I've got judgement by default - For the second time !!!**WON**

[car2403]

If you leave off for 28 days they cant apply for a set aside.

 

Where is this stated? Is it in CPR, or is there some caselaw or statute on it?

[car2403]

Surely they can't be this incompetent?

 

Is that the Court, or the Defendant?

 

My understanding of this situation is that, as the address for service, (head office, or the likes) is usually a secure building - this means that the County Court Bailiff can't get access and they don't have a right to force access. (Well, not yet!)

 

They write to the Defendant asking for payment. If they don't pay, they write again and tell them when they intend to visit. If they don't pay, they visit at the time stated. (and don't get access) At this point it's a toss up as to whether they send the Warrant back as unexecuted, in which case they **may** charge you a fee to execute it again. This circle continues until you give up, run out of money because of Court fees, or the Defendant has the decency to acknowledge the Judgment and pay up.

[car2403]

I have O2 applying for a set aside of a Judgment by Default - claiming they didn't receive the Court Claim and were CLOSED over the Christmas/New Year period!

 

Jeez!

 

http://www.consumeractiongroup.co.uk/forum/data-protection-default-issues/111666-car2403-o2-wescot-dca.html

[car2403]

"are they likely to achieve a set aside after 28 days of the default judgement being awarded?"

 

No.

 

"Is there any rule that governs the late application for a set aside?"

 

Yes, the defendant has 28 days to apply.

 

Whats this based on, noomill, as I'm in this exact same position with O2 - an application hearing has been set to hear the Judgment set aside request, so I REALLY need to understand the precedant for saying they can't request this after 28 days. (6 weeks in my case)

[car2403]

Contact the Defendant and ask them to fax it to you - they should have served it on you when sending it to the Court.

[car2403]

Contact the Defendant and ask them to fax it to you - they should have served it on you when sending it to the Court.

 

Did you?

 

I have never been to a set aside hearing so would like to hear from anyone who has, or anyone who knows what I will need to take.

 

I was simply going to take a witness statement detailing why I object to the set aside, along with any accompanying evidence, i.e. log of phone calls, timetable of events, copies of relevant letters - is this right ???

 

Although I expect the set aside to be allowed, does anyone have any amazing ideas to strengthen my objection ???

 

BAE

 

Sounds right to me.

[car2403]

I think the point of setting aside Judgment is to test whether they have a real prospect of defending the case - I've recently been to a summary judgment hearing with HFC Bank, which is probably similar to a set aside hearing in practise, where the Judge said that summary judgment wouldn't be granted if a defence was entered as it would take longer to hear summary judgment arguments than it would to hear the full case at trial, which is the only place a defence should be tested. (Her opinion)

 

Applying this here, if they say they have a real prospect of defending so judgment should be set aside, I can't realistically see a Court not setting it aside - I can't see how they can test a defence in a set aside hearing and argue that is in the interests of the overridding objectives. (Cost saving, time saving for the Court, etc)

 

I have a set aside hearing with O2 on 14 April, so I'm in the same boat as you BAE. Have to see what happens and if it's the same for both of us...

[car2403]

I still don't know if set asides are more or less a formality or not, but I've got a bad feeling that they usually are.

 

This might help;

 

Debt Factsheets - How to set aside a Judgment in the County Court

 

Looks like a formality to me, then... :o

[car2403]

On the other hand Car, is this not aimed at us the LIP people (Litigants in person) and not big Companies who are well aware of the Law and the ways to respond to the Courts?

 

I cannot see how a Credit Card/ or Bank can say " we can defend this..." be allowed to set aside when they made no effort to respond to the Court or the Claimant? I believe that if you can show the Court at any set aside hearing that you have made every effort to contact and resolve the claim then surely they cannot grant such an application? That's why records of letters and phone calls are very important...

 

My opinion obviously...

 

Penfold

 

I agree, Penfold - like O2 saying they didn't get the claim form because they were "closed over the Christmas period"...

[car2403]

High Court Bailiffs have the right to force entry to business premises, County Court Bailiffs don't.

[car2403]

will the option of using high court bailiffs be available?

 

If the claim, once Judgment is entered, is transferred to the High Court, then yes.

 

You have to issue the Warrant of Execution in the High Court, for the High Court Enforcement Officers (High Court equivilent of a County Court Bailiff, give or take) to Execute the Warrant. Depending on the amount of the claim, the transfer to the HC will be done free, but you still need to pay the standard Court fee for issuing the Warrant. More here;

 

Marston Group

 

The free transfer service is here;

 

Breeze and Wyles, conveyancing, commercial employment and family Solicitors, Hertfordshire

 

(I'm hoping the mods don't decide this is a commercial advert, but I don't think it is - it's just a valuable bit of info on a service that anyone with Judgment should consider, especially seeing how ineffective County Court Bailiffs are against Commercial Businesses )

[car2403]

Why wait once you have the Judgment? Send the Bailiffs in immediate, IMHO.

 

The reason the original Judgment was set aside was that it wasn't enforced immediately, also IMHO - if you can seek enforcement when you receive it, any attempt to set Judgment aside again will result in them being liable for your costs from this point forward.

 

It might be worth getting some expert advice from CAG (on, or offline from the thread) regarding the legal reasons why? (Posted referred to the site admin team, just in case)

[car2403]

Morning tifo

 

My, that’s cheered me up no end and there I was feeling quite chirpy this morning. No, of course you’re correct but it’s slightly more complicated than I have, at first, made it appear mainly because I didn’t think that this thread was an appropriate place to lay out the whole issue.

 

I have not attended on one occasion but the other party has never attended at all, my failure to comply with directions was due to inexperience rather than contempt and I think that the judge understood that. On the whole I have found them, judges that is, to be quite accommodating towards me although it is obvious that they consider that I have a fool for a client and they cannot understand why I’m not paying some lawyer to help me.

 

Don't lose faith just yet, brother!

 

Finding CAG and learning of your legal rights is a decent enough explanation as to why you now feel you can face this issue head on, whereas previously you've "buried your head" because you didn't understand the issue, IMHO.

 

It would be worth starting your own thread, outlining what has/hasn't happened with you to date, then getting some expert CAG advice from the likes on here - that way, you'll get detailed information on how to proceed and win your case!

 

Bring it on, I say...

[car2403]

Can anyone confirm that you're allowed to charge £9.50 per hour for preparation time, regarding each part of my claim? I think I read this figure somewhere but I'm not sure if it is something enshrined in CPR, or just a reasonable, suggested amount.

 

Here you go;

 

CPR Part 48.6(4)(b) and Practice Direction 52.4;

 

CPR 48.6(4)(b);

where the litigant cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in the practice direction

 

SECTION 52 LITIGANTS IN PERSON: RULE 48.6...

52.4 The amount, which may be allowed to a litigant in person under rule 46.3(5)(b) and rule 48.6(4), is £9.25 per hour.

[car2403]

I'm not sure why you haven't tried to enforce the Judgment, rather than waiting for this set aside application to come through?

 

It would have put you in a much stronger position when trying to recover costs at the set aside hearing.