Marc Gander - The Consumer Survival Handbook


A 220 page introduction to all things consumer related by our own BankFodder.

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Patricia Pearl - Small Claims Procedure - A Practical Guide


An excellent guide for the layperson in how to use the County Court - a must if you are intending to start a claim.

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  1. #21
    Basic Account Holder Haunter Novitiate



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    Your friendís set aside application should be based on the fact that the creditor was not entitled to enforce the credit agreement because the creditor failed to comply with his request made to the creditor under section 77 consumer crediticon Agreements Act 1974, and sub-section 4(a) prohibits the creditor from enforcing the agreement as a consequence of his failure to comply with the section 77 request made to him.


    Even if the creditor can establish that the claim was validly served on your friend, this is irrelevant because the creditor was not entitled to enforce the agreement, and therefore the default judgment has been obtained by the creditor in contravention of s.77(4)(a) of the 1974 Act, and it cannot be allowed to stand.


    Your friend should therefore request that the default judgment be revoked under CPR 3.1(7), rather than set aside.


    These facts and the law is all that is required to be set out in the N244icon application.


    CCA 1974:

    77 Duty to give information to debtor under fixed-sum credit agreement.E+W+S+N.I.
    (1)The creditor under a regulated agreement for fixed-sum credit, within the prescribed period after receiving a request in writing to that effect from the debtor and payment of a fee of £1, shall give the debtor a copy of the executed agreement (if any) and of any other document referred to in it, together with a statement signed by or on behalf of the creditor showing, according to the information to which it is practicable for him to refer,ó
    (a)the total sum paid under the agreement by the debtor;
    (b)the total sum which has become payable under the agreement by the debtor but remains unpaid, and the various amounts comprised in that total sum, with the date when each became due; and
    (c)the total sum which is to become payable under the agreement by the debtor, and the various amounts comprised in that total sum, with the date, or mode of determining the date, when each becomes due.

    (4) If the creditor under an agreement fails to comply with subsection (1)ó
    (a)he is not entitled, while the default continues, to enforce the agreement

    Haunter


    By the way, when a judgment creditor applies for a charging order, he is granted an interim charging order as a matter of 'rubber stamp' job, he gets the interim charge automatically.


    Your friend needs to make the application (N244icon) I referred to above and seek to have the default judgment revoked (see facts and law above in my earlier post).


    The interim charging order will be made a final charging order if your friend is unable to defeat it!


    No time to hang around, concentrate and focus on the important stuff first - the N244 application and then start preparing the response objecting to the charging order!


    Haunter

    Another point is this: if the creditor now complies with this further s.77 CCA Requesticon, his compliance cannot be applied retrospectively to the default judgment he obtained, because at the time he obtained it he was in default and not entitled under s.77(4)(a) to enforce the agreement.


    The court was deceived and mislead by the creditor as to the factual position before it in relation to his entitlement to enforce the agreement!


    Haunter


  2. #22
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    Default Re: charging order

    urm....

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  3. #23
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    Default Re: charging order

    urm? Hello dx, are you alright?


    Haunter


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    Default Re: charging order

    thank you
    but your logic is not
    a CCJ trumps any need to provide any enforceable paperwork after the event.

    post 17 needs answering lilly did you ring northants today

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  5. #25
    Basic Account Holder Haunter Novitiate



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    Default Re: charging order

    Oh yes I know dx.

    But the interests of justice trumps all things.

    The op is wasting time with requesting a copy of the agreement.

    It appears to be the case that the default judgment was awarded at a time when the creditor was not entitled to enforce the agreement because of his failure to comply with the CCA Requesticon.

    So, even if the op's friend had acknowledge the claim and filed a defence against it, if the matter went on to a full hearing/trial, the fact of the creditor's non-compliance with the cca would have been made known to the court and the court would have to strike out his claim on grounds of no entitlement to enforce.

    I hope that makes what I'm saying a bit more clearer.

    Haunter


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    Default Re: charging order

    I would doubt that would be sufficient for a set aside hearing.

    lets get the info from the court first eh...

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  7. #27
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    Default Re: charging order

    " Your friend should therefore request that the default judgment be revoked under CPR 3.1(7), rather than set aside. "

    Afraid not Haunter .....Applications under CPR 3.1(7) should be used to challenge Procedural Orders during the process not to set a side a final judgment.

    3.1(7) A power of the court under these Rules to make an order includes a power to vary or revoke the order.....

    Applications to reconsider procedural orders may not be treated the same as application to set a side a judgment.

    It may be useful during any Appeal process

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  8. #28
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    Default Re: charging order

    Thanks. Yes, I know what you’re saying, but in this case posted here there has not been a procedural error by the court.

