valid simply because a trace was carried out, though I would be curious what that trace states because I am doubtful the trace would have only shown the Hampshire address and so therefore how they determined that that address was the one to serve the claim form.

Rule 6.9 is very specific where a defendant has not given an address for service of the claim form, think of it as a staged process.

(i) The starting point is that the claim form should be served at the last known or usual address.

(ii) If the Claimant has reason to believe that the defendant does not reside at the last known or usual address, then they must take steps to ascertain the current place of residence.

(iii) If after taking reasonable steps to ascertain the current residence but the claimant is unsuccessful, then the claimant must consider if there is an alternative address or method of serving the claim form e.g. email, social media, newspaper, text message etc. and if there is, then the claimant should make an application to the court for permission to serve using that method or address.

(iv) Only if the claimant has exhausted all of the above options can the claimant then serve the claim form at the last known or usual address.

In a nutshell, it looks like the law firm carried out a trace search, found an address and then decided to serve the claim form at that address. The reason why I underlined the word 'ascertain' in (ii) above is because in order to ascertain someone living at that address means you have to verify they actually live there, not make an assumption because you have an alternative address. If that means rocking up to the address or knocking on neighbours doors to see if they know or have seen you about the area or sending out an investigator then so be it.

Even if you gave them the benefit of the doubt that they couldn't ascertain you living at the Hampshire address, they would have to then consider an alternative place or method. Their email states that they tried a telephone number and an email address so both of those are alternative options and therefore why did they not make an application to the court for permission to serve the claim form via those methods? You could go a little further and then say well, giving the benefit of doubt in that they somehow determined that the telephone or email was not a reasonable method of serving the claim form, they would then have to serve the claim form at the last known or usual address. That last known address would have been your address in Northern Ireland and I believe there are additional requirements such as filing a certificate or service before judgment can be obtained but I would have to check.

In all of the above points, I think there are good grounds for you to argue that service of the claim form at your Hampshire address was invalid and the consequence of that is the default judgment obtained by the claimant is irregular. In other words default judgment shouldn't have been given due to a procedural error by the claimant. When a claim form is issued and served to a valid address in accordance with rule 6.9, the clock starts to run for either filing a defence within 14 days or acknowledging the claim and then extending your time by a further 14 days, totalling 28 days to file a defence and if the time expires and you fail to file a defence, the claimant can obtain default judgment.

Your argument is that the clock never started to run because the claim form was not validly served to the correct address because the claimant failed to follow the process under rule 6.9 as I described above, so until the claim form is properly served, the clock doesn't start and because the clock never started, they weren't entitled to obtain default judgment because you can only do so when the clock expires - catch my drift? Procedure errors must be set aside as of right and the court has no discretion under CPR 13.2.

I would always advocate that you should supply a draft defence so that you can rely on CPR 13.3 which is setting aside at the court's discretion since it increases your chances of getting the judgment set aside since the bar is not that high as long as you can show the defence is reasonable and has a realistic chance of success.

To help you along, I've provided some template examples for a set aside application, though some of them may be a bit out of date and need tweaking to reflect your current situation. Feel free to use or take what you want from them but please don't just do a copy and paste job as you need to tailor them. You should also have a draft order attached to your application as well but if you do not have that I can provide an example just let me know.

Otherwise I have said all I need to say and if you need help or feedback on what you plan on submitting, post up here making sure your personal information that can identify you is redacted including your court number.

I wanted to express my heartfelt gratitude for your reply. To be honest, I never anticipated receiving such an extraordinary response. The level of attention to detail you provided was truly incredible. Words cannot adequately convey how much your support and guidance meant to me during this incredibly stressful period.

I submiited the documents 2 week ago, and I'm awaiting a response. Rest assured, I will keep you updated on any developments that arise.

Once again, thank you from the bottom of my heart for your help. Your expertise and generosity have made a significant impact, and I am truly grateful.

[moonsafari]

Hello everyone, good news. I finally have a date.

