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Help require with Default Judgement/Redetermination/Set Aside/Interim Charging Order/Final Charging Order


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OK got it now. Firstly, you are quite safe with the CO providing you pay the £1 per month. It would seem that counsel for the Claimant was quite keen to accomodate you as much as possible so they didn't lose judgment. Not sure if you have posted it before, but can you post up a clear copy of the default judgment and I will give my opinion on that as point 4 of the Order dated 20 July 2010 is a direct referal to the original judgment to were seeking to get set aside and it is that that needs to be looked at.

R

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Without any doubt, you have a Judgment against you in default of replying to the claim. So the judgment is based on you not returning the acknowledgment of service. I posted before that CPR 13.2 deals with this.

 

13.2

The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because –

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

 

It does not state who wrongly entered judgement just that if it was wrongly entered (also referred to as an irregular default judgment). The conditions to be satisfied are

 

12.3

(1) The claimant may obtain judgment in default of an acknowledgment of service only if –

(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and

 

(b) the relevant time for doing so has expired.

 

 

(2) Judgment in default of defence may be obtained only –

(a) where an acknowlegement of service has been filed but a defence has not been filed;

 

(b) in a counterclaim made under rule 20.4, where a defence has not been filed,

 

and, in either case, the relevant time limit for doing so has expired.

 

Clearly the conditions have not been met as you returned an acknowledgment of service. The DJ even admits in the latest Order that you replied to the claim by referring to your admission. The DJ was clearly wrong in dismissing your set aside application and in doing so has wrongly used CPR 13.3

 

13.3

(1) In any other case, the court may set aside(GL) or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

 

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

 

(ii) the defendant should be allowed to defend the claim.

 

 

 

(2) In considering whether to set aside(GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

 

The test it would appear was used in 13.3(a) and the DJ made a judgment that you did not have a real prospect of successfuly defending the claim. The main point is 13.3 is discretionary, 13.2 is not as it states that the judgment MUST be set aside. The court has no discretion whatsoever with this. The DJ was wrong, but if CPR 13.2 was not argued, it will not always be picked up.

 

On your admission, at this stage it doesn't matter. However, you will need to make an application to withdraw the admission to be heard directly after your appeal.

 

If it was me, I would Appeal. If you read my thread, I did appeal and got a default judgment set aside using CPR 13.2. I had previously made an admission and was also successful in getting the addmission withdrawn. The strengh of a defence is lower for an application to withdraw an admission than that required to get a set aside under 13.3

 

I hope this clears thing up for you. You must now decide on whether to accept things as they stand or appeal.

R

 

Here is the original Judgment that I applied to have set aside
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