CCJ being appealed AGAIN, what can be done?

swingaloo

Someone I know obtained a CCJ against a builder. The CCJ was granted as the builder did not respond. He later appealed the CCJ saying he knew nothing about the court action (not true but that's besides the point). A new court date was set and this time the builder did not enter a defence so the judgement was once again awarded against him. He then appealed again citing being in hospital as to why he had not been able to get his paperwork completed on time however the person he owed money to asked the court not to allow the appeal and showed proof that the builder was not in hospital as he said and the appeal was not allowed and once again judgement awarded against him. 

Now having gained judgement in his favour for the second time and getting bailiffs involved the person has found out today that the builder has once again appealed against the judgement and so a new court date has been set.
How can this happen? How can someone win their case, have it appealed, win it again and still have the builder allowed yet another appeal? The court have told her that there is no limit on how many times someone can appeal but that she can ask the court not to allow the appeal. However, she did this last time and the builder appeal was chucked out so why is he allowed to do it again? Does anyone have any advice I can pass on please as its getting silly now. She keeps obtaining the CCJ against him then getting kicked back to square one.

sourcrates

Most default judgments fall into whats termed the "discretionary category" and therefore the court may exercise its discretion to set aside the default judgment in the following circumstances:

• The Defendant has a real prospect of successfully defending the claim; or
• It appears to the court that there is some other good reason why:
  • the judgment should be set aside or varied; or
  • the Defendant should be allowed to defend the claim.

To expand, there has been judicial interpretation of the phrase "real prospect of successfully defending the claim" and it is a relatively low threshold to pass.

The Defendant must show more than an arguable defence and the defence cannot be false, fanciful or imaginary.

Even if the Defendant does not have a defence with a real prospect of success, the court may exercise its discretion and set aside the judgment if there is a good reason to do so. A good reason may be the seriousness of the claim or the fact the documents had not been received within the deadlines.

In exercising its discretion, the court will take into account how promptly the application was made.

Delay can mean the court decides not to exercise its discretion in favour of the Defendant so it is vital a Defendant acts promptly.

In this case it appears the judge may be excercising a little too much discretion, this will also be costing the builder £255.00 per application, I have not heard of making two set aside applications for the same judgement before.

Sorry i cannot be of more help.

swingaloo

Thank you for the reply. Seems crazy that this can happen. she originally got the CCJ against him almost 18 months ago and it was only at the point that bailiffs called that he came up with the 'I never rec the paperwork' excuse. (It went to his old address but the people there had told him about it and he had not bothered to collect it).  So then a second hearing was arranged and once again he failed to enter a defence by telling yet more lies and yet he is still managing to stall having to pay. 
I really feel for her as she has had to pay out a fortune to right his mistakes already and doesn't seem to be getting any help from the court to recover the money.

sourcrates

As they appear to have found out, the court system for debt is far from perfect, and anyone with even basic knowledge, can easily disrupt things indefinetly, obtaining a judgement is just a first step, as many people assume the defendant just pays up, well the truth is quite far removed from that senario, it can be a long drawn out process actually getting paid, you need a judge worth their salt to stop his shenanighans.

Galloglass

Costs in the small claims track are normally limited to £50. If you believe and can evidence that the builder has been misleading the court and acting unreasonably by increasing the claimants costs, you can ask for additional costs under Civil Procedure Rules 27.14 (g)

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27#27.14

The claimant can claim for normal costs e.g court fees plus additional costs such as time off work, bailiffs costs and extra time in preparing at £19/hour (litigant in person rate). Could end up being a few £ hundred additional but ensure a detailed list of these costs are sent to the court and the defendant no less than 7 days prior.

Even if the claimant wins have you carried out a credit check to see how many other CCJ's the builder has and whether they could pay if they lost.

zwilcoxen

Could be worth checking if your fiend can get it escalated to the high court.
High Court Enforcement Officers (Baliffs) are known for not taking any crap.
Again this all depends if the builder actually has any good of value or is actually able to pay.

Naomim

zwilcoxen said:

Could be worth checking if your fiend can get it escalated to the high court.
High Court Enforcement Officers (Baliffs) are known for not taking any crap.
Again this all depends if the builder actually has any good of value or is actually able to pay.

This is the position we are in. We won our small claims action against the ex-builder for £10k so no small amount. This was Feb 2019. We've had nothing, he's moved around rental properties so we'd have to pay out to find him and I doubt bailiffs would be able to get £10k's worth out of his goods and chattels. 

Naomim 

swingaloo2

swingaloo said:

Someone I know obtained a CCJ against a builder. The CCJ was granted as the builder did not respond. He later appealed the CCJ saying he knew nothing about the court action (not true but that's besides the point). A new court date was set and this time the builder did not enter a defence so the judgement was once again awarded against him. He then appealed again citing being in hospital as to why he had not been able to get his paperwork completed on time however the person he owed money to asked the court not to allow the appeal and showed proof that the builder was not in hospital as he said and the appeal was not allowed and once again judgement awarded against him. 

