Set aside a CCJ where not served properly

Legacy_user

Our resident legally qualified posters have been explaining the background to CCJ that have been served on previous addresses.

In Tanir -v- Tanir [2015] EWHC 3363 (QB) Mr Justice Garnham found that the court had failed to serve the claim form and, consequently, a judgment had to be set aside. The court had no discretion to act otherwise.

“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…””

KEY POINTS

The judge was not satisfied that the court had served the claim form.

In the absence of service the defendant was entitled to have judgment set aside as of right.

There is no residual discretion available to the court to refuse to set aside judgment in these circumstances.

See http://www.civillitigationbrief.com/2015/12/08/when-the-court-fails-to-serve-an-irregular-judgment-must-be-set-aside/

The article also goes onto say

PRACTICE POINTS

Be aware that, although the failure to serve lay with the court, it was the claimant who suffered the consequences.

Given the facts of this case it may be prudent to consider whether it is always prudent to allow court service.

Anyone applying for a CCJ should also be pushing for a refund of the £255 based on the pernicious effect of these companies constantly waiting to raise a claim in the hope of exploiting a default CCJ when people have moved.

bargepole

PRACTICE POINTS

Be aware that, although the failure to serve lay with the court, it was the claimant who suffered the consequences.

Given the facts of this case it may be prudent to consider whether it is always prudent to allow court service.

What I believe this is referring to, is the situation when manual N1 claim forms are issued via the CCMCC at Salford. The Claimant has the option of sending two copies of the Claim Form and relying on Salford to serve a copy on the Defendant, or of serving the Defendant's copy themselves, either by post or in person.

Where claims are issued electronically through the CCBC at Northampton, which is the method used by all PPCs, it relies on the CCBC to print and send out the form to the Defendant. If the PPC enters an incorrect address (eg one of my defendants' forms were sent to no. 54 when he lives at 64), then it must be an automatic set-aside, with the £255 fee awarded against the Claimant.