CCJ looking for consent or set aside

Raf123411

Hi everyone, 
I had read through newbies topic and Henry posts. 

My case seems to be pretty simple but look like  I got lost after reading lots of topics: 

So Tuesday night  i find out i have CCJ on my file when checked my credit score. CCJ coming from June 2019 from my old adress ,we moved from there on the beggining of January 2019 changing all our informations with DVLA etc. I called the court and find that CCJ its coming from unpaid parking fine from private company(excel parking). On court paperwork it was said it £185 but I don’t remember getting any tickets.

Parking company on their website have straight information about CCJ to direct all emails to specific address. I send email to them on Wednesday morning explaining I never been informed about the case due change of address and ask for ticket and also if they will be willing to consent to set aside. 

Now looking into all informations on this forum look like most of your advice go straight away  to court with form N244.

Can anyone help me what will be the best way In my case? Wait for excel to get back to me with consent to set aside or send form to the court? 

Tbh. I don’t mind paying £185 fine but want to remove CCJ from my files ASAP.

Thanks for your help!

Le_Kirk

The best way is to read the NEWBIE sticky - second post - and some posts by @henrik777 (rather than Henry) and that should point you at having to submit N244 with either £100 with consent or £255 contested.  You can get it cheaper if you can get help with fees - ask Auntie Google to see if you qualify.  You will also need a Witness Statement, a six-point draft order and a good prospect of being able to defend the original PCN, all searchable using the Advanced Search tool.

Raf123411

Thanks for your help! 

How long shall I wait for creditor to respond if they consent to set aside? Most people saying it’s week, if but I called them today and they said its taking them 2 week to get back to all the emails. 

 

In case they consent to set aside do I still need to submit consent with all documents: Witness Statement, a six-point draft order and a good prospect? 

Thanks!

nosferatu1001

You don't need the same draft order, if it's with consent. Have you read the 6 points ?! Most don't apply....

You are completely aware you must act promptly yes? CPR 13.3. If you don't get a response quickly enough, you will be out of time to apply for without consent.  

Raf123411

Yes thanks I had good read about the 6 points.

I’m aware I have to act promptly, that’s why I’m asking if it’s reasonable to allowed claimant to get back to me in 2 weeks about consent or shall I send n244 contested?
What will happened if I send n244 to court and in mean time claimant consent to set aside? 

Sorry if there is any stupid questions but feel like more I’m reading about its only more confusing.

nosferatu1001

It's not confusing. You have an aim: successful set aside. You don't care if they consent or it's contested, as long as you get the set asude

so no. Two weeks is likely too long for you to meet your cpr13.3 obligation to Act promptly. 

henrik777

Raf123411 said:

Thanks for your help! 

How long shall I wait for creditor to respond if they consent to set aside? Most people saying it’s week, if but I called them today and they said its taking them 2 week to get back to all the emails. 

 

In case they consent to set aside do I still need to submit consent with all documents: Witness Statement, a six-point draft order and a good prospect? 

Thanks!

The reasons i suggest asking for a consented set aside are
1. You have a duty under cpr 1 to minimise costs, court time and the issues in dispute.

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01#1.3

Duty of the parties

1.3

The parties are required to help the court to further the overriding objective.

The overriding objective

1.1

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing;

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders.

By not asking the claimant (respondent) you put yourself on the back foot if they say to the court " we would have agreed to the set aside if we were asked". This makes asking for costs awkward ,and indeed, you may be asked to pay the opponents costs or at least a part of them as your actions led to unnecessary costs.(They can claim this if you don't ask, whether it's true or not you'd never know)

2. If they agree, it makes things easier.

Now just as you run costs risks by not asking, so do they by refusing or unnecessarily delaying matters forcing the more costly application. It does seem that many are willing to take this risk because many applicants don't ask for costs or can't describe the claimants faults well enough to cause enough of a financial risk to them. 

Why would they agree ?

Because it's cheaper than losing.

Or because you are so desperate to remove the CCJ that you'll pay the ransom for an easy life. However bear in mind, you do not have to pay the ransom in order to seek a consented set aside.

It would be open to argue that any delay caused by the slow responses of a claimant caused a delay and this should be enough to explain the delay and satisfy the court but what's the point in taking that risk if there is any danger it harms your own position ?

Raf123411

Hi @henrik777 , 
thank you for your input in my case it’s super helpful and will make much more sense! 

I’ll give them 7 days and then submit  application to set aside to court without their consent. 

Do you think I can add any of your points to my witness statement or draft order?

Thanks again!

nosferatu1001

Not to the draft order, no. And remember you CANNOT use the same draft order for each case. A consented order is of course totally different to contested. 

Your WS can of course lay out facts, given that a WS lays out facts

trll them the deadline and what you'll do if they don't get back quickly enough. 

Coupon-mad

The NEWBIES thread has two examples of WS and Draft Order for a set aside.  Adapt them.

