Can i override a consent order?

[fuzzyfuzzy]

Hi,

 

I have completed a consent order with Orange for a claim i made through the money claim online. They will have had this around 2 weeks by now. They have not confirmed anything with me and i have received no further documents.

 

When i go to the money claim online i can start proceedings and enter judgment by default as they clearly havent received the consent order yet.

 

I want to know if i can override the consent order by issuing judgment by default or not? I took a substantially lower payment to stop thios going to court and to get it sorted quicker by i think they are taking the mickey now.

 

Can anyone advise if i can do this please

 

 

cheers]

[fuzzyfuzzy]

Hi,

 

can anyone advise if this order is already legally binding? I want to get order by default but not if the consent order is already legally binding despite not being agreed by the courts

[chauvesouris]

A Consent Order is, as the name suggests, an Order of the court. As such, it can only be made by a court. Anything that has been exchanged between you and another party will only amount to a draft order and the court will only make it an order as part of proceedings; and then, only given the consent of both parties.

 

Clearly I don't know the detail of your case, but you should be aware that 2 weeks in court is a very short time. I would recommend you contact Orange and ask what is going on. I would imagine the most likely thing is that the draft order is being sent to the court for the order to be made - this may take a little while (but shouldn't take ages). The order will not be enforceable until it is made - so don't expect any payment until then. Did you agree terms in the draft order for when any payments have to be made?

 

If you have really had enough then the proper thing to do would be to write to the court to tell them you no longer consent to the order - so that it doesn't all cross in the post.

 

However, you can only apply for a default judgment if the defendant has failed to enter a defence or file an acknowledgement of service. I am not clear about why you are considering a Consent Order if they have failed in this respect - as you would be entitled to judgment in your favour (and it's hard to imagine how you could do better than that).

[fuzzyfuzzy]

Hi,

 

 

Thanks for your reply,

 

Whats basically happened is that after much wrangling they have finally agreed to remove the false 'default' they inserted on my credit file. They have been utterly awful throughout the whole thing.

 

I made an offer to settle out of court which they accepted, they instructed their solicitors to issue a consent order which i duly signed and returned. They initially acknowdged the claimyet have submitted no defence so on the moneyclaimonline portal i can now start judgment by default. this is only available as it has now passed the 28 days.

 

i would really like to sting them with a ccj and extra charges as a bit of payback for the years they have screwed my credit file (the settlement i made was only 10% of my costs as i just wanted the default gone) do you think that i can follow the moneyclaim and submit the judgment by default or can they claim the consent order is legally binding and get it overturned and awarded costs etc.

 

cheers

[chauvesouris]

The Consent Order is not enforceable in draft.

 

The only problem with getting a Default Judgment is that they may apply to have it set aside. Whether they will be successful will depend on whether they have a real prospect of successfully defending the claim and whether they've got a good reason for not having filed a defence in time. The latter will depend on how much they've missed the deadline by, but I think the court is likely to take your actions into account. If you have been genuinely negotiating with them and have arrived at an agreement then there are two consequences:- firstly that they will say they failed to file a defence because you had reached a settlement - secondly that they are likely to be able to submit the draft order as evidence. From an independent viewpoint, if you go back on the agreement now, it will look a bit like you have pretended to negotiate with them in order to get them to default. On balance I would say the judge is likely to set aside any default judgment gained like this - the consequences of which are that the case would be back on again and they would get a new date (usually 14 days) to file their defence.

 

PRO going for default: they might capitulate; it will cost them money if they do fight it; if you win, you win totally.

CON going for default: if they fight it you will probably have a full hearing on your hands; you may have to pay the extra costs (i.e. of the set-aside hearing) if you lose; you may lose.

 

To be honest, my sensible voice is saying take the money and run (even though inside I am saying "stick it to The Man"). Maybe it will help you to think of all the cost they will already have incurred - in preparing the draft order, and negotiating. They will not care about having a CCJ against them - and the costs of dragging it on could go either way.

[I've got no money]

If you and the other side have signed a consent order - then you have settled the claim - you offered, they accepted....

 

What does the consent order actually say - is it a Tomlin Order...

 

I would be inclined to do a letter to the other side - tell them if you don't receive the cheque within 14 days that you'll enter judgment.