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Default CCJ after Acknowlegement of service late by 1 day

The situation:
  1. Claim issued by DCB Legal on the 13th December
  2. Didn't arrive in the post until 20th - when we were away
  3. We arrived back 31st but didn't check post until 3rd December
  4. Saw the claim and realised we might be late with the AoS so filed it straight away with MCOL
  5. Prepared the template defence from this site and sent to CNBC
However there has been a default judgement recorded and the MCOL transaction history shows:
  • Your acknowledgment of service was submitted on 03/01/2024 at 15:46:39
  • A judgment was issued against you on 03/01/2024 at 19:09:31
  • Your acknowledgment of service was received on 04/01/2024 at 08:05:55
Question: if the issue date is 13th December and the service date is + 5 days  = 18th December then 14 days after that is the 1st Jan, however there are 2 bank holidays (xmas day and new years day) between those dates - do those count? if so then the deadline for AoS should be the 3rd January at 4 pm correct?

Next steps

File a N244 to set aside the CCJ tomorrow at the local county court :
With witness statement regarding being away and also outline the planned defence (which will be the template defence from here)

Does anyone know if we should also state that the CCJ was issued too early? or were we actually late?

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Comments

  • KeithP
    KeithP Posts: 37,113
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    Question: if the issue date is 13th December and the service date is + 5 days  = 18th December then 14 days after that is the 1st Jan, however there are 2 bank holidays (xmas day and new years day) between those dates - do those count? if so then the deadline for AoS should be the 3rd January at 4 pm correct?
    Sadly, your calculation is wrong.

    With a Claim Issue Date of 13th December, you had until 4pm on Tuesday 2nd January to file an Acknowledgment of Service.

    That's five days for service, plus fourteen days gives us Monday 1st January.
    As 1st January was a Bank Holiday, one is allowed until 4pm the next working day, i.e. Tuesday 2nd January, to complete that filing.
  • claimfighter
    claimfighter Posts: 12
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    Understood regarding the dates
    Next question:
    The Mcol transaction history shows we submitted the AoS shortly before the judgement was issued but the AoS was only recorded as received the next day:
    • Your acknowledgment of service was submitted on 03/01/2024 at 15:46:39
    • A judgment was issued against you on 03/01/2024 at 19:09:31
    • Your acknowledgment of service was received on 04/01/2024 at 08:05:55
    is this normal? could it be used as one of the reasons to request the CCJ be set aside?

  • Johnersh
    Johnersh Posts: 1,289
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    It's unfortunate. The rules say if ANY defence is filed prior to a default judgment being made, (so even if late and/or with C having requested judgment, but before that is ordered) judgment cannot be made.

    But the o/p served an acknowledgement. So there is evidence of acting promptly, but that's technically it (at least as far as I interpret the rule). That means the acknowledgement was late and there was no defence on file, so it is potentially legitimate to enter judgment.

    Bit Draconian. So apply to set aside  - or seek a consent on the basis that likely to be set aside since acknowledged prior to judgment. Clearly not a case where D was ostriching.
  • claimfighter
    claimfighter Posts: 12
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    Update:
    I've prepared the N244 with draft order and WS.

    Phoned the local county court to file it but keep getting fobbed off and told to use CNBC email address as there is no facility to accept N244 there!
    This doesnt sound right - should we just file with CNBC?  would it be quicker to use MCOL to file the N244?
    We're trying to get the N244 processed asap before enforcement proceedings start on the CCJ
  • Coupon-mad
    Coupon-mad Posts: 129,425
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    edited 11 January at 12:14PM
    We've never used MCOL to file a N244.

    Hmmm I think the CNBC was maybe wrong and I don't think it was right to enter judgment. Using the 2020 Rules wording change, it seems to me that once you had filed an acknowledgement (even a late one), the date to defend had been extended and had not expired.  See this authority:

    The judgment of Mr Justice Choudhury in  MB v RBG [2020] EWHC 3022 (QB)

    https://www.civillitigationbrief.com/2020/11/12/acknowledgment-of-service-served-late-but-judgment-irregular-and-was-set-aside-a-reminder-thta-the-rules-have-changed/

    1. Applying these provisions, it is clear that the defendant is wrong to say that the AoS was filed in time; it was not. As Ms H acknowledges in her evidence, by sending the AoS by DX on 23 October 2019, it would have been received by the Court Office the following day, which was one day out of time. However, that does not help the claimant because it is clear that the judgment in default was itself wrongly entered. That is because, as at the date of entering judgment, i.e. 30 October 2019, the AoS had on any view been filed. The conditions in CPR12.3(1), namely that the defendant has not filed an AoS and that the relevant time for doing so had expired, were not satisfied. The time for filing had expired but an AoS had been filed.

    2. In these circumstances, pursuant to CPR 13.2, the Court has no option but to set aside the default judgment. I therefore do precisely that. The judgment in default is set aside and is of no effect.


    THE REASON FOR THE DECISION

    The rules changed on the 6th April 2020, that was discussed in a post available here. 


    https://www.civillitigationbrief.com/2020/02/05/new-rules-on-entering-a-default-judgment-where-acknowledgment-of-service-or-defence-is-filed-late/

    "(1) The claimant may obtain judgment in default of an acknowledgment of service only if at the date that judgment is entered 

    (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.
    (2) Judgment in default of defence may be obtained only –
    (a) where an acknowledgement of service has been filed but at the date on which  judgment has been entered a defence has not been filed;
    (b) in a counterclaim made under rule 20.4, where at the date on which judgment is entered a defence has not been filed,
    and, in either case, the relevant time limit for doing so has expired"
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  • Johnersh
    Johnersh Posts: 1,289
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    Thanks @Coupon-mad I agree having reviewed that post from Gordon's blog.
  • claimfighter
    claimfighter Posts: 12
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    We've file the N244 this morning via CNBC email (hopefully they wont be too slow) and paid the fee (1 hour on the phone)
    The WS references the point above:
    I proceeded to promptly file the required Acknowledgement of Service which the MCOL portal. This is recorded by MCOL as being submitted on 03/01/2024 at 15:46:39
    5. I then promptly drafted my defence and sent that back to CNBC and upon checking the MCOL website saw that the default judgement had been issued on 03/01/2024 at 19:09:31 which is after the Acknowledgement was submitted. This satisfies CPR 13.2(a) for the default judgement to be set aside.
    but doesnt reference the decision you highlighted  - how do we draw attention to this after filing? can we introduce this at the eventual hearing? 
  • claimfighter
    claimfighter Posts: 12
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    just realised I've referenced the wrong section in the WS CPR 13.2(a)  should have been CPR 13.1(a) 

    it was late at night....
  • Coupon-mad
    Coupon-mad Posts: 129,425
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    edited 11 January at 1:43PM
    just realised I've referenced the wrong section in the WS CPR 13.2(a)  should have been CPR 13.1(a) 

    it was late at night....
    Sort it all out (including that authority I gave you) by filing and serving a skeleton argument (the legal argument) a week or two before the hearing.

    Attach the transcript not a link. And not the CLB article!  The court transcript itself.
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  • claimfighter
    claimfighter Posts: 12
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    What will happen regarding enforcement now that the N244 is filed - will that be halted or is there a chance that we will still be pursued while the admin going through the system?
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