Lowell CCJ Advice - Help please!

[echat11]

Ask Overdale's to include the existing documents, but let them know you might want to add to the bundle later.

[R0b]

I'm afraid that I don't know how much I can answer as I feel there's more to this and only the OP knows what happened at the hearing, but based on the summary and the appeal I have set out some thoughts below. I am not going to describe and explain every reference to the CPR as I don't have the time and its up to the OP to do his own research on that and make his own arguments based on what happened. I don't mind giving guidance and answering questions, but I'm not doing the leg work.

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

1. Costs Order. It sounds like Overdales are not happy that the judge ordered costs in the case i.e. costs to be awarded depending on final outcome of the trial hearing. Bizarrely, they have suggested that the general rule is that the defendant pays the other side's costs when a default judgment is set aside under CPR 13.3 on discretionary grounds. In my opinion that is absolutely untrue as there is no general rule to that effect.

Under Part 44 of the CPR, the court has discretion as to whether costs are awarded or not, and this has been acknowledged by Overdales. If the court decides to make an award on costs, then the general rule is that the successful party should be awarded their costs (CPR 44.2(a)). I have no idea how or why Overdales thinks that it is a general rule that the defendant should pay the other side's costs where the default judgment is set aside on discretionary grounds, but I suspect they may be referring to an old rule in the CPR that is no longer there. There was a rule under CPR 70.6 that suggested where the default judgment is set aside under 13.3, the usual order would be for the defendant to pay the other sides costs but that rule no longer exists in the CPR. I should also emphasis that it stated that is the usual rule but not the only one. The court still retains discretion under Part 44.

When deciding what order to make, the court should take into account the factors set out in CPR 44.2(4). Now, in this case, I can only imagine that the reason why the judge made a costs in the case order, was because he couldn't determine the blameworthiness of either side. For example, it was reasonable for you to bring the set aside application because of the name discrepancy and it was also reasonable for Lowell to defend this on the information they had to hand. Therefore, the fairest order would be a costs in the case order.

I think that is a very sensible order to make and whoever is successful at the end, will be entitled to their costs. I would argue that there is no reason to disturb that order given the wide discretion that the court has in making such an order. I would also be challenging Overdales in providing evidence with reference to the CPR that it says the general rule is that costs should be paid out by the defendant. They may refer to CPR 70.6 as above but I would counter that by saying it no longer exists in the latest version of the CPR.

2. The Denton Test

I would agree with Overdales that when it comes to set aside applications that are granted under CPR 13.3, the court must then consider the Denton principles. This was confirmed by the Court of Appeal in August of this year in the case of FXF v English Karate Federation Ltd & Anr [2023] EWCA Civ 891.

For the OP's benefit, there is a 3 stage test to be met:

(a) Was there a serious or significant breach or failure to comply with a rule, practice direction or order of the court?
(b) Why did the breach occur and was there a good enough reason for the breach?
(c) In evaluating all of the circumstances of the case, should the court make an order to set aside the default judgment?

Overdales also make reference to the OP failing to make a prompt application to set aside the default judgment, which they are referring to CPR 13.2(2). However, promptness is not the sole factor in evaluating whether a judgment should be set aside but the promptness should be taking into account with all various other factors.

OP has not done himself any favours with promptness. First post was made in May and then not posted again until July, so clearly this wasn't top of the OP's agenda. Adding to the problem was the fact the OP decided to go down the complain route rather than submitting the application as soon as possible. Unless there was some very good reason why there was a delay between the first post and the second post on here and why it was necessary to go down the complaint route first (which is wrong on all levels for set aside applications in my view), the OP is more than likely going to lose the promptness argument. The only way I could see the OP overcoming this would be if he was stuck under a house full of rubble due to an earthquake or was in hospital that made him bed bound and was physically unable to submit the set aside application, and there would need to be evidence to that effect. I'm being over the top here but that's the point I'm trying to make, especially when the OP had the time to make complaints instead.

3. Adding the OP as a second defendant and setting aside the original CCJ

The difficulty for the court is that the OP has raised an issue about the identity of the defendant and whether it should be attributed to him. Overdales suggest that the OP does not have any standing but I would disagree simply because the CCJ has been registered against his name, correctly or incorrectly which is yet to be determined. If the judge thought that this might be a case of fraud or something else, I can understand why he has decided to add the OP as a second defendant and retain the original defendant name until it is determined whether or not the OP and the original defendant are the same person or not.

