3rd N244 submission for CCJ set-aside request - help appreciated!

kalifire

I'm in a long winded struggle to try and set aside a County Court judgement that was registered against me in April last year. I have so far sent two N244 forms to the court and followed each up with a letter which was put before the judge asking for the refusal to set it aside to be reconsidered. On each occasion the judge has again refused.

The debt is not your average 'default loan' or 'overdrawn bank account'. It concerns an overpayment from an employer. I finished work for the claimant and almost immediately moved address. I didn't update the claimant with a new address because my service for them as an employee had come to an end, and it wasn't therefore necessary. However, the following month, they overpaid me. I was not aware of this. In May last year, the occupiers of my previous address told me that High Court Enforcement Officers had been round and served a seizure notice. This was the first time I was aware of the debt at all.

I subsequently filed an N244 form within 24 hours and sent a copy to the bailiffs. To my knowledge it is still on hold pending resolution from my dispute. Now, prior to submitting the first N244 I contacted the Insolvency Helpline, Citizens Advice and the National Debtline. They all gave me consistent advise that if I could prove (as I did, by way of tenancy agreement) that I was not living at the address to which any summons was sent, and could demonstrate (as I believe I did) that there was no reasonable requirement for me to provide a consistently updated address to the claimant, and assure the judge that had I known about the debt I would have paid it, then it is extremely likely the ruling will be made in my favour. I have absolutely no idea why it hasn't been and am very frustrated at what I see as a series of perpetual misjudgements.

One factor is that I have been based overseas since last July. I have therefore been unable to attend any hearings that have been set. On the first N244 form, a hearing was set which I asked remotely, to be cancelled. The second N244 I ticked the box 'no hearing'. Could that prejudice the judgement? It surely doesn't determine the particulars of my claim.

The latest is this, and to bring me to my point, this is what I need help with: a letter I sent requesting a reconsideration of the last judgement made against me has just been refused. I have gotten the court to agree that I can submit yet another N244 form and they will waive the fee, because I have paid £150 already and haven't even had a hearing. Since it will cost me nothing but a recorded mail envelope, I am going to do it again, although all I can really do is just re-phrase information I have already provided the court. Is there a particular way I should make clear my position? I have a funny feeling that the judge in question isn't really bothering to look properly at my form because on doing so, it's obviously not your bog standard CCJ, so my N244 just gets rejected. This time, I am in the UK and will be making it clear that if what I have put on the form isn't enough for the judge to reach a verdict, I will be happy to attend a hearing. Do you think that will be enough? Or should I make some text bold, number my points and make things very, very obvious to the judge?

Also, if anyone knows any statute law or precedents set that I could quote, that would be very helpful. As it is, I'll attach another copy of my tenancy agreement showing clearly that I wasn't at the property when I was served. I'd imagine it will come down to whether or not I have a duty to inform the claimant of my new address, but would you telephone an ex-employer to let them know where you're living now? It doesn't seem reasonable to me.

kalifire

A little update to this....

On advice from the enforcement office of the county court, I am submitting the N244, as they said it would be the best move and even agreed to waive the cost involved. The particulars of claim are the following:

"1. I was not resident at the address to which any correspondence relating to this matter was sent. I had moved out of the property in September 2005. Please see the attached tenancy agreement as evidence of the address at which I was resident during the period of the judgement. Consequently, I was completely unaware of this entire matter until after the judgement had already been made.

2. The claimant is a previous employer of mine and the alleged debt occurred after I had finished working for them. I believe this fact to be relevant as the nature of my relationship with the claimant is central to my assertion that there was no duty or obligation for me to update the claimant with my new address. To my knowledge, there is no lawful requirement for any individual to inform previous employers with details of their current residence.

3. The alleged debt occurred directly through the administrative failings of the claimant, in respect of an oversight on their part that resulted in my name not being removed from their payroll, as it should have been when I stopped working for them. The sum in question is subsequently not covered by any law relating to credit, and at no time did I request or consent to the sum in question being paid to me.

4. Had I been aware of any pending court action, I would have disputed the legitimacy of this 'debt'. I would certainly have submitted a defence in court were I aware of the matter. On the decision of the court to set-aside the judgement, I would seek to correspond directly with the claimant concerning this with a view to reaching a mutual agreement.

5. Immediately I became aware of this matter, I acted without delay and applied for the set-aside of the judgement. I have previously been unable to attend any hearing relating to this due to residing overseas. I am now able to attend any hearing and should the evidence on this application be insufficient for a judgement to be made, I am willing and able to attend in person.

6. Should the court determine to set-aside the judgement, I also ask the court to consider suspension of the High Court action (ref: ********)."


Would you suggest I should add/delete/amend anything from this? Does it sound a convincing enough case for a judge to decide on setting the judgement aside?

rog2

your letter certainly looks excellent, kf.

Are you actually disputing the 'debt'? If not, then, perhaps, an offer of repayment of the initial amount by monthly instalments, that you can afford, would re-inforce your case?

CHR15

I had one set aside a few years ago. I was sent a bill to a previous address, I didn't receive it, the new tenant didn't tell me (or forward the bill) so I had no idea it existed.