I have been given a date in Wales in mid-February and when calling the court to ask for the next steps, they asked me to send a defence if not already done so. I have provided them with a draft defence (attached and redacted/edited) but not sure if I need to formally submit a final defence.

Could someone possibly kindly review the documents I have attached? I have a feeling I have included sections and evidence that should have been included in my draft defence, into my witness statement.
1. Do you feel I am missing anything that should be included, or any advice for the hearing in terms of my arguments and how I conduct myself? The hearing will be in Wales, so I will be attending virtually.
2. I presume a good outcome would be to get it set aside, "reset the clock" and then deal with it, whether it is paying it off or asking for a monthly plan? Will I be asked this in court or will they ask me if I acknowledge the debt?
3. Does it matter that I do not live in Wales or England?

Any help you can provide would be greatly appreciated.

In your gratitude,

[R0b]

Hi

Does the court order stipulated when these documents should be filed?

[moonsafari]

Hi

Does the court order stipulated when these documents should be filed?

Hi R0b,

The witnesses statement was submitted in August. The draft defence was already submitted but the court have said I can submit again if I need to.

[R0b]

Sorry I'm a little confused.

Unless the court order states you must file a defence or a witness statement or anything else, you don't need to do anything especially if you have already filed a witness statement or defence. If there is new evidence or material you wish to add to the existing defence or witness statement then you can update the existing versions and then file with the court and provide a copy on the other side giving the explanation that they are an amended draft defence and witness statement based on new evidence that has come to light.

Otherwise, just take 3 copies of the witness statement and defence on the day of the hearing in case the court or the other side doesn't have a copy for whatever reason.

[moonsafari]

Sorry I'm a little confused.

Unless the court order states you must file a defence or a witness statement or anything else, you don't need to do anything especially if you have already filed a witness statement or defence. If there is new evidence or material you wish to add to the existing defence or witness statement then you can update the existing versions and then file with the court and provide a copy on the other side giving the explanation that they are an amended draft defence and witness statement based on new evidence that has come to light.

Otherwise, just take 3 copies of the witness statement and defence on the day of the hearing in case the court or the other side doesn't have a copy for whatever reason.

Thanks, I think I'm just a little apprehensive, and I'm just trying to determine whether I have done enough. If there is anything that I can do to better prepare as ithe outcome is quite life changing and consequentlial.

[moonsafari]

Hello everyone,

Just a quick update and a request for further guidance following my set-aside hearing.

Thanks to the wealth of advice I've received from this community, the court has set aside the default judgment against me. I’m deeply appreciative of all the support—it's been invaluable.

The claimant chose not to contest and did not attend the hearing. To refresh your memory, the original debt was around £1,500, but with interest and costs, the set-aside judgment totaled an additional £500-600.

The set-aside process also resulted in me incurring at least £275 for the N244 application. The court has indicated that the next hearing will address these costs along with other relevant expenses.

One thing I'm unsure about is whether I can file a defense based on jurisdiction. The previous proceedings were in Wales and England, yet I am a resident of Northern Ireland, and the claim forms were mistakenly sent to an old English address. Could this oversight warrant a jurisdictional challenge, suggesting that any claim should be pursued where the defendant—myself—is resident?

While the debt appears to be valid and not statute-barred, jurisdiction might be the only point of contention I have. My goal is to avoid a CCJ, which could seriously impact my future, particularly my aspirations of home ownership.

Up to now, the claimant has been somewhat unresponsive to settlement discussions and has cautioned me about further costs if I continued with the set-aside application.

Financially, settling the full amount would be difficult, but I'm willing to stretch my resources to prevent a CCJ.

I'm currently awaiting the official documentation from the hearing. In the meantime, could anyone offer advice on how best to proceed, especially regarding the jurisdictional issue and potential settlement strategies?

Thank you once again.

Best wishes,

[DE DOGS]

Hello everyone,

Just a quick update and a request for further guidance following my set-aside hearing.

Thanks to the wealth of advice I've received from this community, the court has set aside the default judgment against me. I’m deeply appreciative of all the support—it's been invaluable.