Raf123411

Hi everyone thanks for you help.

Sorry for delay on getting back, but I spent couple days reading trying to undertand the whole situation.

I send another email to excel following on my 1st email from 11/11/2020 askinf for respond withing 48h.

Can you have a look on my draft order and WS?

________________________________

WITNESS STATEMENT OF YOUR NAME
_________________________________

I , xxxxx, being the Defendant in this case will state as follows;

1. I make this Witness Statement in support of the application for an order that the judgment in this case (Claim No. xxx Judgment dated 03/07/2018) be set aside.

2. I learnt of the existence of this claim on the 10/11/2020 when I Checked my Credit File [EXHIBIT A]

3. My address changed in 21/12/2018 to xxxx, with January being the final month of the tenancy of xxx. EXHIBIT B]

4. Any further information about why you did not defend/acknowledge originally

5: On 11/11/2020 I made a written request to the Claimant inviting them to consent to set aside the judgment due to the reasons in paragraph 4. Follow by written request on 16/11/2020 and 17/11/2020 stating urgency of the case.

6. The Claimant did not respond to my request.

7. I therefore respectfully request that the Court sets aside the judgment in this claim and allows 14 days for me to submit my defence.

8.
Statement of Truth

I, YOUR NAME, the Defendant, believe the facts stated within this Witness Statement to be true.

Signed: ________________________________

Dated: ________________________________

 

 

 I use one of the members template and adjust to my situation:

WITNESS STATEMENT
IN THE COUNTY COURT AT: XXXXX
CLAIM No: XXXXXXX
BETWEEN:
Excel Parking Solution (Claimant)
-- and --
XXXXXXXX (Defendant)
______________________________________________
WITNESS STATEMENT
______________________________________________
1. I am XXXXX and I am the defendant in this matter. This is my supporting statement to my application dated 19/11/2020 requesting to:
a. Set aside the default judgment dated 03 January 2019 as it was not properly served at my current address
b. Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee.
c. Order for the original claim to be set aside.

2. Default Judgment

2.1 I understand that the claimant obtained a default judgment against me as the defendant on XXX February 2019. However, this default judgment has not been served at my current address. Therefore, I was not aware of the County Court Judgment until I received notification of a change in my credit rating score on the XXX March 2019.

2.2 I learnt of the existence of this claim on the evening of 10/11/2020 when I Checked my Credit File. On 11/11/2020 I requested report from Trust online to find out the details of the case. Once I received case number I contacted  CCBC to find out the details of the claimant.

2.3 I understand that the judgment was served at an OLD ADDRESS (XXXXXXXXX). However, I moved to a new address in December 2017 with my tenancy at the old address ending on the end of January 2020. In support of this I can provide mortgage deed, council tax bill  for my new property. See EVIDENCE A

2.4 I have not ever received any previous documentation from the Claimant in this matter and I thus was never able to properly challenge the Claimant’s claim.

2.5 I amended address on my V5C on the beginning of January receiving document with updated address on 07/02/2020. This serves as further evidence that I acted in good faith and have not attempted to avoid any debt or contact. SEE EVIDENCE B.

2.6 I suggest the claimant did not make reasonable enquiries as to my current address before pursuing the court order especially considering they had good reason to believe they did not hold my current contact details. As stated in the Civil Procedure Rules CPR 6.9(3) where a claimant has reason to believe that the address of the defendant referred is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business. At the time of the County Court Judgment, my V5C and HMRC records were registered at my new address so I was there to be found by a simple trace SEE EVIDENCE C. Furthermore, considering they received no response from me to their correspondence I believe the Claimant had reasonable cause to question whether they were using an accurate address and that simple searches could have provided them with the correct address.

2.6 I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held my correct contact details. According to publicly available information, my circumstances are far from being unique. The Claimant appears to have consistently failed to reasonably pursue the claim, as has been referred to as the practice of ‘Credit Clamping’, which several members of the Government have strongly condemned. Prime Minister Theresa May has pledged to investigate the ‘abuse’ of the CCJ system, while The Rt Hon Sir Oliver Heald QC MP has been quoted as saying on 23rd December 2016: "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. In the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address." and "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses."

2.7. On the basis provided above I would suggest that the Claimant did not fulfil their duty to use the Defendant’s current address when bringing the claim.

2.8. Considering the above I as the Defendant was unable to defend this claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside.

Now question about draft defence. I requested all letters and photgraphies from Excel SAR.

Can i state as a point ?

3.0 Draft defence

I will my draft defence when attening to hearing at the court as I have not ever received any previous documentation from the Claimant about this matter so await full disclosure of the Penalty Charge Notice issued that I have requested via a Subject Access Request (please see evidence f).Base on Penalty Charge Notice I will be able to draft my defence.

Also I`m the only register keeper of the vehicle so dispute for Excel to prove who was the driver of the vehicle will be very difficult?