Judgement for Claimant (in default)

henrik777

valiant24 said:

Thanks Henrik.
>> No mention of asking them to consent ?
I may have missed something.  Can you expand on this please?
>> A witness statement for a set aside focuses on the reasons for not defending first time around. 
But as I read other posts it needs also to include a clear statement of why the Defendant believes that he/she has a strong case, and an outline of that case?

An application can be with a hearing (£255) (commonly referred to as contested application) or without a hearing (£100) (commonly referred to as a consented application).

You are asking the court to remove a CCJ and return a claim to a pre defence state. 


It is a rule of the court (cpr 1 {aka the over riding objective}) that the court do things as effectively as possible (cost, time, resources etc) and also that BOTH parties act in a manner which helps this. If 1 party doesn't then they should be expected to incur the wrath of the court (usually in costs).

So no matter what your reasons are you should ask the opponent to consent as it's cheaper and has a higher rate of success than if the 2 parties disagree (obviously).


Now, if the claimant has done no wrong, and you are trying to clear a credit record for example, they're only likely to agree if you pay £100 fee plus what they say you owe. 

If on the other hand they caused the issue by using a duff address you'd be on the front foot and might be able to force them to pay the fees etc.

valiant24

Thanks Henrik
Now, if the claimant has done no wrong, and you are trying to clear a credit record for example, they're only likely to agree if you pay £100 fee plus what they say you owe. 
The Claimant, its various lawyers, and various debt collectors have been mailing me for almost 3 years about this, mainly to my his old address.   However, the Judgement for Claimant was sent to the correct address, so we can assume that the Claim Form, if it was sent by the Court (and there's no reason to suspect it wasn't, even if he didn't get it) was also.   It would be difficult to claim that the Claimant is responsible for my son-in-law not receiving the Court Claim form.

Are you saying that he should write to the Claimant asking to agree to an uncontested Claim, but in order to do so he will have to offer to pay both the £100 fee AND the whole of the £288 to the Claimant in advance of the uncontested hearing?

henrik777

valiant24 said:

Thanks Henrik
Now, if the claimant has done no wrong, and you are trying to clear a credit record for example, they're only likely to agree if you pay £100 fee plus what they say you owe. 
The Claimant, its various lawyers, and various debt collectors have been mailing me for almost 3 years about this, mainly to my his old address.   However, the Judgement for Claimant was sent to the correct address, so we can assume that the Claim Form, if it was sent by the Court (and there's no reason to suspect it wasn't, even if he didn't get it) was also.   It would be difficult to claim that the Claimant is responsible for my son-in-law not receiving the Court Claim form.

Are you saying that he should write to the Claimant asking to agree to an uncontested Claim, but in order to do so he will have to offer to pay both the £100 fee AND the whole of the £288 to the Claimant in advance of the uncontested hearing?

Probably, if he wants rid of the CCJ. But he also needs to find out where the claim was sent. Ask the court.

Coupon-mad

Please just read threads where Henrik777 has covered this umpteen dozen times in January!  Click on his profile and scroll down and search for his 'replies' which then get listed in data order at the bottom. 

Go back to January and read lots of his replies, which are pretty much all on set aside threads.  Read about mandatory set asides and 'with consent' as a cheaper option.

Asking the PPC to consent DOES NOT mean offering them the money, in a case where it looks like set aside will likely be 'mandatory',

valiant24

Go back to January and read lots of his replies, which are pretty much all on set aside threads.  Read about mandatory set asides and 'with consent' as a cheaper option.
Thank you.
I will re-read them.   But the rash of set-aside cases in January were all (so far as I can see) when the CCJ had been issued months ago.   We are not in that position: the CCJ was issued just 6 days ago and as things stand we have the option to pay within a month and have it removed from the register if we wish.  I'd like to understand how (if at all) that affects our strategy.
Cheers
V

Coupon-mad

There was no rash of them in January.  No more than any other month.  We always have loads of threads about set asides - have done for 2 or 3 years - but January was when Henrik777 was replying a lot about mandatory set asides.