I would be arguing that it is well established in case law that a set aside application is not intended to be a mini-trial, rather it is intended to be a short hearing to determine if there are sufficient grounds to set aside the judgment. Requiring the judge to make a decision at this stage to determine if the original defendant is the same as the OP would likely have to lead to more extensive arguments, evidence, case law etc. which then brings it within the boundaries of a trial rather than a short hearing. As previously mentioned, it sounds as if the judge is unsure of the current status which is presumably why he decided to add the OP to the claim and then that issue to be determined at trial.

Arguably, part of the concern here is that if the court allowed the CCJ to stand and be registered against the OP who is possible an entirely different individual that Lowell's are claiming under, that would then interfere with the OPs rights under data protection laws which requires all information reported about that individual, particularly to credit reference agencies, needs to be accurate and up to date (Principle 4 of the GDPR). If that CCJ is not correctly registered then it should be removed.

Overdales' other argument saying that even if it was determined that there are two different people involved, the original CCJ should not be set aside, well that goes back to my point above about data protection laws about information being recorded and up to date because if judgment is re-entered again, then it's likely that judgment will pop up on the OP's credit file until such time the trial is resolved - it's a catch 22 situation.

Given that we are talking about someone's identity and ensuring any CCJ (if awarded) is correctly registered against the right person, I think the sensible option for the court is to use its powers to make an order refraining Lowell from entering default judgment for either defendant until it is determined whether or not the OP and the original defendant are the same person or not.

4. Other thoughts
I think I said this in an earlier post but this is a right royal mess and I think the OP has made things more complicated than it needed to be. The OP should know if he has any idea about this account and whether he agreed to it or not. If he didn't, there is a possible identity theft issue which would be a valid defence to this claim.

From reading the thread, it would appear that the original defendant is one and the same as the OP given that the OP has gone into the bank and made some changes to what looks like the link to him under the original defendant name and also what Lowell are relying on. Personally, I would have simply asked the court to set aside the application and if it did, substituted the name of the original defendant to the correct name of the OP which would have been the easiest solution - that's assuming the OP accepts the account has been set up in his name. If the OP does not accept this, then part of the issue at the hearing is for the OP to argue that the original defendant is in fact a real person separate to the OP rather than it being a mistake of using the wrong first/middle names. I'm not convinced that the original defendant is a separate living individual but this is the OP's dispute and entirely up to him how he wants to run it.

There has also been too much faffing on with sending complaints. When you discover a default judgment, you have to act promptly. Do some initial investigation but don't hang around for answers and get the application in as soon as possible. You can always obtain a minimal amount of information by contacting the court to get a copy of the particulars of claim if in doubt. Complaints to the creditor and regulated bodies can be done in parallel to the set aside application but they should under no circumstances take priority. If you fail to make an application within 30 days then you are more than likely not being prompt with your application and you run the risk that your application is refused because you took too long.

[soursocrates]

Hi Rob - thank you for your considered response. It is appreciated, i also acknowledge that this isn't an easy situation to wrap your head around.

Regarding your point regarding promptness of my application, as mentioned, this was a point raised by Lowell in their argument. This was brought up also in the hearing, and the judge in response said he values and assesses cases based on their merits more than anything, and the time that elapsed between my discovery and my submission of my application was not totally unreasonable due to needing time for additional discovery. Whether or not he took my status as a lay-person without any representation into account, i do not know.

I did make a further without prejudice offer of a payment plan yesterday to clear this balance in full without admitting any culpability, but lowell has not responded to me yet.


In the interest of time, i'm going to reply to lowell now as its just before the midday deadline that they gave for response to their trial bundle email with the point that Echat made. Thanks all

[R0b]

Hi Soursocrates, I completely understand and as a lay person, the rules around court proceedings are not easy to understand. It sounds like the judge has given some consideration to promptness but equally, there are authorities that say you do not have to wait around for all the answers you need before bringing an application.

If you asked for information from their legal representatives about the claim and they were being difficult, then that is a fair argument to make when submitting your application and it puts the other side in the cross hairs of a costs order for being unreasonable in their conduct, particularly against a litigant in person in trying to take advantage.