Now having gained judgement in his favour for the second time and getting bailiffs involved the person has found out today that the builder has once again appealed against the judgement and so a new court date has been set.
How can this happen? How can someone win their case, have it appealed, win it again and still have the builder allowed yet another appeal? The court have told her that there is no limit on how many times someone can appeal but that she can ask the court not to allow the appeal. However, she did this last time and the builder appeal was chucked out so why is he allowed to do it again? Does anyone have any advice I can pass on please as its getting silly now. She keeps obtaining the CCJ against him then getting kicked back to square one.

Update time and a little more advice required please about what will happen at the hearing when a person wants to try to appeal against a stay being granted.
Since my last post the bailiffs have visited the person twice, the first time he said he had obtained a stay and they left with nothing. It appears they then visited a second time and this time recovered a sum of money but nowhere near the amount of the judgement. 
However despite him paying a sum to the bailiffs there is still a hearing in 3 weeks time to hear another appeal. Having gained judgement against him twice they just want this over and done with. On both occasions where judgement has been given to my friend the builder has made excuses for not complying with the court and there is irrefutable proof he has lied on both occasions yet he is still allowed to appeal again.
I've done a lot of googling trying to help this friend as they are getting incredibly stressed about the whole thing and how long it is going on but I cant find much information as to what happens in court on the day the appeal hearing is heard. There is plenty telling the person appealing but nothing to explain what exactly is required of the person trying to stop the appeal being granted.
Has anyone had experience of this and can advise exactly what will be happen on the day? Thank you in advance.

Galloglass

The day in court is straightforward enough if the work has been done beforehand. The court will have told your friend what to do. The trick is to have the case won before getting to the actual hearing. 

Send the "irrefutable proof he has lied on both occasions" but call them factually incorrect and not lies. Judges see up to 10 cases a day, every day, involving all walks of life. They have a sharp sense about people. But they can only decide on the papers in front of them and most people fail by not providing the evidence the court requires 7 days prior (and the other parties too)

If the judge is persuaded by the "irrefutable proof he has lied on both occasions" then your friend can ask for exceptional costs under CPR 27.14 (g). See link above. 

On the day? Have a flick through the MoJ's Youtube channel for the bits you want. But if your friend has not done the work 7 days prior, and made sure the court and the other party has the evidence and cost schedule, then the judge will have 
https://www.youtube.com/user/MinistryofJusticeUK/videos 

swingaloo2

Thank you Galloglass. Im sure she will have prepared, I will see her this week but I just know she is in a bit of a state now so I just want to make sure she is ready. I know she submitted everything to the court for the initial hearing but this one is not about the actual claim details. This hearing is about him asking for another stay and her appealing against him getting one so Im assuming she may need some sort of statement giving the reasons why she objects to a further stay. Would that be the case?

Galloglass

Yes. 
Judges will always work to the evidence plus the rules (Civil Procedure Rules as indicated above). He/She will look at the case history to decide if the defendant has had the opportunity to put their case - as the courts are fair. The court is also logical so your friend has to present their case logically.

Her argument for the case not to be reheard (as far as I understand it) is that:

1. The defendant has had their opportunity to present their evidence but failed to do so in a timely manner.
2. The earlier requests were based on factual inaccuracies (aka lies) and is evidence by information that has come to light and would be attached to the letter.
3. The Denton/Mitchell principles should apply. The defendant had their chance and failed to use their opportunity causing additional work for the claimant. 
4. In addition, the strain on court time due to COVID would suggest that unless there is a pressing reason for Denton/Mitchell principles not to apply, then the defendant's request should fail.
5. If the court accepts, Denton/Mitchell applies and that there have been factual inaccuracies in the defendant's earlier applications that amount to no more than time-wasting, then costs should be awarded on the basis of CPR 27.14 (g)

She then adds her statement of truth.

Translating the above is there are 3 elements - evidence, rules and costs. Your friends strongest point is to get the judge to work to the rules (CPR) as clarified by Denton/Mitchell. Denton/Mitchell essentially said a court should follow its own CPR and judges should not try to vary them. Too many judges before these cases tended to make rules up as they went along. Which appears to be the case here. 

The last item is costs and lots of people fail to ask for them. So the cost request should go in to the court beforehand, in detail, and sent to the other party. Make sure they are reasonable, detailed, and charge for her time. Send it to the other party at the same time as the court as it reminds the other party that there is a cost to them for any hassle.

As an aside, I would have expected this to be a phone hearing or papers-only. Seems odd for it to be in a courtroom.