The only difference in your case is the judgement call of: 

Do you take the easy route and pay the scammers, or do you take the set aside route because you don't want to pay them, as a matter of principal, even though unpicking it this way takes longer and might mean you don't get the court fee back.

Pretty much everyone here beats the PPC in court re the actual scam PCN, so paying it grates, but has to be your call.  First, read Henrik's replies since Xmas.

valiant24

OK thanks.  He has zero chance of having the judgement set aside on mandatory grounds: none of the criteria apply as he can't prove that he never received the one thing he needed to receive, viz the Court Claim Form, on the one time it would have been sent.
He'll need to apply on the discretionary grounds that "the defendant has a real prospect of successfully defending the claim".
I remain utterly baffled on why he should contact the Claimant (actually his "legal advisors") - who's sitting pretty with a default judgement in his slimy lap - and what he should say to them.
Maybe:
Dear Mr Slimeball
Ref Claim GXXXXXX.   I note you  received judgement by default in this case on 14/02/20.  I intend to apply to Set Aside this judgement on the grounds that I did not receive the Court Claim Form, and that had I done so, I would have successfully defended the Claim on the grounds that, under the terms of the Leasehold under which I held title to a flat at the location specified in the Claim, I had a wholly unfettered right to park a motor vehicle without obligation to seek permission from a third party, much less to pay that third party for a permit.
My purpose in writing is to ask if you will consent to this application.   An uncontested application costs £100, but if you do not consent, a contested application will cost £255.  If successful when the original Claim is heard I will be requesting full costs, as I am sure will you if you are successful.  It is therefore in both our interests to minimise costs, and am therefore hoping that you will give your consent to my application.
I look forward to hearing your response shortly.
Any good?
Thanks
V

Coupon-mad

Oh I see, this was a very recent claim form that seems to have gone astray in January (and he has had post not delivered before at this address). 

Makes it harder - but yes, but your planned email there looks very reasonable and gives a paper trail to prove when he speaks to the Judge at the set aside hearing that he:
- acted quickly as soon as the default judgment arrived
- attempted to mitigate the loss of costs and avoid burdening the court with a set aside hearing, by trying to reach agreement with the Claimant, given that the D was never liable for this inflated claim and was not prepared to settle a charge that was entirely without merit
- then applied for the set aside quickly when the C said 'get lost' (makes them look bad = that's a good thing!).

On the N244 he completes a witness statement which both a) Explains that he did not receive the Court form, perhaps mentioning a history of post going missing from the shared area of the flats where they now live. and b) Outlining his case for the Lease having Primacy.
The Court may refuse the request to re-hear the case because his excuse of not receiving the form is not credible, or it may re-open the case.

Also, IMHO anyone trying to set aside a CCJ to a PPC (except ParkingEye) can use the argument that the court has a duty to consider the fairness of the consumer contract under the CRA 2015 and that most Judges are now disallowing the falsely inflated sum (£60 probably) at hearings, and some Judges are even summarily striking claims out entirely.  Thus, in a case where a parking firm has an inflated CCJ that includes the £60 it cannot be right that the consumer is not allowed the opportunity to raise issues relating to breaches of Sch2 of the CRA 2015, and the court has a duty under s71(2) of the Act to apply a test of fairness to all consumer contract cases.

Does that make sense?  I'd be saying something like this at the hearing to support that point:
 ''Sir/Madam, can I take you to s71(2) of the CRA 2015 which provides for a duty upon the courts to apply the test of fairness, whether a consumer has raised it or not.  I am asking for the chance for the court to properly assess and consider the unfairness of this alleged contract.  The unfairness includes the original £100 (due to primacy of contract of residents whose lives are being made a misery at that location) but also, the CCJ is for a significantly inflated amount, it is an abuse of process and should not stand unchallenged or be waved through''.

henrik777

The strategy to employ varies dramatically depending upon WHERE the claim form was served and whether this was correct.

If it's a case that it's wrong that would be very different to spending £255 to avoid £288  (because the opponent isn't going to consent if you're fighting it).

nosferatu1001

I dont see why you cant use the mandatory set aside ground - it is a fact it was not received, and a history of post going missing obviously assists this. YOu would still apply under both 13.2 and 13.3, because why not?