The claimant chose not to contest and did not attend the hearing. To refresh your memory, the original debt was around £1,500, but with interest and costs, the set-aside judgment totaled an additional £500-600.

The set-aside process also resulted in me incurring at least £275 for the N244 application. The court has indicated that the next hearing will address these costs along with other relevant expenses.

One thing I'm unsure about is whether I can file a defense based on jurisdiction. The previous proceedings were in Wales and England, yet I am a resident of Northern Ireland, and the claim forms were mistakenly sent to an old English address. Could this oversight warrant a jurisdictional challenge, suggesting that any claim should be pursued where the defendant—myself—is resident?

While the debt appears to be valid and not statute-barred, jurisdiction might be the only point of contention I have. My goal is to avoid a CCJ, which could seriously impact my future, particularly my aspirations of home ownership.

Up to now, the claimant has been somewhat unresponsive to settlement discussions and has cautioned me about further costs if I continued with the set-aside application.

Financially, settling the full amount would be difficult, but I'm willing to stretch my resources to prevent a CCJ.

I'm currently awaiting the official documentation from the hearing. In the meantime, could anyone offer advice on how best to proceed, especially regarding the jurisdictional issue and potential settlement strategies?

Thank you once again.

Best wishes,

Sit on your hands.as advised,dont worry to much,you have jumped the first hurdle,

[moonsafari]

Update everyone,

The creditor has sent me an email stating that will accept my offer of £750 to settle an outstanding balance of £1,598. The court is expecting my defence to be filled in less than 2 weeks.

I have drafted up this letter. Is this sufficient? Also are there any steps or forms I need to complete to inform the court of this settlement and to end this case? Thanks.

Their letter (redacted)

We are writing to follow up on your recent conversation with our representative.

We have requested all the relevant documents from the associated bank, and we are currently awaiting their return. There is no exact date for when these will be available.

A request to set aside the County Court Judgment and any related charges has also been made.

The current balance on the account is £1598.85. Based on the updated balance, we are prepared to accept the offer of £750 to settle this account.

To settle the account, payment can be made through our secure automated payment system by calling [Payment Contact Number] (Option 1), on our website at [Website URL], or by bank transfer with the following details:

Bank: [Bank Name]
Sort Code: [Sort Code]
Bank Account Number: [Account Number]
Reference: [Reference Number]

Upon receipt of the cleared funds, we will consider the account closed with no additional monies owed and will update the credit file to reflect that the account has been partially settled.

The payment should be made by [Payment Due Date]. This offer is contingent on the priority repayments such as rent, mortgage, and utilities being current, and that the settlement offer will not impact the ability to make any priority repayments. If this is not the case, please contact us immediately.


My draft letter

RE: Settlement Offer and Confirmation of CCJ Set Aside for Account Number: [Account Number]

Dear *****,

I am writing to formalize our settlement agreement concerning the above-referenced account and to ensure accurate records regarding the County Court Judgment (CCJ) associated with this matter. Following the hearing on the 19th of February, the CCJ was set aside. As you have informally accepted my offer of a one-time payment of £750 in full and final settlement of the account, I wish to outline the terms of our agreement and confirm the actions to be taken regarding the CCJ.

The terms of the settlement are as follows:

The payment of £750 is accepted as full and final settlement of the account. Upon receipt of this payment, you agree that no further claims for any additional sums related to this account will be pursued.

You will discontinue any current or future court actions related to this debt immediately upon receipt of the agreed payment.

You will provide written confirmation that the CCJ has been set aside and ensure that this is accurately reflected in both your records and mine. This includes notifying any credit reference agencies that the CCJ is no longer valid to ensure that my credit file is correctly updated.

You will inform the court without delay that the debt has been settled, especially considering next proceedings are due by 19th of March.

This offer is made on the understanding that the above terms are agreed upon, and the payment will be made by 08/03/24.

Please reply and confirm that you agree to the above terms so that I can proceed with the payment.

Yours sincerely,