Help with a CCJ Set Aside please?

Coupon-mad

What you say sounds very positive.  The issue is usually a Judge who omits to even talk about costs and is naive enough not to realise that the C can just discontinue and walk away 'costs free' leaving you to pick up the tab, if they fail to mention costs in their Order.

We had a case where the first Judge failed to mention costs in the CCJ set aside Order.

Months later, the second Judge dismissed the PCN claim and ordered the C to pay the set aside fee back to the D, which they did...initially.

Then the greedy C's solicitor shoved in an objection to the second Order because costs were not an issue in the case (the first Judge having omitted to mention them) and in the end, as a matter of law the poor D was ordered to REPAY the damn costs back to the parking bullyboys. 

Mars28

Wow that would be so annoying! We certainly discussed costs, and agreed to defer the decision, but it was me who used the term reserved, which the judge acknowledged. Will see what comes out of the court through I guess!

If the C decides to request to settle early - I assume I'd accept nothing less than about £522 costs (£275 (fee) + £95 (loss of a day) + £152 (£19ph x 8hrs), and a notice of discontinuance? Otherwise I might as well as head back to court and add another £247 (95 + 152) for that hearing? I could easily ask for more as I have to travel back to my home court because I work away from home much of the time.

Coupon-mad

I think, in our experience, they are far more likely to just discontinue with no warning nor settlement discussed, to cut their losses and they'll hope you'll be so relieved that you won't realise that you can still prod the court to grant your costs...

...as long as they are reserved!

Mars28

So C is trying to settle, or at least trying to offer me the opportunity - clearly I am not going to. I don't know if they genuinely think they have a chance, or just trying their luck!

I am now concerned that reserved costs wasn't included in the order! I've not received it yet, but when I rang up they said 'costs in case' which I assume was from the judge's hearing notes, and I assume it doesn't protect me from the C discontinuing!

Coupon-mad

Hmmm...'costs in the case' I think means costs ARE still claimable but @Johnersh will know.

Mars28

thanks - with any luck that will be the case.

Just found evidence that the C has mislead the court. They claimed in their WS, and verbally in court, that they had conducted a trace. I now have confirmation from both C and solicitors that a trace was NOT actually conducted. I'll use it to support my costs argument, but is there anything else I should do? I don't want to miss any opportunity to hit back at the C.

Johnersh

Costs in the case simply means that they get rolled up at the end, so the ultimate winner gets the earlier costs too. 

Mars28

Ok thanks. Hopefully this means C can’t just discontinue and the whole thing goes away without going in front of the judge again!

I’m still annoyed about the lies C had pushed….really want to have the chance to demonstrate these in court!

Harvez63

Well done @Mars28! following your thread closely 

Mars28

Finishing my Defence. My WS is not for another 2 weeks plus. Grateful for your thoughts? I think I'm mostly trying to make sure I get costs, as it should be fairly certain I can prove I wasn't the driver. Do you think I remove paras 7-11 and save them for my WS?

Thanks for any help.

DEFENCE

---

1. The parking charges referred to in this claim did not arise from any agreement of terms. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Court has already struck out the Claim against the Defendant as keeper of the vehicle. Liability is denied as the Defendant was not the driver.

The facts as known to the Defendant:

3.   It is denied that the Defendant was the Driver of the vehicle in question on the relevant date

4.    At the time of the event, the Defendant was at Sea on XXX. The Defendant could not have been the driver.

5.     Redacted: Para explaining what i was up to

6.     As the Defendant was not the driver, there is no legal authority to hold the Defendant liable as Keeper other than the Protection Of Freedoms Act 2012 – Schedule 4, which the Claimant has selected not to comply with.

Unreasonable Conduct

The Defendant asserts that the Claimant has acted unreasonable on the basis that:-

7.    The Claimant misled the Court during the Set-Aside Hearing. The Claimant stated to the court that a ‘trace’ was conducted in accordance with CPR 6.9(3) which influenced the judge’s judgement and decision on costs during the hearing. However, both the Claimant, and the Claimant’s representatives have since confirmed that a trace was NOT conducted, contrary to the Claimants Witness Statement 1 (REF) and advocate's verbal brief to the Judge. This has caused an irregular judgement, as the Judge was unaware that:- 

         a. CPR 13.1 applied.

         b. The Claimant had acted unreasonably by not adhering to CPR 6.9(3)

         c. The claim should have been Ordered struck out on the basis that 4 months had passed from issue of proceedings.

8.     The Claimant pursued the Defendant fully aware there was no basis to do so. The Claimant pursued the Defendant as Keeper or Driver (ref POC and WS) despite knowing there was no legal basis to do so.

           a.  As Keeper. The Claimant knowingly issued non-POFA compliant notices, as is seen routinely by this serial litigator.

           b. As Driver. The Claimant has no evidence, despite stating to the judge that there 9 additional photos, that the Defendant was driver. The Claimant is aware there is no legal authority iaw (REFs) to assume a Keeper is the Driver, but does so anyway, 

9.        The Claimant failed to meet Pre-Action Protocol for Debt Claims.

10.       The Claimant issues non-POFA Compliant Notices (beyond just Para 9(1)(2)f which transfers liability from Driver to Keeper).

11.        The Claimant did not respond to correspondence from the Defendant. On discovering the presence of the CCJ, the Defendant wrote to the Claimant on XXX (Ref) in an attempt to resolve this issue. The Claimant chose not to respond.

Attention is drawn specifically to the (often-seen from this industry) possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not normally apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."

In the matter of costs

22.    The Defendant asks for, 

1.  At the very least, for standard costs for attendance at Court, pursuant to CPR 21.14:

2.         N244 Set Aside Fee at £275.

1.         Standard witness costs for attendance at Court on XXX at £95.

2.         Standard witness costs for attendance at Court on XXX at £95.

1. And, for a finding of unreasonable conduct by the Claimant, pursuant to CPR 46.5:

1.             Litigant in Person Costs for both hearings, for 20 hrs, at £380 (£19ph).

2.             Travel Costs for a return journey from XXX to XXX Court.

3.            Parking at XXXX Court Car Park at XX and XX respectively.

Statement of Truth

I believe that the facts stated in this defence are true.  I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Defendant’s signature:

Date: