CCJ set-aside. Now Small Claims & Draft Defence.

Johnersh

I agree that it is disingenuous to email the court with a "consent order" where the terms of that order have not been discussed/agreed. By begging the question as to whether the hearing will proceed is to risk misleading the court that the terms are wholly agreed.

It would be better described as the claimants draft order, with permission sought for them not to attend (if that is what they seek).

Given that the PPC now agrees that the judgment should be set aside, then the costs argument for the applicant's court fee ought to follow. That is the point I would have preferred to go back to the court with. Nevertheless, the hearing should now remain effective. 

There is at least one other example of this occurring. If lodging any complaint, the individuals should do so jointly/collectively with evidence. That is likely to be more effective and/or helpful to those investigating.

Castle

I thought that Elms Legal are "regulated" by CILEX.

Coupon-mad

SRA ID537827 | SRA Regulated

https://solicitors.lawsociety.org.uk/person/67740/edmund-jonathan-garvey-shoreman-lawson

Look what I found:

https://forums.moneysavingexpert.com/discussion/comment/79947739/#Comment_79947739

Updated in May 2023:

bridgefixer said:

I received a reply from CILEx Regulation regarding the misleading 'consent' order I reported. The one that was titled as 'consent order', started with the "Upon the Parties having consented and agreed to the terms set out below: -" and had my name typed under the points of order. 

They will be writing to them reminding them of the need to comply with their legal and regulatory obligations and the importance of ensuring that they take all reasonable steps to avoid any risk of the court being misled, including unintentionally.

So, keep reporting and maybe their clean up their act and/or face an actual enforcement if enough cases are reported. 

Khayman

Johnersh said:

Given that the PPC now agrees that the judgment should be set aside, then the costs argument for the applicant's court fee ought to follow. That is the point I would have preferred to go back to the court with. Nevertheless, the hearing should now remain effective. 

Do you think it's too late to go back to the court with this? If so would you mind suggesting some wording?

Or are more emails risking 'bothering' the court? 

Coupon-mad

Send a pm to @bridgefixer asking for a copy of the CiLex complaint outcome as you could use it to demonstrate a continuing, repeated course of misleading and vexatious conduct in litigation that permits of no reasonable explanation.

You then get full costs..

bridgefixer

Khayman said:

Do you think it's too late to go back to the court with this? If so would you mind suggesting some wording?

Or are more emails risking 'bothering' the court? 

In my case, I first informed the court about the misleading consent order and subsequently served and filed a document saying that I agree for a set-side, but I wanted to claim to be thrown out and costs be ordered. This was therefore included in my trial bundle. 

However, it did not have much influence in the outcome. The dude representing Elms knew nothing about the case and said he was instructed to make these three points. He had no mandate or willingness to change anything. 

The Judge set the CCJ aside and asked the claim to be served within 14 days for the process to continue from there. Costs were to be ordered later, but, in the end they, were not because the claim was discontinued right before the final hearing.

They will keep the claim alive and try to make you pay & settle it, but there is no money for them if they proceed all the way to the final hearing. If you have a strong defence and win, they will have to pay. If you lose, they will end up no richer when the claimed sum and costs would cancel each other out, and going to the hearing involves prep and costs.  

Therefore, try to persuade the judge to order your application costs at this stage, or order them become payable if the claimant discontinues the claim before the hearing where the merit of the claim and costs would be judged and ordered. You can argue this to save everyone’s time and money. In particular this would avoid wasting the court's time and resources, should there ever be need to make a separate claim or application only for having such straightforward standard costs ordered. 

You can read more about my experiences here: 
https://forums.moneysavingexpert.com/discussion/6400408/default-ccj-vcs-used-wrong-address-even-if-i-emailed-them-the-correct-one

Le_Kirk

To try to counteract the tactic of claimants discontinuing, this is often used: -

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))."

... and we used to put this in the Draft Order: -

Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2* shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £275 plus the Defendant's costs for attending the hearing.

*Paragraph 2 - costs to be reserved

All of the above can be found by reading the second post of the NEWBIE sticky

bridgefixer

Here you can find my complaint regarding misleading 'consent' orders here along with with CILEx Regulation's response. I also added it to my thread.

https://www.dropbox.com/scl/fo/a10o2s2usrq75yjpgmlyf/h?rlkey=gr4ys46k0qdt83z3hrguul3yy&dl=0

Khayman

Hi all.
Going over my notice of hearing again and was hoping someone might be able to confirm my understanding of it. Let me know if it's too small to read and I'll paste the text instead.

So I take it that I am both the Applicant AND the defendant? However as I am not legally represented, I do NOT have to prepare a hearing bundle?
I was planning to print everything I sent with my application to take anyway (witness statement, draft order, exhibits containing proof of address and bailiff letter etc.). As well as the email from ELMS with the misleading 'consent order'.
Is that enough?
I have assumed ELMS Legal/VCS won't bother to turn up so based on the spurious 'consent order' also including setting aside the CCJ I am pretty confident I will get that af the very least. I'll also argue for fee to be paid to me and if the judge says they'll allow the claim to go to small claims, ask it be stipulated that the fee will still be repayable if the claim is abandoned late in the day as per bridgefixer's experience.
Is there anything more?

Appreciate the help and advice!

KeithP

That Notice of Hearing states...

It is the Claimant - Vehicle Control Services - who are instructed to prepare the bundle.