Setting ccj aside

[jodenice]

We are going to court to ask for a Set Aside as we (foolishly) missed the original court hearing and didn't get to offer our defence (which was precarious to say the least to be honest).

 

We want it set aside back to the dispute level so that we can then attend court and offer the defence up, (so at least if it fails he can produce his DMP payments and a reasonable amount per month can be worked out, rather than charges on our property, which is the option they are pursuing now).

 

My question is - For the court date next week, do we just need to show a good reason for having missed the original date? Or do we in fact now need to prove that we have a good case to win the dispute? In short, what evidence am i taking with me? Stuff that shows why we missed the first case or stuff to show our case against the CCJ in the first place?

 

I just know we're going to be laughed out of court but we've got this far, might as well keep trying.

[Spamalot]

Hi,

Was the original judgement given in 'default'? & Where was the original hearing and why did you miss it?

 

Spam.

[surfaceagentx20]

So this judgment arose owing to your absence at a court hearing and is not a default judgment under CPR 12. You do not say whether you entered a written defence before the hearing nor what type of hearing it was (full blown trial, small claims final hearing, return of goods hearing …) when the hearing was and when you made your application to set aside nor briefly, what the case was about and what you put in your application notice.

 

Knowing this would enable us to be more precise in the advice we provide. However, I can say that ..

 

if it was a small claims hearing (as they often are), then CPR 27.11 says

 

(2) A party who applies for an order setting aside a judgment under this rule must make the application not more than 14 days after the day on which notice of the judgment was served on him.

(3) The court may grant an application under paragraph (2) only if the applicant—

(a) had a good reason for not attending or being represented at the hearing or giving written notice to the court under rule 27.9 (1); and

(b) has a reasonable prospect of success at the hearing

If the judgment was after trial then CPR 39.3 says as follows:

 

(3) Where a party does not attend and the court gives judgment or makes an order against him, the party who failed to attend may apply for the judgment or order to be set aside

 

(4) An application under .. paragraph (3) must be supported by evidence.

 

(5) Where an application is made under paragraph .. (3) by a party who failed to attend the trial, the court may grant the application only if the applicant

(a) acted promptly when he found out that the court had exercised its power to strike out or to enter judgment or make an order against him;

(b) had a good reason for not attending the trial; and

© has a reasonable prospect of success at the trial

 

In other words, you must act to set aside swiftly (ideally within 14 days of the judgment), your reason for failing to attend the hearing must be what the court deems to be a good one (not foolish you will note) and in addition, you must show you have reasonable prospects of success if the court granted your application and ordered a re-hearing.

 

If it was after some other type of hearing I would expect the same criteria to apply.

x20

[jodenice]

Well we applied already and we have been given the hearing. Its a small claim against a CCJ issued against my partner because he went onto a DMP and paid less per month on an unsecured loan (the full thing is on here somewhere but it was a bit long for this question), therefore defaulting.

 

We had issued a written defence and sent it in ready for the hearing. However, although we applied for court mediation and a delay of a month, they also applied for a stay of one month. our original court date was in April - stupidly we assumed a stay of a month meant the court date would also be moved along by the same period (or that confirmation would be sent out nearer the time - I know i know!) - in the meanwhile my partners shifts were set and he thought that the court date wouldn't apply and couldn't attend - they cannot change shifts lightly as he opens up a tube station in London on early shifts. Add to that shortly before the court date we received a letter stating that the creditors could not find the original signed customer agreement, only a small microfiched page somewhere and we also thought that might cause a delay.

 

basically we are idiots and have never been to court before. I thought we were doing everything right and then we received a letter showing a CCJ had been awarded against him in our abcense. So I need to gather stuff together for the hearing to set it aside but I don't know what to take.

[supasnooper]

Just to bring forward the thread that jodenice is referring to -

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/167044-ccj-court-claim-form.html

[jodenice]

Hi - anyone? Its on Wednesday so I need to start now. Do I need to provide packs for the judge and the creditor? Shall i just take everything with me (in some kind of 'sequence of events'?) I'm not really sure of what the court holds - i know its not a jury but what is it? And will the judge understand that we have no legal background?

 

any help appreciated, thank you

[Spamalot]

Hi there,

 

Not sure if you have read this thread but it may be useful.

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/108467-basic-introduction-consumer-credit.html

 

I have a set aside hearing next week...I will be taking a draft defence and evidence supporting it and a few other relevant bits and pieces.. but apart from that I'm as green as you when it comes to it!

 

 

 

Spam.

[supasnooper]

As you've been granted a hearing, the Judge has obviously read something that gave him reason to grant a hearing.