So the judge has given some reasons for the promptness issue and in that case you need to stress in the appeal that the response from the judge was within his wide discretion and the band of reasonable responses in light of the situation, and particularly some allowance given for the fact you are a lay person who is not familiar with the rules.

The CPR does say that you can add to the bundle of documents but you should do so as soon as reasonably possible and in any event no less than 7 days before the appeal hearing date.

I would also be asking Lowell for a copy of a list of documents they intend to include in the bundle from their perspective and provide a copy submitted to the court. I'd be interested if they intend to include a transcript of the hearing because it sounds like one is needed given that their appeal rests on some of the decision making made by the judge - for small claims cases they are not necessary but since this never reached the small claims track, I would say that one should be included.

[soursocrates]

Thanks Rob - i understand that ignorance is not an excuse in and of itself, naturally with the benefit of hindsight i would have made this application far sooner. I can only hope that the judge takes a similar stance as my previous judge and treats my application on its merits and not purely on elapsed time, but this is of course unknowable.

Yes, i will be compiling my evidences for inclusion in the bundle over the coming days and will look to submit it to the court and Lowell no less than 7 days before the hearing on the 19th December.

Thanks for the documentation point, i will ask them what they want to submit. Regarding a transcript of the previous hearing, is this something that I can ask for & should i ask for that? I am not sure if one even existed as there wasn't anyone in the room apart from the judge myself and the lowell rep taking minutes? unless the proceedings were recorded without my knowledge and transcribed that way or something?

I'm also not sure why at this point Lowell would not have responded to my payment plan offer that I sent yesterday, surely that would be exactly what they want? because going to court for this is a risk for them yet surely still...?

[soursocrates]

Had this response just now:

"I’m sorry not to have been able to reply sooner to your last email yesterday.

Our client will be happy in principle to settle the matter as you propose, but with two caveats:

First, appeal costs have already been incurred, as well as those of attendance at the last hearing.

As you are aware, permission has now been granted to appeal on all 8 points raised in the appellant notice, and we therefore believe that there is a high chance our client will ultimately be entitled to recover those costs too. In considering any settlement at this stage, our client will limit those claimed, to only the actual fees paid to the Court fort the appeal, and to its advocate for the last hearing – though that would increase if the appeal also proceeds to a hearing.

Secondly, any Order or directions made by the Court, must be complied with until and unless they are set aside or varied, so the bundle will in any case need to be prepared and filed, and any agreement we reach will need to be approved by the Court, in bringing the matter to a close.

We will therefore prepare and file the bundle, noting your comments about that, and revert to you later with a proposed Consent Order in terms our client would be prepared to accept. This is likely to involve your consent to the appeal, but that the matter be stayed on payment terms reflecting the debt balance plus the additional costs incurred, at the instalment rate you suggest, no judgment being re-entered provided those instalments are paid.

Any preliminary indication that this would be acceptable to you, without prejudice and subject to agreement of detail, would assist in bringing the matter to a conclusion before further costs are incurred."

What are your thoughts guys?

[echat11]

It's really up to you. You wouldn't be where you are had they done their 'Due Diligence' on the accounts correctly. I don't think it's as 'black & white' as they are making out in their email, their victory isn't assured. I would go back to them with your own proposals on costs to settle the matter. The Judge used 'common sense' and found a solution to a difficult scenario that Overdales / Creditor created, now they are saying everyone got it wrong, except themselves, especially Overdales.

[soursocrates]

Hi guys - i hope you are well.

Had this message from Lowell regarding the case for the courts:

"Dear Sir/Madam, (November 30th)

Pursuant to the Order of HHJ Venn dated 16 November, we attach a bundle compliant with CPR 52B PD. The Respondent is copied in by way of service at the email address provided for the purpose in his Application in the Court below.

Unfortunately in the very short time between receipt of the Order, and the bundle deadline, it has not proved possible to agree content with the Respondent in detail, but we note in any event that he is directed to file a skeleton argument later, so that the Court may wish us to file an amended bundle incorporating that. The Court may therefore wish to view this as a preliminary bundle to be amended later if the Respondent wishes to include other permissible documents.