My claim was similar to yours in that I had no idea anyone was chasing me for money (I wasn't, nor had any reason, to expect a bill for payment).

I was warned before submitting the form to the Court that I was to be ABSOLUTELY sure I could make the appearance at court.
It wasn't elaborated on but I got the feeling the Courts really do frown upon anyone instigating a Court case but can't be bothered attending. Perhaps you got the courts back-up by not going (they are only people after all)

Secondly, I had no knowledge of anyone chasing me for payment, you, on the other hand, received money into your bank account.

Surely you knew it had been paid in error to you by your previous employer.

My guess is, the Judge thinks that way too. That you took the money and kept quiet, but now you are shouting to the Courts for help when they tried to take it back again.

Good luck with it though


{edit}
One of the key facts in my application to the Courts was that I did not receive the CCJ within the 30 day limit you have. My memory is a bit grey now but IIRC if you pay within 30 days of the CCJ, it is automatically Set Aside, if you pay outside the 30 days, it will only be Settled.

My main focus was that IF I had received it within the 30 day limit I WOULD have paid immediately. The Judge took about 2 minutes to hear me out and was more than happy to Set It aside (Mine was against a Solicitor who couldn't be bothered turning up for the hearing)

kalifire

I became a student almost immediately on leaving the employer though, and as such I opened a new (student) account and stopped using the old one. I did wonder why I had more money in the old account then I thought I had when I checked up on it months later, but didn't look back to find out that I'd received an overpayment in error. Since I shouldn't have received the overpayment, I reasonably presumed I wasn't going to get it.

Do you think I ought to include that in my application?

rog2

I have sent a pm to penguin83 asking her to look at your thread. I believe that she works for the Courts Service and has given excellent advice to other posters in similar situations to you.

penguin83

Hi there Kali. The letter you have written seems fine and anything else you feel is relevant can be added.

An application to set aside a judgment needs to have a hearing so a judge would be unable to deal with your application without one. In your letter you can ask for a further 10 minute hearing to be set for you to attend

The other thing that you can consider attaching is a defence. Are you admitting that you owe the money or are you intending to defend it. If you are intending to defend you can attach a copy of a draft defence for the judge to read.

As an aside if you have paid 2 lots of the £75.00 court fee and havent been given a hearing ie the judge has dealt with it without one then it is an ex parte application which has a £40.00 court fee so you can write to the court and ask them to refund you the difference.

I have a more thorough look through the thread a bit later andpost a reply that is written a bit better than this one! x x

kalifire

Thanks penguin, and rog for pm-ing about this thread.

Whether I am willing to pay this or not is something I haven't decided on yet. I am being deliberately ambiguous on the matter in the application. My own personal view is that I don't think I'm liable for it legally, but I'm not sure how I'd go about proving that.

fatbelly

I must admit I thought that in order to get a set-aside you had to have a 'defence with a reasonable prospect of success'

I found this on 'This is Money'...

In some circumstances, the customer might be able to claim that they have 'altered their position' on the strength of the item that has been credited; for example, if they were expecting a similar sum to the amount that was wrongly credited and they have spent the money believing it to be rightly theirs. This point was upheld in Lloyds bank vs Brooks (1950), according to the British Bankers Association.

It points out that a customer cannot knowingly take advantage of an error, which the case Rhind v Commercial Bank of Scotland (1860) highlights as illegal.

I think you may have to show that you could have reasonably have expected a payment of around this sum.

kalifire

fatbelly wrote: »

In some circumstances, the customer might be able to claim that they have 'altered their position' on the strength of the item that has been credited; for example, if they were expecting a similar sum to the amount that was wrongly credited and they have spent the money believing it to be rightly theirs. This point was upheld in Lloyds bank vs Brooks (1950), according to the British Bankers Association.

It points out that a customer cannot knowingly take advantage of an error, which the case Rhind v Commercial Bank of Scotland (1860) highlights as illegal.

I think you may have to show that you could have reasonably have expected a payment of around this sum.

Ok, two points on this:

1. How does that issue impact the legality of the CCJ? The judgement was sent to the wrong address, which I have proven by way of providing a copy of my tenancy agreement at the time, and there was no reasonable grounds for me providing the claimant with my address details. The validity of the debt itself, which is what you're talking about, is a different argument altogether. To include both on one application muddys the waters as my defence of the debt itself isn't as water-tight as my application against the judgement.

2. Concerning the specific argument you raise here, just to clarify, you're suggesting that I would need to prove that I was expecting a similar amount of money at the time, so that I could argue that I believed the money was mine? Well I can't do that, but this is what actually happened: the overpayment was made into an account that I was no longer using, and as such I wasn't keeping a regular eye on. By the time I spotted the money, the overpayment was long past, and I had no idea where it came from. The central concern is surely that I didn't ask or consent for the money to be given, and had no duty or obligation to act immediately since it's deposit into my account was solely an error on part of the claimant.

rog2

kalifire wrote: »

Whether I am willing to pay this or not is something I haven't decided on yet. I am being deliberately ambiguous on the matter in the application. My own personal view is that I don't think I'm liable for it legally, but I'm not sure how I'd go about proving that.

In that case, you need to get some fairly quick legal advice, so that you can submit your defence. Have you spoken with CAB?