business premises rent CCJ **WON SET ASIDE**

[surfaceagentx20]

Yes, CPR 13 deals with applications to set aside a default judgment. CPR stands for Civil Procedure Rules and is the set of rules which deals with civil proceedings in the courts of England and Wales. Have a look at CPR 13 here. See what CPR 13.4 says?

 

x20

[erinbrooke]

What is the date of the judgment? or have you already mentioned it?

 

I haven't received any correspondence from the courts since I sent my application Will they write to me first with a hearing date? :? At that point can I transfer it to my local court in Scotland?

[frettful38]

Read this

 

National Debtline England & Wales | Debt Advice | Factsheet 12 How To Set Aside A Judgment In The County Court

[erinbrooke]

Yes, CPR 13 deals with applications to set aside a default judgment. CPR stands for Civil Procedure Rules and is the set of rules which deals with civil proceedings in the courts of England and Wales. Have a look at CPR 13 here. See what CPR 13.4 says?

 

Do I need to have asked for it to be moved when I sent my application? i.e., is it too late to ask now or when I get the hearing date (that is IF I get a hearing date!!)

[surfaceagentx20]

CPR 13.4 says what it says. The transfer would be automatic, that is, you wouldn't have to ask for transfer and the court would cause a transfer to the Defendant's home court as a routine part of the procedure. The thing is, because you do not live in England or Wales, there is no home court within the jurisdiction of England and Wales to which the case may be transferred. For the case to be transferred to your local court would require the case to be transferred out of the jurisdiction of England and Wales and into the jurisdiction of the Scottish courts. A transfer of that kind is not provided for by CPR 13.

 

But it does highlight the injustice in that the new rules permit service of a claim form in Scotland without the claimant first obtaining permission (that is service of documents in a territory over which the English courts have no jurisdiction) and at the same time deny our Scottish neighbours the benefit of having the case decided at a place local to them. Rather the case will be decided at a place convenient to the Scotsman's English oponent. Such injustice would not be tolerated where the individual Defendant was a person living in England.

 

To my way of thinking that the Scottish Defendant who had no control over the comencement of legal proceedings but is at a serious geographical disadvantage to his English oponent, defeats the overriding objective found at CPR 1.1(2). Since the overriding objective must find its way into all things where civil procedure is concerned, I would be tempted to invest some time in conceiving of a way in which the court might fairly strike out the claim because of the inbalance. If you could show you had a convincing and complete defence to the claim you might have a chance. If however there's no way you can get out of being ordered to pay the money under the guarantee, I reckon the court would allow the case to continue in England and award your oponent judgment. After all, that is the ultimate issue a court will have to decide, whether it is sitting north or south of the border.

 

x20

[erinbrooke]

OK, an update of what has happened to day...

 

I rang Hull CC at 9.00am on the dot and asked for an update.

 

They confirmed that the hearing was at 10.30 tomorrow(21 August). I then told them that I had not received notification of the court date, to which I was told that they had written to me at the end of June. She then confirmed the address that they had written to as the same address the claimant had written to I then explained that the reason I was in this mess was because the claimant had written to that same address and she replied that I should have applied to have the address on the case changed (another form). I then confirmed that I had given my current address in Section 11 of the N244 form that i had sent them - where it clearly states ' Applicants address to which documents about this application should be sent.' She said I should have still applied separately to have the address changed. Not too sure about that!

 

She went on to advise me to fill in another N244 applying to have the hearing adjourned and transferred to my local court, together with a covering letter, and she would pass it onto the judge for a decision.

 

I have just rang back to see what was said and she has confirmed that the judge would not adjourn/transfer the hearing and it would still go ahead in my absence

 

I have spoken to the CAB advisor who was delaing with my case and he in turn got straight in touch with Hull CC for an explanation as to why it was not be adjourned at least, bearing in mind it was their error that I did not get the hearing date? He was told that the judge would not give a reason and that his decision was final.......

 

Is there any appeal i can lodge if it goes against me - this just stinks of something....

[frettful38]

Did you not ask the court if you could appeal if it goes against you tomorrow?