Our own view for the Appellant, is that no documents beyond those required by paragraph 6.4(1) of the Practice Direction are strictly required or relevant, but the Court may be assisted by sight of the Respondent’s previous Skeleton Argument, his Application Form which was before the Judge below, and one of the Appellant’s Witness Statements, purely in understanding the issues which were placed before the Judge below. (For clarity, the Respondent, as Applicant at the hearing below, filed no separate Witness Statement, his evidence being given on the N244 Form so it is included.)

Our view is that, the appeal being confined to points of law and process, with no appeal from any finding of fact, evidential documents are not otherwise to the appeal, so that exhibits to them, and the entirety of the Appellant’s first Witness Statement, which were extensive and of no relevance to the appeal, are excluded.

We add that, while the Respondent has already has already been served with an unsealed copy of the Appellant notice, no sealed copy has yet been received so we are unable to comply with paragraph 6.1 of the Practice Direction, pending receipt.

Finally, this matter being allocated to the Small Claims track and no order having been made requiring us to obtain and include transcripts, we have not done so. We do not believe that these are necessary, it appears that Her Honour, in granting permission without ordering them, agreed, and in view of the early date set for the appeal hearing, it is unlikely that they could be obtained and approved in time.

Yours faithfully,
"

Is there anything that I need to consider for the above here?

Also I strangely received a general form of judgment or order form in the post yesterday dated 23rd October, related to the judgment made from the judge from the first hearing. I thought it was strange that i had not received one, but i thought that was the case due to an appeal having been lodged. But it says the following:

"
Upon hearing the solicitors agent for the claimant and the defendant in person

It is ordered that

1. Upon discretionary grounds the judgment in default is set aside
2. Mr xxx xx of xxx address born on xx 19xx in xx holding passport number xx is joined as a 2nd defendant.
3. The statement of Mr xx xx shall stand as his defence
4. Directions Questionnaires are dispensed with.
5. The matter be listed for trial with a time estimate of 2 hours.
7. Permission to appeal is refused
8. Costs in the case"

So the questions i have here is why would it have taken so long for this to arrive to me when the subsequent appeal general order forms submitted and dated after this hearing game weeks ago?

Also on point 7 it is said that Permission to appeal is refused, if that is the case and stated on the judgment beforehand, why are we in an appeals process with a hearing on the 19th? Any clarification or insight into any of the above would definitely be appreciated guys. Thank you.

[soursocrates]

Hey guys,

Sorry, in addition we had this exchange regarding my settlement offer of £100 in monthly installments prior that email Lowell sent:

"Dear Mr xx, (November 28th)

I’m sorry not to have been able to reply sooner to your last email yesterday.

Our client will be happy in principle to settle the matter as you propose, but with two caveats:

First, appeal costs have already been incurred, as well as those of attendance at the last hearing.

As you are aware, permission has now been granted to appeal on all 8 points raised in the appellant notice, and we therefore believe that there is a high chance our client will ultimately be entitled to recover those costs too. In considering any settlement at this stage, our client will limit those claimed, to only the actual fees paid to the Court fort the appeal, and to its advocate for the last hearing – though that would increase if the appeal also proceeds to a hearing.

Secondly, any Order or directions made by the Court, must be complied with until and unless they are set aside or varied, so the bundle will in any case need to be prepared and filed, and any agreement we reach will need to be approved by the Court, in bringing the matter to a close.

We will therefore prepare and file the bundle, noting your comments about that, and revert to you later with a proposed Consent Order in terms our client would be prepared to accept. This is likely to involve your consent to the appeal, but that the matter be stayed on payment terms reflecting the debt balance plus the additional costs incurred, at the instalment rate you suggest, no judgment being re-entered provided those instalments are paid.

Any preliminary indication that this would be acceptable to you, without prejudice and subject to agreement of detail, would assist in bringing the matter to a conclusion before further costs are incurred.

Yours sincerely,"

I then sent the following message which incorporated some of what R0b mentioned for his points as a counter/rebuttal:


"Dear Mr Lyons, (November 29th)

I hope this finds you well. In response to your email regarding my offer, thank you for coming back to me. When considering the facts of the case, It is most definitely not as cut and dry as you would make it appear as I would outline in the below points:

1. Costs Order.

In your appeal you have made it apparent that you are not happy that the judge ordered costs in the case i.e. costs to be awarded depending on the final outcome of the trial hearing. Strangely, you have implied that the general rule is that the defendant pays the other side's costs when a default judgment is set aside under CPR 13.3 on discretionary grounds. In my opinion that is absolutely untrue as there is no general rule or precedent to that effect.


