Judgment for Claimant (in default) what to do?

[miklu23]

Hello to everyone,

 

I'm new to forum as issue is new to me too. Was reading on the forum, looking for an advice and peoples stories on how to act. Well every case is different and would appreciate your comments and suggestions.

 

The case:

Have received a letter in the post with misspelled last name. Looked like it could be for me. It is a Judgement for Claimant (in default) saying i haven't responded and have to pay claimant close to £700.

It looks as a genuine document, with Claim number from Northampton County Court.

 

Claimant is a local sports studio what i was using for several month and did pay when i was attending (signed up a year ago, was using them for 3 or 4 month).

 

I have stopped attending the classes approx half a year ago. Have e-mailed studio saying i will not be attending anymore as had health problems and had to leave country fore some time. They said i i'll have to pay for 12 month membership as per agreement.

I have asked if i could speak to a person i have signed agreement to discuss this but no further response received.

 

I have looked at my copy of agreement and:

 

1. tick box is not marked where it says: I have been given the terms and conditions of membership. And i accept that i have duty to keep the terms and conditions.

At the time i signed agreement i did ask what if i'll need to move or cancel and verbally was told this is not a problem.

 

2. On back side of agreement it says Direct Debit must be used for monthly membership fees.

In i time i was attending studio i never had direct debit set with my bank, they where charging my card somehow.

I lost my card some time ago and it was replaced by my bank, i checked that after card was replaced payments stopped being taken.

 

I haven't received any letters from claimant (the studio) or court. Just this Judgement for Claimant (in default) with a wrongly spelled name.

 

I'd appreciate your advice on what shall i do in this situation.

[AndyOrch]

Hi Miklu and welcome to CAG.

 

If you never received the summons (N1) you can set a side the judgment on the basis of bad service.Download form N244 and make application to set a side there is a fee of £45 without hearing and £80 with...most will need an hearing if the Claimants fight the set side.

 

If the set a side is successful you will be able to defend the matter from fresh.

 

Regards

 

andy

[miklu23]

Hi Andyorch,

 

Thank you for the comment. Do i need to include my explanation other than i haven't received any letters - such as copy of agreement etc. ?

 

Kind regards,

Miklu23

[citizenB]

You could say that aside from the Bad service eg.. you didnt receive a claim so were therefore unable to defend - but no other communication has been received from this company to even alert you to the fact there might have been some issues.

[miklu23]

Thanks CitizenB.

 

You could say that aside from the Bad service eg.. you didnt receive a claim so were therefore unable to defend - but no other communication has been received from this company to even alert you to the fact there might have been some issues.

[Gaston Grimsdyke]

You can't get the judgment set aside merely because you didn't receive the claim form. You also have to prove that you have a defence which has a real prospect of success. If the terms are that you have to pay for a minimum of 12 months and you signed the agreement, you're pretty stuck. Doesn't really matter whether you ticked the box to say you had received the terms or not.

[debbbbsy]

You can't get the judgment set aside merely because you didn't receive the claim form.

 

Wrong. The defendant has been denied the opportunity to defend the claim and as such regardless of the prospects has the right to recieve the documents.

 

Who initiated the claim ? The club or a DCA ?

 

Why was a default notice not issued ?

 

Too what address were the original court docs served ?

 

Debbie

[Gaston Grimsdyke]

Wrong. The defendant has been denied the opportunity to defend the claim and as such regardless of the prospects has the right to recieve the documents.

 

Debbie

 

Garbage. Read Part 13 of the Civil Procedure Rules 1998.

[miklu23]

Hi Gaston,

 

Your comment - "Doesn't really matter whether you ticked the box to say you had received the terms or not."

 

My prospect is the tick box. As this is all about Terms on agreement isn't it? I'm just speaking of general understanding i might be wrong that's why i'm looking for an advice.

 

1. Next to tick box says:

I have been given the terms and conditions of membership and have read and understood the important points in this document. I accept that i have a duty to keep the term and conditions set out within this document.

 

So from this as you say " If the terms are that you have to pay for a minimum of 12 months" - i didn't agree to terms.

I did sign agreement where it says pay monthly and i did pay while i was using their service. What I'm saying is i didn't tick the box so i didn't agree to terms and conditions and once I've stopped using service i shouldn't be forced to pay for nothing.

 

am i wrong here?

 

i also mentioned that "At the time i signed agreement i did ask what if i'll need to move or cancel and verbally was told this is not a problem." - but i have no proof of that as it was verbal.

 

Thanks.

 

You can't get the judgment set aside merely because you didn't receive the claim form. You also have to prove that you have a defence which has a real prospect of success. If the terms are that you have to pay for a minimum of 12 months and you signed the agreement, you're pretty stuck. Doesn't really matter whether you ticked the box to say you had received the terms or not.

[Gaston Grimsdyke]

The tick box is just a belt and braces thing for them, to stop you doing what you are now contemplating doing i.e. alleging that you didn't receive the terms and conditions. It makes no difference if you read them or not, from your last post it appears the terms were part of the actual document you signed so you are stuck with them. The verbal variation won't work either, because as a general principle of law if there is a conflict between a verbal term and a written term the written term wins. I think you'll lose in the long run on this but it might be worth seeing if you can do a deal with the Claimant to get a discount on the claim, as they will be keen to avoid the hassle of you applying to set aside the judgment.

[Mike_hawk]

Miklu

 

Read CPR 13.3, if you believe you have a triable case then apply to set aside.

 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13