reston solictors and arrow global need some help defence deadline 25th nov

[big1636]

hi agree with what you say, i am not great with words , could you advise the best approach, being that i am in angry mood, my email could come across

wrong , if worded incorrect,

[Desperate Daniella]

Okay. Give me a few minutes and I'll draft something for you.

[MandM]

there is now a default notice from arrow global for the amount £683.00 and default date of 25/09/2008, shows for a mail order company dating back to 2004, seems this has been placed on here

by arrow global, but no further information , this is the first time I have seen this , ..................................................................................................................but I now have a ccj against me for something I know nothing about and I am some what worried what happens next

be very grateful for any input.

 

Hi big1636,

 

So are you quite happy that this IS a case of mistaken identity still and that you have no connection to the debt?

 

If so, these are the rules that apply to setting aside judgement >>>>

 

 

Cases where the court must set aside judgment entered under Part 12

 

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;

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

© the whole of the claim was satisfied before judgment was entered.

Back to top

Cases where the court may set aside or vary judgment entered under Part 12

 

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.

CPR Rules - So, 13.2 seems not to apply (MUST set aside) but 13.3 might (MAY set aside)

 

The fact that you have written to Restons and pointed out that you have no knowledge of the debt could help.

 

Let's await some guidance from those that know, I'm sure you'll get plenty of help with this.

 

Mike

[big1636]

thanks mike and Daniella , you have been stars, my wife is stressing me out now thinking baliffs will visit,

[MandM]

And do what DD says. Certainly no harm in trying and it will only give you more ammo if it comes off.

 

M

 

PS You're a long way from bailiffs visits yet

[big1636]

i am liking what dd says, oh i am aware baliffs would be a while, i could pay this to the court today and get rid of it, leave me broke for xmas,

but i feel cheated , yes my fault as well, for messing up the dates, when dd posts the wording i will send thanks mike

[Desperate Daniella]

Heading YOUR URGENT HELP NEEDED PLEASE

 

 

Dear Mr Baldock,

 

I am writing to you as Chief Executive of Shops Direct regarding a Littlewoods Catalogue Account debt for which I have received a County Court Judgment and I believe you will be the only person who can help me.

 

I have never had an account with Littlewoods, or any catalogue company, and I can only assume that your solicitors, Restons, have confused me with another person of the same name as your errant customer, perhaps obtaining my address through an Electoral Register.

 

Restons have flatly refused to give me any information about this alleged account only stating that it was opened "in or around xx date" and that the last payment was made onxxx date. I have asked for a copy of the alleged agreement and they have refused to provide it despite my CPR request. They are in breach of Civil Procedure Rules by failing to provide this document if they are in possession of it.

 

Court papers for this claim arrived while I was away from home and I replied that I would be defending. However, I inadvertently miscalculated the date by which I needed to submit my Defence for which of course I bear responsibility. I had thought I had until Monday, 25th November to submit the Defence, which was that I had no knowledge of this account and it was not my debt.

 

I discovered this morning that a County Court Judgment was obtained by Restons on 18th November. Clearly this Judgment was made on the basis that I had not defended the claim.

 

This is not my debt and I need to apply to the Courts to have it set aside. I need your help to do that.

 

I am sure that if I had been given the information I requested by Restons I would have been able to prove beyond any doubt whatsoever that this debt is not mine, and I am sure you would not be happy for solicitors acting on behalf of your organization to behave in such an unprofessional manner in order to obtain a Judgment against a blameless individual who has no connection with this account or outstanding debt.

 

I am asking you, please, to have this matter fully investigated by your legal department whom I assume were responsible for instructing Restons.

 

I look forward to hearing from you.

 

Thank you.

 

Yours sincerely,

Edited November 22, 2013 by Desperate Daniella

[Desperate Daniella]

Don't pay it. It won't show anywhere for 28 days after Judgment so you have time to sort it out.