Under Part 44 of the CPR, the court has discretion as to whether costs are awarded or not, and this has been acknowledged by Overdales. If the court decides to make an award on costs, then the general rule is that the successful party should be awarded their costs (CPR 44.2(a)). I have no idea how or why you think that it is a general rule that the defendant should pay the other side's costs where the default judgment is set aside on discretionary grounds, but whether or not you may be referring to an old rule in the CPR that is no longer there, I do not know.

There was a rule under CPR 70.6 that suggested where the default judgment is set aside under 13.3, the usual order would be for the defendant to pay the other side's costs but that rule no longer exists in the CPR to my knowledge.

I should also emphasize that it stated that is the usual rule but not the only one. The court still retains discretion under Part 44. When deciding what order to make, the court should take into account the factors set out in CPR 44.2(4). Now, in our case here, the reason why the judge made a costs in the case order, was because he couldn't fully determine the blameworthiness of either side when presented with the necessary information. For example, it was reasonable for myself to bring the set aside application because of the name discrepancy alone and it was also reasonable for yourselves to defend this on the information you had to hand. Therefore, the fairest order would be a costs in the case order. I think that is a very sensible order to make and whoever is successful at the end, will be entitled to their costs.

I would argue that there is no reason to disturb that order given the wide discretion that the court has in making such an order. I would also challenge yourselves to provide evidence with reference to the CPR that it says the general rule is that costs should be paid out by the defendant. They may refer to CPR 70.6 as above but I would counter that by saying it no longer exists in the latest version of the CPR.


2. The Denton Test

I may agree with you that when it comes to set aside applications that are granted under CPR 13.3, the court must then consider the Denton principles. This was confirmed by the Court of Appeal in August of this year in the case of FXF v English Karate Federation Ltd & Anr [2023] EWCA Civ 891. But this does not take into account the entire key principles in this.

Your company makes reference to myself failing to make a prompt application to set aside the default judgment, which you refer to CPR 13.2(2). However, promptness is not the sole factor in evaluating whether a judgment should be set aside but the promptness should be taken into account with all various other factors.

As the judge mentioned in the hearing, the merit of the case in and of itself is a key and important factor when weighing up any case, and he believes that my case in and of itself, has more than sufficient merit to be brought forward. He in addition stated that the time that elapsed was not totally unreasonable given the time needed on my end for discovery.


3. Adding myself 'Michael J o r d a n' as a second defendant and setting aside the original CCJ

The difficulty for the court is that I have raised a legitimate issue about the identity of the defendant and whether it should be attributed to myself. You suggest that I do not have any standing in this, but I would disagree simply because the CCJ has been registered against my name, correctly or incorrectly, which is yet to be determined in court. If the judge thought that this might be a case of fraud as the judge also mentioned in proceedings (as did I) or something else, I understand why he has decided to add myself as a second defendant and retain the original defendant name until it is determined whether or not the myself (Michael j o r d a n) and the original defendant are the same person or not.

I argue that it is well established in case law that a set aside application is not intended to be a mini-trial, rather it is intended to be a short hearing to determine if there are sufficient grounds to set aside the judgment. Requiring the judge to make a decision at this stage to determine if Jeffrey J o r d a n is the same person as myself, Michael j o r d a n, would likely have to lead to more extensive arguments, evidence, case law etc. which then brings it within the boundaries of a trial rather than a short hearing. As previously mentioned, the judge is unsure of the current status which is why he decided to add myself to the claim and then that issue to be determined at trial.

Arguably, part of the concern here is that if the court allowed the CCJ to stand and be registered against myself who is quite possibly (as i would argue) an entirely different individual that Lowell's are claiming under (or a victim of fraud), that would then interfere with my rights under data protection laws which requires all information reported about that individual, particularly to credit reference agencies, needs to be accurate and up to date (Principle 4 of the GDPR). If that CCJ is not correctly registered then it should be removed.

Your other argument stating that even if it was determined that there are two different people involved, the original CCJ should not be set aside, goes back to my point above about data protection laws about information being recorded and up to date because if judgment is re-entered again, then it's likely that judgment will appear up on my/Michael J o r d a n's credit file until such time the trial is resolved - it's a catch 22 situation.

