Phase 1: CCJ Removed. Phase 2: Claim Discontinued. Phase 3: Costs.

Coupon-mad

Harvez63 said:

I guess its pointless writing back asking for the £275 N244 money back, the CCJ removed and the original claim to be struck off?

I'm happy to take them all the way, its been a long time living this I'm not shying anyway from anything 

I know you told me last year "I approached BW Legal and requested them to set aside the judgement but they wouldn’t, they made me fight."

I think I would engage and say summat like:


Dear Sirs,

WITHOUT PREJUDICE SAVE AS TO COSTS

Re: your ref xxxxxxxxxx

This sole cause of this CCJ boils down to the fact that the Claimant had the right address for me all along.  As such, the entire claim was wholly unreasonable from the outset.

Full costs will be claimed if this goes to a hearing, which at my hourly rate (plus the £275 fee already paid to the court) is going to be at least £xxx.

As well as demonstrating - with evidence - that your client knew and had acknowledged my correct address well before the claim was filed, I will show the court that I acted promptly and did my best to work to mitigate and avoid that £275 cost.

As you know, I approached BW Legal several months ago in 2022 and requested that your client consented to set aside the judgment but you/they refused outright, and made me fight.  The £275 is wholly your client's liability and I require this fee to be covered as well as the £100 to put this matter to an end.  I do not accept a consent Order with paragraph 6 'no order as to costs'.

I will consider a fresh draft from you which rights this wrong and does order the £275 to be paid by the Claimant to the Defendant, and with the Claimant also meeting the £100 cost of the court to approve the Order.

This has value to your client in view of the significant reduction in costs that they would otherwise face at a hearing, and in view of the fact that an Order now will enable the Claim to be re-served far sooner.

I believe it is reasonable to expect a substantive response within ten working days of this email.

Yours faithfully 


BUT see what @Johnersh says.  His wording is better for such matters and he may suggest you send an alternative Draft Order back to them.

Harvez63

Thank you both and thank you @Coupon-mad for that draft response! 

Is there no milage in asking them to strike the original PCN as well? 

Hopefully @Johnersh will be along shortly with his wonderful wording 

Coupon-mad

They won't drop the the original PCN (yet) so there's no point trying for that.  It will be defendable, like they all are, so it doesn't matter that once the CCJ is set aside the claim might continue, and you can defend it.

Johnersh

This is simple isn't it?

If the o/p has made an application to set aside s/he has paid a fee and a hearing is listed. (Pls confirm the date).

If the respondent to the application (the ppc) agrees to the application, then a consent order can be prepared, but it obviously doesn't require a fee as one was paid with the application. They have completely misunderstood or misrepresented the position. This is an order to compromise your application. You're clearly not going to do that on terms unacceptable to you. They've simply sent a generic consent order as though you'd never applied for the set aside. 

I have no issue with the other/above comments, save that I'd supply the consent order you propose that they do sign. That's neater. The response can be more matter-of-fact and less emotive too. 

Key points:

1. Your application clearly sets out why the claimant was never entitled to default judgment. They risk adverse costs at a hearing. 

2. You note that the ppc accepts the proceedings were never received, but in fact, the position is that you were never properly served. They risk strike out at a hearing. 

3. You afforded C the opportunity to agree terms prior to making the application. It now appears that they accept they are at significant litigation risk, given that your position has not changed. They will need to bear the costs of the application necessitated. 

4. Invite them to endorse your consent order (supplied) and to reimburse the costs of the application. 

If it proceeds to a hearing you will seek your costs of and occasioned by their unreasonable conduct of the litigation at the litigant in person rate and the costs of the application. 

Harvez63

@Johnersh date of hearing is Fri 17th of February 

So is the below suitable to send? hopefully I'm on the right course and I'm not misinterpretation any of this 


<Email Body>

Dear Sirs,

WITHOUT PREJUDICE SAVE AS TO COSTS

Re: your ref xxxxxxxxxx

My application clearly sets out why the claimant was never entitled to a default judgement and they risk adverse costs at a hearing. 

I note your comments regarding the claimant accepting proceedings were never received, but in fact, the claim was never properly served, this is not a case of not receiving proceedings, this is a breach of CPR 6.8 as outlined in my application. 

I offered the claimant to agree terms prior to making my application. As you know, I approached BW Legal several months ago in 2022 and requested that your client consented to set aside the judgment but you/they refused. The £275 is wholly your client's liability and I require this fee to be covered.  I do not accept a consent Order with paragraph 6 'no order as to costs'.

I invite you to endorse my consent order appended and to reimburse the costs of the application to put this matter to rest. 

<attachment>

It is ordered that:

1. The default judgement entered on 8th April 2022 be and is hereby set aside:

2. The entry in the Register of Judgements, Order and Fines be cancelled: 

3. The claim issued under number XXXXXX be struck out

4. The claimant pays the defendant the £275 for the set a side hearing on 17th Feb 2023.

Coupon-mad

I'd use Johnersh's exact words he put under 'key points' (with numbers) in the body of your email.

By not copying it exactly, you've lost the concise starkness of phrases like "They risk strike out at a hearing" as a standalone sentence.

And change the Draft Order at the top not to say 'received' but to say 'not properly served'.

And point out that it is surely the case that no £100 fee is required under these circumstances (as explained by Johnersh) which just looks like an attempt to mislead a consumer.

Harvez63

I want to get this right, I fear I'm getting confused, sorry I'm so tired today from insomnia keeping me up 

<Email Body>

Dear Sirs,

WITHOUT PREJUDICE SAVE AS TO COSTS

Re: your ref xxxxxxxxxx

1. My application clearly sets out why the claimant was never entitled to default judgment. They risk adverse costs at a hearing. 

2. I note that the claimant accepts the proceedings were never received, but in fact, the position is that I was never properly served. They risk strike out at a hearing. 

3. I afforded the claimaint the opportunity to agree terms prior to making the application. It now appears that they accept they are at significant litigation risk, given that my position has not changed. They will need to bear the costs of the application necessitated. 

4. I invite you to endorse my consent order (supplied) and to reimburse the costs of the application. 

<attachment>

It is ordered that:

1. The default judgement entered on 8th April 2022 be and is hereby set aside:

2. The entry in the Register of Judgements, Order and Fines be cancelled: 

3. The claim issued under number XXXXXX be struck out

4. The claimant pays the defendant the £275 for the set a side hearing on 17th Feb 2023.


I am really sorry to both of you if I missed the point, I'm not feeling myself today but want to get this issued so they have chance to respond before Friday 

1505grandad

A heads-up  -  notice how the word "Judgment" in this context is spelt (no middle "e")

Coupon-mad

3. The claim issued under number XXXXXX be struck out for want of service within 4 months.

4. The claimant do pay the defendant the wasted application fee of £275 and the hearing listed to take place on 17th Feb 2023 be vacated upon the court's approval of this Order.

5.  Should the claimant decide to pursue a fresh claim, it remains in their gift - as was always the case - to properly file and serve a fully particularised claim to the defendant's correct address.

Johnersh

The ppc will never agree to their case being struck out. You're not giving them a choice there - they may as well fight. 

The point is that a judge *could* order that the claim is struck and award higher costs. Naturally no-one can be sure what the court will order.

Thus the new draft order you send them at least gives the ppc the opportunity to pursue the claim after a set aside, but at the cost of doing things properly: so they'll need to pay the £275 and to agree to clear off the judgment. It's supposed to be a compromise for everyone.