CCJ looking for consent or set aside

KeithP

Le_Kirk said:

I had email from Excel yesterday with their defence prior to hearing in April.

Did you mean witness statement?  Claimants don't submit a defence.

Excel claim it is a Witness Statement in their opening paragraph.
Remember this is for a set aside hearing.  

nosferatu1001

It's a set aside, so they are a respondent, the OP is the appellant

henrik777

Without sight of your application etc ....

11.   The Application is made pursuant to CPR 13.3 (a) and (b), such being;

So why do they then go on about service ?

 13.   The Claimant has not been provided with a copy of the Defendant’s Application. and as such, are unable to address any allegations contained therein.

 

Service of Claim Form
15.   The Claimant submits that the Judgment is regular as the address for service was XXXXX. As per Part 6 of the Civil Procedure Rules, the Claimant has relied on the Defendant’s last known/current address provided by the DVLA.

I would argue with that but for 13.3 it means little.

 

Promptness of the Application
16.   The Claimant submits that promptness is an important matter to which the Court must have regards too. Whilst the constitution of promptness will be judged by the Court on the basis of all the facts of the case, reference is made to Start Investments v Fidler [2006] EWflC 2857 (in the 2014 White Book notes at 13.3.3) HH Judge Coulson held that a delay of 59 days in making the application to set aside Judgment in default was ‘very much the outer limit of what could possibly be acceptable’
17.   Further, in The Big Yellow Van v Rayner [2014] the Judge refused to set aside the default Judgment as 102 days between service of the order upon the Respondent and their Application to set aside ‘was a very long delay and was not prompt within the meaning of CPR 13.3
18.   The Claimant submits that as regards to the time in which Applications have been deemed to be ‘prompt’, the limit appears to be some way short of 26 months that
have elapsed in this case. Thus, 30 days has been deemed to be too long; Khan v Edgbaston Holdings [2007] EWflC 2444 9QB0, per HHJ Coulson OC. It has been suggested that 59 days is very much at the outer limit in Start Investments v Fidler [2006].
19.   The Claimant obtained the County Court Judgment on or around 3’d June 2019. The Application was submitted on the 20'h November 2020. The Claimant submits that 1 year and 5 months is a very long delay and is certainly not prompt within the meaning of CPR 13.3. Therefore, the Court is invited to dismiss the Defendant’s Application on this limb alone.

If you don't know about something, promptness can ONLY begin once you have found out. I mean really....

As for the defence or reasonable prospect, it depends what you said. If it's a matter of evidence then that has to be tested by a court hearing, not at a set aside.

nosferatu1001

Yeah, that last is their standard pretence that you were supposed to have known about the judgemt on X date, when obfiouslyt you didnt - and you stated as such presumably in your application!

Raf123411

nosferatu1001 said:

Did you get that info from the courts as you were told to?
The important part of a set aside is service, and theyve tried to pretend it doesn't matter with that single sentence...

Hi Thanks for prompt respond. I never managed to get my head around this with court, but will call them tomorrow. Shall I ask them for confirmation of the letters send or anything else?

Le_Kirk said:

I had email from Excel yesterday with their defence prior to hearing in April.

Did you mean witness statement?  Claimants don't submit a defence.

Noted, yeah sorry its WS from Excel not the defence.

henrik777 said:

Without sight of your application etc ....

11.   The Application is made pursuant to CPR 13.3 (a) and (b), such being;

So why do they then go on about service ?

 13.   The Claimant has not been provided with a copy of the Defendant’s Application. and as such, are unable to address any allegations contained therein.

 

Service of Claim Form
15.   The Claimant submits that the Judgment is regular as the address for service was XXXXX. As per Part 6 of the Civil Procedure Rules, the Claimant has relied on the Defendant’s last known/current address provided by the DVLA.

I would argue with that but for 13.3 it means little.

If you don't know about something, promptness can ONLY begin once you have found out. I mean really....

As for the defence or reasonable prospect, it depends what you said. If it's a matter of evidence then that has to be tested by a court hearing, not at a set aside.

I hope there is strong prospect of defending the claim with all defence I submmited to the court regardless what Excel is saying. Also regarding CPR 13.2 as I never received anything from court or excel and then when I realised about CCJ on 10/11/2020 and after collect all informations and not heard back from excel to set aside by consent i sent my aplication to court on 20/11/2020. ( Hope this will be considered as prompt application)

I know everything will be depend how court will be look into this matter and consider my evidence of any of the letter wasnt delivered while I moved my address.

nosferatu1001

CPR 13.2 has no requirement for prompt action 

cpr13.3 does

Coupon-mad

It is ludicrous that they are suggesting this:

18.   The Claimant submits that as regards to the time in which Applications have been deemed to be ‘prompt’, the limit appears to be some way short of 26 months that have elapsed in this case.

Did you understand the nuance of what @henrik777 said:

If you don't know about something, promptness can ONLY begin once you have found out. I mean really....

We are being sarcastic about Excel's drivel!

Raf123411

Coupon-mad said:

It is ludicrous that they are suggesting this:

18.   The Claimant submits that as regards to the time in which Applications have been deemed to be ‘prompt’, the limit appears to be some way short of 26 months that have elapsed in this case.

Did you understand the nuance of what @henrik777 said:

If you don't know about something, promptness can ONLY begin once you have found out. I mean really....

We are being sarcastic about Excel's drivel!

Thanks for your respond,  I’m not fully sure if get the nuance which @henrik7. When I got letter from Excel it’s all seems overwhelming but after reading few times and think about this it seems like I could have fair chance to set aside. 

Is correct of using both of the CPR 13.2 and 13.3 to set aside as I believe they both applied in this occasion?

I msg my old landlord again and he confirmed there was no post delivered from court or any other post for my attention once we left the house and he is happy to confirm this in front of court if needed. 

Is court papers have to be send by post as sign for or just normal 1st/2nd class?  Is there is the way to confirmed I never received anything from them apart from just this being word against the word? 

henrik777

To say that a court would consider promptness of your action from a starting point BEFORE YOU KNEW ABOUT IT is absolute idiocy. As arguments go it's like looking at the sky on a clear sunny day and trying to argue it's not blue.

I would argue 13.2 then 13.3 but i've not seen what you submitted.

I would ask your old landlord for a witness statement. However, i'm then wondering WHERE the claims were sent ? Or why didn't they get there ?

1st class post usually.

Raf123411

henrik777 said:

To say that a court would consider promptness of your action from a starting point BEFORE YOU KNEW ABOUT IT is absolute idiocy. As arguments go it's like looking at the sky on a clear sunny day and trying to argue it's not blue.

I would argue 13.2 then 13.3 but i've not seen what you submitted.

I would ask your old landlord for a witness statement. However, i'm then wondering WHERE the claims were sent ? Or why didn't they get there ?

1st class post usually.

Hi sorry for the delay in answering this question. Over this month I managed to obtain a statement from the landlord he confirms all letters were delivered to me ( 3-4 when we moved) and none of them seemed like required urgent contact.

I was just wondering if the court case was in June when they would send the letter informing me about this?

Just thinking about this its seems bit random that none of the letters was delivered either from Excel or from the court.

Regarding to details I got from Excel they send 5 letters which last dated 28/03/2019.

I`ll attach this to my WS that I`m sending in PDF bundle to court and Excel tomorrow.