Given that we are talking about someone's identity and ensuring any CCJ (if awarded) is correctly registered against the right person, I think the sensible option for the court is to use its powers to make an order refraining Lowell from entering default judgment for either defendant until it is determined whether or not myself (Michael J o r d a n) and the original defendant (Jeffrey J o r d a n) are the same person or not.


Considering a victory for Lowell/Overdales is far less than assured due to the factors raised above, I believe a settlement offer & a stay of proceedings is incredibly fair when all the facts of the matter are observed. I have also made a much more careful and considered evaluation of my financial position since my previous offer, and considering the cost of living crisis we are observing amongst other factors, I am offering revised payment terms of £50.00 per month which will be a more sustainable number for me, which will not place undue hardship upon myself whilst clearing this £1197.00 debt with nothing further/additional to pay to consider any and all dealings with yourselves and affiliated parties as being settled. This payment plan will then run over the course of 24 months with payment dates being monthly & on the 27th of each month, payable to an account of your choosing.

I again, make this offer without prejudice, and on the understanding that this is not an admission of guilt or culpability. But a way to reach an adequate settlement that puts this matter to rest with yourselves at Overdales/Lowell Portfolio or any other parties completely with no ability for further pursuit for these monies and for any debt and/or balance to be marked as 'zero' across any accounts held/associated with me.

Best,"

I sent this email and revised offer 7 days ago and have not heard back directly regarding this. If you have any assistance or insights to share on this, it would be appreciated, at the very least sharing this should help the general completeness and visibility for the thread

[R0b]

I'm a little baffled by the email they sent, presumably to the court as part of the filing of the bundle? The part that baffles me is that they have wilfully chosen not to obtain a transcript of the judgment or the hearing itself.

It is true that under the CPR there is no requirement for a transcript to be obtained where an appeal comes from the small claims track, but as far as I can tell by their appeal, a transcript is absolutely needed for this one. The premise of their appeal is based upon what the judge did and didn't say or do at the hearing, so how can they prove that the judge did or didn't do anything without a transcript? Are they expecting the appeal judge to to simply take their word for it?

Equally, the fact they say the judge did not make an order for the transcript is very weak as it is not the role of the court to decide whether or not a transcript should be required, it's up the party making the appeal to include what is relevant to the claim.

Without a transcript I am struggling to see how they can prove (and how the judge can make a determination) as to the judge's reasoning and whether that was correct or incorrect. For example, they argue the judge never considered the Denton Test but for all you know, the judge may not have specifically referred to the Denton Test but did take the criteria into account when making his decision based on what he said and reasons why. But again, nobody, including the judge would be able to verify without reading the transcript.

It is also not an excuse that they are unlikely to obtain a transcript in time because unless the transcription companies have changed their ways, they offer 24/48 hour service as well as a 7 day service and sometimes a longer service. Sounds like Lowell doesn't want to pay for the costs of the transcript and are being cheapskates in case they lose their appeal - either that or they have been poorly advised by Overdales. They would need to provide evidence to show they have attempted to obtain a transcript but were unable to do so.

I think the lack of transcript could be fatal to their appeal and you should put that top of your arguments list to try and nip it in the bud. That email should also form part of the bundle for you to rely on. The rest of your arguments in that email are probably going to form pat of your arguments at the appeal as well and I think all of this could be summarised in a skeleton argument.

[echat11]

a) So the questions i have here is why would it have taken so long for this to arrive to me when the subsequent appeal general order forms submitted and dated after this hearing game weeks ago?

It could be that there are delays with their admin. It does happen. You could ask the Court, see what the hold up was.

b) Also on point 7 it is said that Permission to appeal is refused, if that is the case and stated on the judgment beforehand, why are we in an appeals process with a hearing on the 19th? Any clarification or insight into any of the above would definitely be appreciated guys. Thank you.

Even though, the Judge stated 'Permission to appeal is refused', they can still Appeal on limited grounds.

They've challenged how the Judge handled the case in their Appeal and want the Appeal judge to take their word for it, but there will not be a transcript for them (Overdales) to make their case. There's nothing to corroborate what the Judge said, just their word.

