Paying a ccj while awaiting a set aside

[HOYT235]

Hello-

I received a money claim in the post but, as it arrive in an unmarked white envelope and was not expected, it was not opened until about a week after the deadline when I was clearing out junk mail. At which point I replied immediately.

The claim was for libel, which is not allowed in small claims court unless both parties agree and I was not expecting it as no correspondence was sent about resolving the potential money claim before hand.

I was notified that I had a CCJ a few days after I sent the defence and I filed a N244 within 24 hours to request a set aside. It has now been sent to district court for a hearing to be scheduled.

My concern is that this has already demolished my previously pristine credit and you only have 30 days to definitively clear it.

I do not owe on the basis that they cannot pursue it in small claims legally, amongst other deficiencies to how the claim was written, BUT I am worried that, if the court does not set aside on the basis that I was late regardless of whether the claim is valid, I will have to live with the damage.

How strict is the court in upholding default judgements if you can show that you had a solid defence for the claim, were not notified by the claimant before they started proceedings for resolution, but were delinquent in opening your post in a timely manner?

If I pay the claim to clear my credit, would I have a basis to still go through with my set aside and request the money back if successful? (The request for compensation for paying the judgement is not noted in my form as I have already submitted it)

Thank you

[R0b]

Your argument to set aside the claim would fall under 'reasonable prospect of successfully defending the claim' and 'some other good reason'. The court has discretion to set aside in either case but I would be very surprised if a judge would uphold a default judgment issued in the County Court when that court has no jurisdiction to hear such a claim unless both parties agree. In other words, it goes beyond their powers granted to them.

You need to focus on the fact that as soon as you became aware of the default judgment you made an application within 24 hours and so you were prompt. Might also want to focus on the fact that there is a pre-action protocol for defamation claims (you can find it here) which you (presumably) received no letter before action from the claimant in accordance with that protocol and on the facts, you could argue that the claimant failed to comply altogether with the protocols.

Assuming you don't agree to the claim being heard in the County Court you should also ask the court to give summary judgment on the claim and to dismiss it on the basis that the court has no jurisdiction to hear such claims, which must be started in the High Court.

As for clearing the debt now, it would be deemed as an admission so you'd have little recourse. However, if you wish to take that chance, then that's entirely up to you but you can't cry about it if you find that the court dismisses your application on the basis that you've paid the debt and therefore assumed to have admitted responsibility.

Have to say, a little naive of you to think any unexpected letter is junk mail and not open it for at least a week but there we go, expensive lesson learnt.

[jaguarsuk]

If I pay the claim to clear my credit, would I have a basis to still go through with my set aside and request the money back if successful? (The request for compensation for paying the judgement is not noted in my form as I have already submitted it)[/B]

Also to note that paying it doesn't clear your credit the judgement still sits on your credit file for six years from the date it was obtained. The claimant can mark it as settled, but it will still sit there.

[HOYT235]

Your argument to set aside the claim would fall under 'reasonable prospect of successfully defending the claim' and 'some other good reason'. The court has discretion to set aside in either case but I would be very surprised if a judge would uphold a default judgment issued in the County Court when that court has no jurisdiction to hear such a claim unless both parties agree. In other words, it goes beyond their powers granted to them.

You need to focus on the fact that as soon as you became aware of the default judgment you made an application within 24 hours and so you were prompt. Might also want to focus on the fact that there is a pre-action protocol for defamation claims (you can find it here) which you (presumably) received no letter before action from the claimant in accordance with that protocol and on the facts, you could argue that the claimant failed to comply altogether with the protocols.

Assuming you don't agree to the claim being heard in the County Court you should also ask the court to give summary judgment on the claim and to dismiss it on the basis that the court has no jurisdiction to hear such claims, which must be started in the High Court.

As for clearing the debt now, it would be deemed as an admission so you'd have little recourse. However, if you wish to take that chance, then that's entirely up to you but you can't cry about it if you find that the court dismisses your application on the basis that you've paid the debt and therefore assumed to have admitted responsibility.

Have to say, a little naive of you to think any unexpected letter is junk mail and not open it for at least a week but there we go, expensive lesson learnt.

Thank you the above is very helpful.

Unfortunately opening mail has never been a habit of mine since I have no bills that are not on direct debit and online including all government related bills, so until today it's not been a worry I would have had to rationally face. 90% of mail I receive is genuine junk. But no accounting for the unexpected I suppose! Again appreciate the clear response.