business premises rent CCJ **WON SET ASIDE**

[surfaceagentx20]

You need to get hold of Hull County Court the moment the clock strikes 10:00am tomorrow. You will need to be able to quote the case number. Ask them what has happened with your application notice because your oponent is suggesting your application is to be heard on 21 August and you've not had any official notice from the court.

 

If they tell you there is to be a hearing find out what time of the day it will be heard. Tell them you've had no notice and (if the hearing is in the morning) that there is no way you could be there in time.

 

All the same, be prepared to have to go to Hull on Friday.

 

Am I right in thinking that the address to which the Claim Form was sent was an address in England or Wales but at the time it was sent, you were in fact living in Scotland? Did the landlord know you were living in Scotland? Did you tell him or did your solicitors tell him? Have you got documentary evidence that the landlord knew where you lived?

 

Last, I figure your landlord is resisting your application to set aside. If so, and in a nutshell, how does he put his case?

 

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[surfaceagentx20]

If I still have a property in England, does anyone know i they can still obtain a Charging Order with me living in Scotland?

 

Yep they can. So long as they follow the correct procedure.

 

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[surfaceagentx20]

Fretful's kinda right in that under CPR 13.4

 

(1) Where

 

(a) the claim is for a specified amount of money;

 

(b) the judgment was obtained in a court which is not the defendant’s home court;

 

© the claim has not been transferred to another defendant’s home court under rule 14.12 (admission – determination of rate of payment by judge) or rule 26.2 (automatic transfer); and

 

(d) the defendant is an individual

 

the court will transfer an application by a defendant under this Part to set aside or vary judgment to the defendant’s home court

 

CPR 2.3 says:

 

‘defendant's home court’ means

 

(a) if the claim is proceeding in a county court, the county court for the district in which the defendant resides or carries on business; and

 

(b) if the claim is proceeding in the High Court, the district registry for the district in which the defendant resides or carries on business or, where there is no such district registry, the Royal Courts of Justice;

Trouble is, since The Ministry of Justice messed with the CPR concerning service of the claim form so as to permit service in the United Kingdom, there have been no corresponding changes to take account of the fact that a Defendant living in Scotland will not have a county court in the district in which he resides or carries on business and may therefore be compelled to attend a court 100s of miles to the south.

 

I take it you gave a Scottish address in your application to set aside judgment? But if I understand you, when the proceedings were issued earlier this year, you were then living in England. In other words, it is only in the last few months say that you have moved to Scotland?

 

When you call the court tomorrow, point the court office to the provisions of CPR 13.4 and insist the case be transferred to your home court (wherever that may be). Ask them to tell you what the name, address and telephone number of your home court is. Tell them all about the journey difficulties and ask the court officer to explain how the court dewals with such a situation justly. That should cause them to scratch their head a whilw why they ponder the grave injustice this situation is causing you.

 

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[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?

 

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[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.

 

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[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.

 

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[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.

 

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