procedure on challenging non default judgments

[r&b]

hi all

ive been endeavouring to do some research and asked a few people around the site but detail seems hard to come by, to what appears to be a bit of a new problem, well new to me anyway.

the issue is what procedure should be taken when a non-default judgment needs to be challenged?

most advice on here, and elsewhere trots out the set aside route when a judgment needs to be challenged due to dodgy documentation or whatever the issue may be. i recently lost a case where i tried this, due to the judgment not being a default judgment and therefore not falling within part 13 of the CPR. 2 barristers convinced the DJ that there is no basis in the CPR for such action and that the correct route should have been the withdrawal of my original admission and an appeal or fresh action against the judgment itself.

im positive this is not an isolated case as i know other caggers moving down this avenue (set aside), which i sincerely hope they get away with, but if not, and with the apparent stock advice from CCCS and other helpful organisations to admit the debt and take a charging order as the best way to handle an initial court claim, i think this may be of use to many more to come.

so if anyone has any ideas on this i would be very grateful

cheers r&b

 

added:

short summary of the case in question post 231:

http://www.consumeractiongroup.co.uk/forum/legal-issues/180864-finding-faulty-cca-agreements-4.html

 

the case mentioned above rested on CPR 14.1(4) "the claimant has a right to enter judgment..."

http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part14.htm

 

CPR 14 pd 7. regarding withdrawal of admissions

http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part14.htm

Edited August 7, 2009 by r&b
added:

[r&b]

bump for the evening crowd pls.......

[robcag]

Hi r&b

 

I thought I'd give this thread a bump for you by way of posting here rather than on your main thread regarding this issue.

 

The info at the links I've posted below may or not be relevent, but they might make some interesting reading and may give you some ideas (there are also several links on the pages which I haven't followed yet).

 

I came across them by getting side-tracked (as I usually do!) while investigating the principle of 'coming to court with clean hands'.

 

Unclean hands - Wikipedia, the free encyclopedia

 

http://en.wikipedia.org/wiki/Equity_(law) ; probably more specifically - http://en.wikipedia.org/wiki/Equity_(law)#Development_of_equity_in_England (also see links at bottom of page - looks like several could be interesting )

 

Unjust enrichment - Wikipedia, the free encyclopedia

 

Hopefully something in there will inspire you!

Obviously a lot more can probably be found by Googling the subjects.

 

Sorry if it all turns out to be of no use.

 

Cheers

Rob

Edited August 10, 2009 by robcag
Fixing second link, then added third on same subject

[Spamalot]

Just bumping.

[Spamalot]

Hi R&B,

 

If it's not too late this post may be of interest to you..

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/212189-help-solicitors-demand-14k-6.html#post2373554

 

Spam.

[r&b]

hi spam,

thanks for that (still cant rep u ) ive tried that route but this type of issue isnt covered im afraid, im waiting til i get a bit straighter financially then im going in for the barrister to do his worst...

and hopefully recover his costs from the other sides anyway...lol

[iseo94]

hi, just thinking aloud but have read practice direction-admission re part 14 and 7.2 (d) "the prejudice that may cause to any person if the applicant is refused"

7.2 (f) the prospect of success (if the admission is withdrawn)of the claim or part of the claim in relation to which the offer was made"

7.2 (g) the interest of the administartion of justice

so, if you have a dodgy or no default notice & or an unenforceable cca, then surely you can apply to withdraw an admission on any or all of these grounds, or not? if the DN & or cca are faulty and a judgement been made off the back of them, then there has been a miscarriage of justice.the act 1974 says they must conform to certain criteria and they do not. therefore on the grounds of the above, apply to withdraw the admission and start again with an "appeal or fresh action":confused:

[citizenB]

r&b, I have hit the SOS button for you. Your query is way beyond my knowledge.

[42man]

Section 32c of the limitation act possibly ? in an understandable sense, then let's say you got judgment against you on a decision before penalty charges were known about, then you might be able to take it back as a possible part of a reason for setting it aside....?

[r&b]

thanks 42man, i did think about that, but from a charges point of view i guess it depends on when the original judgment was dated. would it suffice to say that new evidence, a dodgy agreement/application form/whatever, constitutes the concealment/mistake perhaps?

 

"32. Postponement of limitation period in case of fraud, concealment or mistake.

— (1) Subject to [F1subsection (3)] [F1subsections (3) and (4A)] below, where in the case of any action for which a period of limitation is prescribed by this Act, either—

(a) the action is based upon the fraud of the defendant; or

 

(b) any fact relevant to the plaintiff’s right of action has been deliberately concealed from him by the defendant; or

 

© the action is for relief from the consequences of a mistake;

[r&b]

seems more people having potentially same prob so if anyone has any ideas....

[Spamalot]

Hi R&B,

 

I tried to PM you but your inbox is full!!

 

 

I just wanted to let you know that I asked for help via PM from x20 re this thread..

 

http://www.consumeractiongroup.co.uk/forum/legal-issues/219826-setting-aside-judgement-advice-2.html#post2443908

 

And he replied with an excellent post

 

I was going to suggest you may try the same and see if he can answer your questions about where and how to move forward with your case, as the above was a procedural issue too, albeit a different one to yours.

 

Just a thought. You'd have to empty your inbox first.

 

Spam.

[uptoeyeballs]

Hi R&B,

 

In response to my set aside application for a judgment in admission the OP sent a letter to the court for directions as Part 13 didn't apply (I never said it did!). Worringly, they suggest that my application should be dealt with under Part 52 (Appeals) which I think will get me nowhere. The only possible route I can see is from Practice Direction 14.

 

Withdrawing an admission

7.1

 

An admission made under Part 14 may be withdrawn with the court’s permission.

7.2

 

In deciding whether to give permission for an admission to be withdrawn, the court will have regard to all the circumstances of the case, including –

 

(a) the grounds upon which the applicant seeks to withdraw the admission including whether or not new evidence has come to light which was not available at the time the admission was made;

 

(b) the conduct of the parties, including any conduct which led the party making the admission to do so;

 

© the prejudice that may be caused to any person if the admission is withdrawn;

 

(d) the prejudice that may be caused to any person if the application is refused;

 

(e) the stage in the proceedings at which the application to withdraw is made, in particular in relation to the date or period fixed for trial;

 

(f) the prospects of success (if the admission is withdrawn) of the claim or part of the claim in relation to which the offer was made; and

 

(g) the interests of the administration of justice.

 

uteb