    In this case, the court was not aware that the creditor was not entitled to enforce the agreement, had the court known that the creditor had not complied with the CCA Requesticon, it would not have awarded him any judgment, because s.77(4)(a) of the CCA 1974 prohibits the creditor from enforcing the agreement while he is in default of his obligation to comply with a CCA Requesticon made under s.77 of the 1974 Act.

    So, in reality, the court was deceived and mislead by the creditor in respect of his entitlement to enforce, this means that the process by which the creditor obtained judgment involved an abuse of process, this is material non-disclosure by the creditor.

    If these material facts had not been suppressed and concealed from the court, the court would not have awarded the judgment to the creditor because it contravenes the prescribed law, the statutory provisions of s.77 of the 1974 Act, and for these reasons the same court has the power to revoke the order under CPR r.3.1(7).

    The op’s friend should, in my opinion based on fact and law, set out these facts in the N244icon application and ask for the order to be revoked.

    Once the same court learns that the creditor was not entitled to enforce the agreement, it must revoke the order rather than just set it aside.

    There are a number of authorities on the point (CA and UKSC and HL) which confirm that a judge exercising parallel jurisdiction has the power to revoke an order under r.3.1(7) made by a same-level judge on grounds of material non-disclosure, for example.

    In this case here, we have material non-disclosure by the creditor, which is an abuse of process and interference with the administration of justice, and the statutory provisions of s.77 CCA 1974 preventing him from enforcing the agreement which justify the court revoking the order made against the op’s friend.

    For clarity, I am not ‘telling’ the op and the friend what to do, and I am not expecting the op and the friend to do anything, I am simply citing the law based on the facts of the case that the op has posted here, and what options are available in law based on those facts.

    If the facts posted here applied to my own personal case, then my application (N244icon) would be asking the court to revoke the order under r.3.1(7), or, in the alternative set the order aside, and the court will decide what order it will make based on the facts.

    It is of course entirely up to the op to decide what is the best course of action to take for her friend.

    Haunter


  9. #29
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    Default Re: charging order

    some things here are to be honest not adding up

    if recorded delivery of 2 cca requests were made.
    then evidence of those and the addresses used should exist?

    then the solicitors 'kearns' said i did not include a postal order which i did

    but the long and short of it is i sent a CCA Requesticon it was ignored

    so they did write back not ignored them...

    sent 2 to link financial they never opened the letters simply returned via royal mail unopened as i sent them may and june last year recorded delivery

    lastly what is the debt and what type???

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  10. #30
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    Default Re: charging order

    Quote Originally Posted by Haunter View Post
    Thanks. Yes, I know what you’re saying, but in this case posted here there has not been a procedural error by the court.

    I know its a default Judgment...thats why you shouldn't use CPR 3.1(7) which you advised

    In this case, the court was not aware that the creditor was not entitled to enforce the agreement, had the court known that the creditor had not complied with the CCA Requesticon, it would not have awarded him any judgment, because s.77(4)(a) of the CCA 1974 prohibits the creditor from enforcing the agreement while he is in default of his obligation to comply with a CCA Requesticon made under s.77 of the 1974 Act.

    Thats why all claims must be acknowledged and defended then the history can be provided...assuming you receive the claim

    So, in reality, the court was deceived and mislead by the creditor in respect of his entitlement to enforce, this means that the process by which the creditor obtained judgment involved an abuse of process, this is material non-disclosure by the creditor.

    See above

    If these material facts had not been suppressed and concealed from the court, the court would not have awarded the judgment to the creditor because it contravenes the prescribed law, the statutory provisions of s.77 of the 1974 Act, and for these reasons the same court has the power to revoke the order under CPR r.3.1(7).

    They were not suppressed or concealed...a court does not even see the claim in a default judgment..therefore no procedural errors or orders were made to revoke....rubber stamped Judgment (Judgment is not an Order its the conclusion to the process )

    The op’s friend should, in my opinion based on fact and law, set out these facts in the N244icon application and ask for the order to be revoked. (see above)

    Once the same court learns that the creditor was not entitled to enforce the agreement, it must revoke the order rather than just set it aside. I think you need to revisit CPR 13 to understand the difference between a set a side and an Appeal

    There are a number of authorities on the point (CA and UKSC and HL) which confirm that a judge exercising parallel jurisdiction has the power to revoke an order under r.3.1(7) made by a same-level judge on grounds of material non-disclosure, for example. Yes in Appeals...not set a sides.

    In this case here, we have material non-disclosure by the creditor, which is an abuse of process and interference with the administration of justice, and the statutory provisions of s.77 CCA 1974 preventing him from enforcing the agreement which justify the court revoking the order made against the op’s friend.

    Not required to when its a default judgment...only the above can be questioned if the defendant defends the claim and process of trial then follows

    For clarity, I am not ‘telling’ the op and the friend what to do, and I am not expecting the op and the friend to do anything, I am simply citing the law based on the facts of the case that the op has posted here, and what options are available in law based on those facts.