[soursocrates]

Hi guys,

Wanted to come back when i had something more substantial to report, the court came back and gave some grounds on why the permission to appeal was granted. But not 15 minutes after i read that letter from the court, i received this from Lowell:


"Dear Mr xxx,

The matter is now before the Court in the appeal, and we’ve made the Claimant’s position in relation to each appeal ground, clear in the Appellant Notice. You are of course free to make your position clear to the Court too. I therefor mean no discourtesy when I say that I don’t know that it’s necessarily helpful to debate these points by email.

I do, though, think it important to respond to the one point of fact, rather than pure legal argument, which you raise: namely, the suggestion that the presumption as to costs on setting aside a regular judgment, has been removed. You suggest that this used to be part of CPR 70.6. I am not aware (though I stand to be corrected) that it has ever been a part of that or any rule within the CPR. Rather, such presumptions tend to arise through case law and in this case, the presumption is expressly stated in The White Book commentary on consequences of setting judgment aside, where I assure you it does remain in the latest edition. You may be aware that The White Book constitutes the definitive guidance on proper interpretation and application of the Civil Procedure Rules in particular, and Court process in general, written and edited by a team of senior judges and other senior lawyers specialising in that subject.

The current (2023) edition contains the above confirmation as to the normal rule, at paragraph 70.6.1 on page 2188 of Volume One, as part of its commentary on CPR 70 (“General Rules about Enforcement of Judgments and Orders”). Under the heading: “setting aside – costs”, it reads:

“costs, including significant court fees, will have been incurred in obtaining of the judgment and in issuing the enforcement process. Who will pay these costs and when is an issue which should be addressed at the hearing of the application to set aside judgment… There are three main possibilities: costs to be paid by the judgment debtor (the usual order when setting aside a regular judgment)… “ (Emphasis added)

For avoidance of doubt, this was a regular judgment, as the grounds on which the Order states it was set aside, confirms. And that will remain the normal rule, which should not be departed from without good reason, regardless whether our client succeeds in its appeal against the whole of the order made. Furthermore, for the reasons set out in our appellant notice, there are positive reasons why departing from the norm in this particular way, and making the particular costs order made, cannot be just or practicable in this case. We therefore believe there is every reason to expect that the part of the Order dealing with costs of the application - will be set aside in the appeal regardless of the outcome on the main substantive issue.

Finally as to your own email, it is, I’m afraid, simply factually untrue to say that the Judgement is, or ever was, registered against your name. It very clearly appears in a name you say is not yours, and a different person. It is a matter between you and credit reference agencies, and nothing to do with the court, this firm or its client, that that judgment against what you hold to be a different person, is reported by them on your credit file, albeit in his name. Of course, if our appeal succeeds and the Order is set aside in its entirety, restoring the CCJ as it was, that will continue to be the case. If, on the other hand, the appeal fails, our client may either choose to proceed with the Claim against you as well, potentially gaining a Judgment that is in your name, or simply to discontinue the claim it now finds itself an unwilling party to against you, and re-enter Judgment against Jeffrey J o r d a n, who has still not defended it – again, it would appear, restoring the previous position.

In the circumstances, you may perhaps wish to consider co-operating with us to dispose of the appeal itself, as well as the underlying proceedings to which, through no wish of the Claimant, you are now joint Defendant.

Our client is at this point willing to compromise the costs point, and confirm that it will (1) forego its costs of the application itself, (2) limit its costs of the appeal to its application fee of £129 only, and (3) accept your reduced instalment offer, provided these terms can now be agreed by way of a draft consent Order by which will need to dispose of the ongoing appeal. Unfortunately, since the last order made, set aside the judgment against Jeffrey J o r d a n, thus re-opening that claim and exposing him, if indeed he is a different person from you, not only to potential further costs but also, re-entry of the judgment against him without offering him any opportunity to defend the claim, the appeal Court is most unlikely to be content simply to stay the appeal, leaving that situation unresolved.

The only basis, then, on which I can see that we might move the matter to a resolution, is that we withdraw the appeal on the basis that you agree a consent order with us (known as a “Tomlin” Order) binding you to the agreed payment terms, failing which Judgment will be re-entered, now against you as a defendant in the proceedings.

Please let us know if you are prepared to accept this in principle, and if so, we will consider detail of drafting and process in the new year."

What do you think about the above offer/mail from lowell guys?

Otherwise, happy christmas & thanks in advance