CCJ set aside - help with prospects and consent

henrik777

From reading the CPR and the more laypersons versions on other websites I did not think I would be eligible for a mandatory set aside as I have not satisfied 12.3(1-3) of the CPR?

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13#13.2

Cases where the court must set aside judgment entered under Part 12

13.2 The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because–

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied

Conditions to be satisfied

12.3

(1) The claimant may obtain judgment in default of an acknowledgment of service only if –

(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and

(b) the relevant time for doing so has expired.

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part12#12.3

The relevant time for filing an acknowledgement of service 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part10#10.3

The period for filing an acknowledgment of service

10.3

(1) The general rule is that the period for filing an acknowledgment of service is –

(a) where the defendant is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim; and

(b) in any other case, 14 days after service of the claim form.

(2) The general rule is subject to the following rules –

(a) rule 6.35 (which specifies how the period for filing an acknowledgment of service is calculated where the claim form is served out of the jurisdiction under rule 6.32 or 6.33);

(b) rule 6.12(3) (which requires the court to specify the period for responding to the particulars of claim when it makes an order under that rule); and

(c) rule 6.37(5) (which requires the court to specify the period within which the defendant may file an acknowledgment of service calculated by reference to Practice Direction 6B when it makes an order giving permission to serve a claim form out of the jurisdiction).

If the claim form was not served (or validly served as some may put it) the time limit for acknowledging service has not begun. If it hasn't begun it can't have expired. If it hasn't expired that is a mandatory set aside. 

This is on point with the court of appeal in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016) 

Moreover, I do not consider that the CPR presents an obstacle in the circumstances of this case to setting aside judgment. CPR 13.2 provides that the court must set aside a default judgment where any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied. The latter provision does not apply, but the former is relevant. CPR 12.3(1) states that a claimant may obtain judgment in default of an acknowledgment of service only if (a) the defendant has not filed an acknowledgment of service or a defence and (b) the relevant time for doing so has expired (my italics). I accept Mr McLaren's argument that, when an order for retrospective validation of an alternative method of service has been made pursuant to CPR 6.15(2) the relevant time for filing an acknowledgment of service is the period which the court must specify under CPR 6.15(4)(c). Where, as in this case, the court did not specify any such time there can be no relevant time which has expired for the purposes of CPR 12.3(1). If this analysis is correct the requirements of CPR 12.3(1)(b) have not been satisfied and so the court is obliged to set aside the default judgment pursuant to CPR 13.2(a).

I do not see it as a draconian consequence that a judgment, obtained after deemed service has been effected without specifying a time for that service to be acknowledged, should be set aside as of right in such a case. I agree that CPR 13.2 specifies the circumstances in which a default judgment must be set aside and in my judgment one of those circumstances is when judgment is entered in default of an acknowledgment of service when "any of the conditions in rule 12.3(1)…was not satisfied". Here one such condition was not satisfied, namely the time for acknowledgement of service had not expired, because none had ever become applicable.

This, to my mind, is not "playing technical games" (c.f. the passage from the Abela case, cited at paragraph 11 in the judgment of Longmore LJ). It is merely applying the principle that due process should be followed. If a defendant has never become under a valid obligation to acknowledge service, either as specified under the rules or by order of the court, I do not see how it can be that a judgment can be entered against him in default of such acknowledgment. He is simply not in default at all.

orange_dog

@henrik777 THANKYOU SO MUCH!!  that makes so much sense to me now and really follows through as to why it should be set aside as per 13.2
These are the changes I have made for reference:

18.     It is shown by paragraphs 10-15 that the defendant was in fact never validly served the claim and therefore the CCJ incorrectly issued and asks that under CPR 13.2 the court set aside the CCJ.

19.     CPR 13.2 states “ The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied

20.     Under CPR 12.3, the conditions to be satisfied are as follows –

(1) The claimant may obtain judgment in default of an acknowledgment of service only if

(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and

(b) the relevant time for doing so has expired.

21.     Under CPR 10.3 regarding the relevant time for filing an acknowledgement of service, the general rule is that the period for filing an acknowledgment of service is –

(a) where the defendant is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim; and

(b) in any other case, 14 days after service of the claim form.

(2) The general rule is subject to the following rules –

(a) rule 6.35 (which specifies how the period for filing an acknowledgment of service is calculated where the claim form is served out of the jurisdiction under rule 6.32 or 6.33);

(b) rule 6.12(3) (which requires the court to specify the period for responding to the particulars of claim when it makes an order under that rule); and

(c) rule 6.37(5) (which requires the court to specify the period within which the defendant may file an acknowledgment of service calculated by reference to Practice Direction 6B when it makes an order giving permission to serve a claim form out of the jurisdiction).

22.     It is pointed out that if I was never validly served the claim, as outlined by due procedure above, the timeline for acknowledging the claim has not begun. If it hasn’t begun it can not have expired. If it has not expired, then under CPR 13.2 a mandatory set aside should be considered.

23.     I would like to draw the court’s attention to the conclusions drawn in the case of Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016) in the Court of appeal [Exhibit H]. The conclusions drawn by both Lord Justice Treacy and Lord Justice McCombe are in fact in line with the details outlined in this statement. Most notably that a valid claim form was never served and therefore an expiry date could never have occurred. Therefore CPR 12.3 cannot have been satisfied thus resulting in CPR13.2 being applicable.

 

24.     As shown above that I was never validly served the claim, it is asked that the Claimant cover the costs of the set aside application as it was the Claimant’s negligence which led to the CCJ being incorrectly awarded by default. 

In addition I have added this to the last point, do you feel this is still an after thought?

30.     If this is not satisfactory, it is shown from the above that the defendant never got chance to defend the claim and asks that under CPR 13.3 the court set aside the CCJ to allow a defence to be made if the parking charge is not struck out. CPR 13.3 states “In any other case, the court may set aside or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

31.     Attached is a draft defence to aid the consideration of the court in a discretionary set aside if the court feels that the conditions for a mandatory set aside are not met. 

I will give VCS 7 days to respond and then file my N244 with WS and draft defence - this will be under 2 weeks since I first learnt of the CCJs, hopefully the judge will find this timely.

Thanks again

henrik777

Yeah if you have attached a draft defence that's much better.

Give VCS 7 days but make sure you are aware if you sit for 7 days you give them a chance to ignore you then claim "we never got it" therefore chase them after 3/4 to head that off.

orange_dog

@henrik777 thankyou for your wise guidance!! I have everything crossed for good luck!

orange_dog

Hi All,

I have now created my draft defences to send to the court along with my WS/draft order and N244+fee to set aside for both claims VCS have made against me.

I have until tuesday to finish them as at this time the 7 days I gave VCS to consent will be up and I will be sending all docs. 

If anyone could please given them a read over in this google drive link I would be very grateful for any feedback.
https://drive.google.com/file/d/1tgXTuUeEjDEVMbvR8fdHs_CaJuEx2uzu/view?usp=sharing

Thanks!

orange_dog

Still no response from VCS so looks like I will be continuing with set aside without consent!! 

If anyone could look over my defence for any feedback this would be much appreciated!

Coupon-mad

That link only took me to your defence but it looks fine except a tidy up and spell check is needed as I saw some typos:

***7.

sstipulate

1505grandad

Para 16  -- "Jopson v Homguard"  -  typo "Homeguard"