    You are ...otherwise you would not of posted this theory and your misunderstanding of the CPR and Legal Process

    If the facts posted here applied to my own personal case, then my application (N244icon) would be asking the court to revoke the order under r.3.1(7), or, in the alternative set the order aside, and the court will decide what order it will make based on the facts.

    As already stated you cant revoke a judgment...you set it a side to allow a defendant to challenge the claim from its inception so CPR 3.1(7) would fail and only CPR 13 should be used in this process

    It is of course entirely up to the op to decide what is the best course of action to take for her friend.

    Haunter
    Regards

    Andy


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  11. #31
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    Default Re: charging order

    I stand by what I have said, and I am correct in law, there is no misunderstanding on part.

    Collier v Williams [2006] EWCA Civ 20, on CPR r.3.1(7), at paragraphs 39 and 40 the appeal court held:

    [39]We now turn to the third argument. CPR 3.1(7) gives a very general power to vary or revoke an order. Consideration was given to the circumstances in which that power might be used by Patten J in Lloyds Investment (Scandinavia) Limited v Christen Ager-Hanssen [2003] EWHC 1740 (Ch). He said at paragraph 7:-
    "The Deputy Judge exercised a discretion under CPR Part 13.3. It is not open to me as a judge exercising a parallel jurisdiction in the same division of the High Court to entertain what would in effect be an appeal from that order. If the Defendant wished to challenge whether the order made by Mr Berry was disproportionate and wrong in principle, then he should have applied for permission to appeal to the Court of Appeal. I have been given no real reasons why this was not done. That course remains open to him even today, although he will have to persuade the Court of Appeal of the reasons why he should have what, on any view, is a very considerable extension of time. It seems to me that the only power available to me on this application is that contained in CPR Part 3.1(7), which enables the Court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ. It is therefore clear that I am not entitled to entertain this application on the basis of the Defendant's first main submission, that Mr Berry's order was in any event disproportionate and wrong in principle, although I am bound to say that I have some reservations as to whether he was right to impose a condition of this kind without in terms enquiring whether the Defendant had any realistic prospects of being able to comply with the condition."
    [40]We endorse that approach. We agree that the power given by CPR 3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under 3.1(7).

    In the case posted here by the op, the court was deceived and mislead into believing that the creditor was entitled to enforce the agreement, he was not, in fact, entitled to enforce, the court would be justified in revoking the ccj under r.3.1(7) based on the above qualified judgment of the Court of Appeal, which is just one in a number of authorities which confirms the principle.

    Haunter


  12. #32
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    Default Re: charging order



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  13. #33
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    Default Re: charging order

    Quote Originally Posted by Haunter View Post
    I stand by what I have said, and I am correct in law, there is no misunderstanding on part.

    Collier v Williams [2006] EWCA Civ 20, on CPR r.3.1(7), at paragraphs 39 and 40 the appeal court held:

    [39]We now turn to the third argument. CPR 3.1(7) gives a very general power to vary or revoke an order. Consideration was given to the circumstances in which that power might be used by Patten J in Lloyds Investment (Scandinavia) Limited v Christen Ager-Hanssen [2003] EWHC 1740 (Ch). He said at paragraph 7:-
    "The Deputy Judge exercised a discretion under CPR Part 13.3. It is not open to me as a judge exercising a parallel jurisdiction in the same division of the High Court to entertain what would in effect be an appeal from that order. If the Defendant wished to challenge whether the order made by Mr Berry was disproportionate and wrong in principle, then he should have applied for permission to appeal to the Court of Appeal. I have been given no real reasons why this was not done. That course remains open to him even today, although he will have to persuade the Court of Appeal of the reasons why he should have what, on any view, is a very considerable extension of time. It seems to me that the only power available to me on this application is that contained in CPR Part 3.1(7), which enables the Court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ. It is therefore clear that I am not entitled to entertain this application on the basis of the Defendant's first main submission, that Mr Berry's order was in any event disproportionate and wrong in principle, although I am bound to say that I have some reservations as to whether he was right to impose a condition of this kind without in terms enquiring whether the Defendant had any realistic prospects of being able to comply with the condition."
    [40]We endorse that approach. We agree that the power given by CPR 3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under 3.1(7).

    In the case posted here by the op, the court was deceived and mislead into believing that the creditor was entitled to enforce the agreement, he was not, in fact, entitled to enforce, the court would be justified in revoking the ccj under r.3.1(7) based on the above qualified judgment of the Court of Appeal, which is just one in a number of authorities which confirms the principle.

    Haunter
    Again a Judge has not even viewed the claim...its a default judgment.....3.1(7) does not apply to setting a side a default judgment in a county courticon.

    Anymore more responses will be removed and moved to a new threadicon to avoid hijacking and clogging this thread.

    Andy

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