 

If a party objects to a judgment made at a hearing which they attended they will almost certainly have to appeal the decision. Appeals in the small claims court are now treated, broadly, in the same way as appeals in any other type of claim. If a party wishes to appeal the judge’s decision they will have to ask for permission to appeal. To grant permission the court will have to be satisfied either that:

• The appeal has a real prospect of success; or,
  
• There is some other good reason why the party should be permitted to appeal.
  

Permission may be obtained from the judge who made the decision or from the appeal court. If a party asks the judge at the small claims hearing for permission to appeal and he refuses to grant it, the party may still ask the appeal court for permission. If the party did not attend the hearing, they will have to seek the permission of the appeal court in any event.

An appeal must generally be lodged within 14 days of the judgment being made. A reduced fee and simplified appeal form applies to appeals against small claims judgments.

 

The Legal Test for Appeals

 

The appeal court will only allow an appeal if it is satisfied that:

• The decision of the judge who heard the small claims trial was wrong in law; or
  
• The decision was unfair because of a serious irregularity in the small claims proceedings.
  

In other words a party will not be successful if they simply do not like the judge’s decision or think that another judge might have decided the case differently.

[erinbrooke]

No, I didn't want to rock the boat too much, but the lad at the CAB is looking into it for me in the morning - the whole thing just stinks

 

There MUST be a route of appeal for errors like this?? :?

[surfaceagentx20]

An appeal is not necessary where the decision to be reviewed was a decision made in the absence of one of the parties.

 

It is also incorrect for the court office to say that you have to make an application on N244 to change your address for service. For a start, you had never given an address for service until you lodged your N244 to set aside the judgment. That form gave your Scottish address as your address for service.. Even if you had, you can change that by simply filing a notice. There is no need to ask the court for permission to change your address for service.

 

This is a proper pickle and I'm struggling to think of a way around all this when the hearing is at 10:30 tomorrow morning and you're in Scotland! The only thing I can suggest is if you can send a fax or email to the court in which you ask the court to excuse your absence and explain your absence is not out of disrespect but owing to geography and that the court office had not paid attention to the address for service given in your N244 so you only found out about the hearing recently. Ask the court to set aside the judgment on grounds of non-service and direct re-service of the Claim Form to you at your Scottish address.

 

You will need to head up the message with the case number, the parties to the case and the date and time of the hearing, marking it URGENT.

 

You also ought to throw some stuff in about what your defence to the claim might be. So far I've seen nothing which touches on this very important aspect.

 

x20

[erinbrooke]

Cheers X20,

 

My head is pounding, it's been a REALLY stressful day

 

The CAB are fuming that the judge wouldn't even offer the courtesy of an explanation why he wouldn't adjourn the hearing

 

We have since spoken with one of the court staff, who has told us to fax down more back up to our application and an explanation why I am not there. She says if we get it there for 9am she will give it to the judge, so we're frantically racking our brains what to write....

[surfaceagentx20]

Ss for what to write, I can only repeat what I said earlier ..

 

ask the court to excuse your absence and explain your absence is not out of disrespect but owing to geography and that the court office had not paid attention to the address for service given in your N244 so you only found out about the hearing recently. Ask the court to set aside the judgment on grounds of non-service and direct re-service of the Claim Form to you at your Scottish address.

 

You will need to head up the message with the case number, the parties to the case and the date and time of the hearing, marking it URGENT.

I then said

 

You also ought to throw some stuff in about what your defence to the claim might be. So far I've seen nothing which touches on this very important aspect.

 

I can't help you on what to say by way of Defence. However, you're entitled to be served properly and that never happened. You're also entitled to admit the debt if you wish and apply for time to pay based upon your means. You never got that opportunity either.

 

x20

[erinbrooke]

My wife and I are currently compiling something now....

 

When we have looked into it we have found out a few interesting facts, like they are obliged to respond to my solicitors letter that was introducing a potential new tenant for the lease to be re-assigned to, even just to say they are not happy with the new tenant : they did not do that.

[erinbrooke]

Hi all,

 

It's been a while since I was on the forum worrying about setting aside a CCJ that had been unjustly registered against me....