 

I'm presuming you gave a reason for applying for the set aside. Strengthen the reason you gave.

 

Take along all the paperwork you have just in case you need to refer to anything - probably have to hand the letters mentioning the months stay which caused the problem.

 

Have you written to the court asking for permission to be in court with your partner ?

[jodenice]

I am re-reading the reams of paperwork and trying to make sense of it all. Thanks for that link spamalot, I'll take a look at that later. I think one of the reasons the judge is seeing us is that they were supposed to issue a copy of the original loan agreement, a copy of the default notice and evidence of service of the default notice.

 

I did not receive evidence of service of the default notice, the copy they sent of the legal agreement is a microfiched copy thats tiny and at the end of March they wrote to say they couldn't find the original signed page of the customer agreement. Also, they wrote to us asking for correspondence in a way to settle the debt, we wrote to them 3 times without the courtesy of any response. Also, they asked for a months stay on their application form - again, thought this would delay it by a month. I have all the letters and forms to back this up.

 

So - to take with me.

 

The reasons for missing the case in the first place.

The reasons we think we have a chance to win it if it is set aside.

His financial data (DMP etc) to show that he is paying every spare penny he has and doctors note to say he has severe depression.

 

Do I need to do copies for all 3 parties? Can it be just in note form?

[jodenice]

ps yes I did write to the court but never got a reply, I am turning up anyway and will stay outside if I'm not allowed in - its why I am typing up easily understandable notes for him now - in case I'm not there!

[Spamalot]

Hi.

 

This thread will give you a bit more info... it also mentions the defendant and who is allowed in with them..

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/195563-litigants-person-interesting-reading.html

 

I believe it is mainly concerning a full hearing but I think it's as well to do as much for the set aside.

 

Spam.

[supasnooper]

Yes, I'd take 3 copies just to be safe. It's amazing how paperwork does get "lost"

 

Be aware that prior to the hearing, the opposition solicitor (if one turns up) may try to speak with you both. He\she may say that they may object to your presence. If so, be polite, and state that you have written to the judge to ask for permission.

I do not think it look good on the opposition solicitor if they did object.

[jodenice]

just one more thing - should I take my full defence stuff in? I guess if we have already lost its not 'giving anything away' is it. My defence was quite vague (we were hoping that they wouldn;t find the CSA or something else might turn up) so they don't really know what we have.

[supasnooper]

I would advise that if you can, take along the full defence stuff.

 

There may be something in there that you may need reference to.

 

It would be a shame if the Judge wanted to look at something..... and you'd left it at home. (been there, done it......).

[jodenice]

Cool i will, thanks.

[jodenice]

OK. I am happy to copy his DMP stuff over but it has all his other creditors on there. And is it OK for his creditor to see his budget? I'm not sure what to show.

[supasnooper]

As you have have a DMP, a copy to the judge would be fine .....if it gets to that stage though. A creditor is not obliged to have a copy as such though.

 

Remember, this is a set aside hearing where you'll need to get the judge to understand your reason for applying; and the misunderstanding that caused you to miss the previous appearance.

 

If the Judge asks for a document then do try to provide it; unless you can't as the opposition haven't provided it for you.

 

If you cannot provide a document due to the claimants shortcomings, then do inform the judge as to the reason.

[jodenice]

So - the copies of this stuff I am doing is just for the judge and the defendant, it doesn't go to the creditor? And the third copy is just a spare in case something goes wrong.

 

I've got a timeline here and I've marked all my documents so they are clearly recognisable but I'm not sure how to lay it out.

 

Timeline.

 

Reason(s) for missing Court Case

 

Evidence for defence of court case (to show that its worth setting it aside).

 

I was going to lay this all out so that both my boyf and the judge can see it, but not in too much detail, more like...

 

Reason 1). Defendant informed that months stay requested to try and amicably agree claim. (Appendix A)

Reason 2).

 

etc.

 

I haven't got a clue, I don't want to overcomplicate it either.

[jodenice]

Right - sorry about this non stop stream of posts.

 

I have set the argument out in clear bullet points in chronological order with appendices attached to each point (letters received or sent).

 

I will do the same with why I believe we can win the case.

 

Does it make any difference that the claimants received my defence a month before they requested a stay?

[supasnooper]

You are required to provide a copy of anything you use in your defence to the claimant.

 

However, this does NOT apply to a copy of your DMP or your I&E - only a Judge is privvy to this information.

 

Yes, do make a list of the relevant points as a tick sheet.

[Spamalot]

Hi Jodenice,

 

Good Luck for today.

 

Spam.

[supasnooper]

Good luck for today.

 

I do hope it goes well for you.