 

Anyway I am thrilled to say that we managed to get it set aside before Xmas last year:)

 

However - it seems that getting it set aside is only the start of my problems as the Claimant was then given another chance to take me to court(this, it seems, is standard practice)...

 

So, after a lot of toing and froing and form filling in, I now find myself with a 'Fast Track' court date with the Claimant. Can anyone offer any form of advice as to what will happen with a Fast Track hearing?

[erinbrooke]

Hopefully someone can offer some greatly needed advice with regards to my current situation....

 

To summarise my predicament, I had my own business for a number of years and rented business premises from a large development company. In 2007 I was forced to close my company due to the unforeseen financial crash and lack of work. At that time I tried all ways to contact my landlord to let him know that I had somebody else that wanted to take over the lease I had with him. I was ignored on numerous occasions, so I then instructed a local solicitor to contact the landlord for me. The solicitor was also ignored and after paying for 3 letters to the tune of £600 I gave up - working on the principle that if the landlord wasn't bothered, I would just get on with rebuilding my life:oops:

Any way 18months later he contacted me via email wanting to know hpow I was going to pay the CCJ he had registered against me for £15.5K:-o

After a lot of form filling in and contact with the courts, I managed to get the CCJ set aside, stating num,erous reasons such as the forms had been served on the wrong address and that the landlord had previously ignored me(apparantly this contravenes a Landlord and Tenant Act)

The courts then automatically gave the landlord the option to take me back to court. The landlord at first ignored the allocation questionnaire deadline and we thought he had gave up, but then the courts gave him an additional 7 days to fill the form in and pay a £200 court fee, which he did:sad:

He has since tried to contact me on numerous occasions, stopped using his solicitor and offered to settle for £6K....

I got, this morning, 'Fast Track' court papers for the case.

Do I need to get a solicitor? Why is the landlord trying to settle for such a reduced amount? Is he calling my bluff? If anyone who can help needs anymore information, please do not hesitate to ask:)

[MrShed]

Personally, I would absolutely defend this claim, as the landlord did not allow any mitigation of your loss (which I presume in terms of rent would have been minimal if you had assigned the lease?).

 

However, as he is going for 16k - it will not be small claims court.

 

As such, bear in mind you may be liable for the claimants legal costs at court. In addition, it is probably a good idea to employ a solicitor for yourself.

 

I would advise, in the first instance, that you contact a solicitor for an initial consultation to assess whether they feel you have a winnable case. Due to the risks in non-SCC cases, it may be worth settling.

 

I assume you still have proof of the correspondance sent at the time?

[erinbrooke]

I assume you still have proof of the correspondance sent at the time?

 

Yes we included it all in our Witness Statements when having the CCJ set aside.

I just feel that seeing as the landlord has suspended the use of his solicitor and is writing direct and also made an offer £10K less than the claim, he might have realised or been advised he cannot win??

[MrShed]

Perhaps, but I wouldnt rely on it.

[supasnooper]

Well done on getting the CCJ set aside.

 

Thios now takes you back to the stage of being able to defend the claim.

 

What are the Particulars of Claim ( bottom left hand side of the form N1) ?

 

Have you requested a copy of the lease that included a Personal Gaurantee ?

 

Have you also requested any documents that are relied upon that may have been submitted with the claim ?

[erinbrooke]

Well done on getting the CCJ set aside.

Thanks you very much it was no easy task and was indeed very stressful, but happily we got there in the end:) I would like to think that the courts don't set aside CCJ's lightly and that the judge has seen that we have a case:|

 

Thios now takes you back to the stage of being able to defend the claim.

 

What are the Particulars of Claim ( bottom left hand side of the form N1) ?

It's not an N1 that we have it is 'N154 Notice of Allocation to the Fast Track'

 

Have you requested a copy of the lease that included a Personal Gaurantee ?

I have a copy of the lease

 

Have you also requested any documents that are relied upon that may have been submitted with the claim ?

We have not requested anything yet as we only got the N154 this morning:sad: The landlord in the past has ignored certain procedures like sending us a copy of his statements by certain dates......

 

Many thanks for getting back to me:)

[erinbrooke]

Can the landlord show the offer of reduction he has made to me in court if he has titled the letter 'Without Prejudice'?