 

Don't worry about bailiffs turning up either. Restons will probably write and say they have judgment and are you going to pay before they start thinking of bailiffs.

[big1636]

thank you dd, that is superb , thank you so much

[Desperate Daniella]

Thank you. I'm glad you approve.

 

Send it off.

 

Chief Execs usually pass emails like this to their PAs to get the right department to deal with it and at that level they are usually pretty efficient.

 

Good luck.

[big1636]

in regards to judgement its already on my credit report dated 18/11/2013,

[MandM]

in regards to judgement its already on my credit report dated 18/11/2013,

 

And (in theory at least) it can be removed just as easily should you set aside successfully.

 

M

[Desperate Daniella]

Sorry, I mean the County Court Judgments Register. (Unless things have changed....) That usually takes 28 days from the date of Judgment.

 

I can only assume Restons put it there. B******s.

 

It can be removed when you get the aside.

[The Mould]

Not your debt, so CCJ set aside application will need to be made on the simple grounds that this is not your debt and a mistake/ an error of law has been made against you on the same.

 

You have no knowledge of this debt and have sent CPR Pt 31 request for disclosure and CPR Pt 18 request for further information and confirmation, none of which have been answered by the Claimant.

 

It appears that Claimant has obtained judgment in default.

 

A lot of legal admin involved to set aside and you will need to convince the Court that you made a mistake on the dates involved as to you filing a particularised Defence to this claim, however, as you say, thisd is not your debt and it appears that the creditor/Claimant has mixed your identity with his actual customer who is responsible for this debt.

 

Wait until you hear back from CEO, in the light of the letter drafted for you by Desperate Daniella.

 

Kind regards

 

The Mould

[big1636]

hi mould , thank you for the advice ,i have never had a ccj, so should i be getting paper work from the court in relation to this, so do i have to wait until i receive this

to fill out the court papers to try and have this set aside ,

[big1636]

email has been sent, thank you for all your assistance with this matter

[Desperate Daniella]

Happy to help. That's what we are here for.

 

I do hope he proves to be helpful too!

[big1636]

thank you, i don't feel alone which is a major plus on my part, thanks again

[The Mould]

total disaster , well for me, seems I messed up my dates , I thought I would check my credit file again to see if I could find any further information, ie dates, payments etc, to my surprise

there is now a default notice from arrow global for the amount £683.00 and default date of 25/09/2008, shows for a mail order company dating back to 2004, seems this has been placed on here

by arrow global, but no further information , this is the first time I have seen this , I then decided to look at public records only to see that on 18/11/2013 I have had a ccj placed against me for

£928.00 in total, with my case number , I cant believe I have made this mistake and worse those restons solictors have been in contact with me in writing over the cpr requests , and refusing to

provide me any info, and even sending me a letter the day the ccj was issued . I am lost as what to do, is there anything I can do, I feel cheated , yes I am aware I messed up the dates

but I now have a ccj against me for something I know nothing about and I am some what worried what happens next

be very grateful for any input.

 

The above confirms CCJ against you.

 

Kind regards

 

The Mould

[The Mould]

hi, think I messed up that the dates , court papers are dated the 9th oct, I completed the online service of to confirm receipt on the 17th , as I was away work wise

and I ticked to defend in full, i am thinking i have taken the date for 14 days from the 17th, then added the 14 days from this date to place my defence , i am a total noob

having read the some other threads i am hoping i will be able to get set aside with the court , on the basis restons have gone out of there way not to give me any paperwork

to confirm this alleged debt, and in my eyes have lied or fraud to the court, as on the poc they name contract, as proof in the particulars , were as under my cpr requests

it states please supply agreement , restons refused all my cpr requests as they had not named agreement on the poc, i think this is unlawful, any thoughts from this superb

website would be grateful,

 

A CCJ is in place against you. Based on your postings the Claimant has not responded to any of your CPR Requests or letters and he has in fact obtained judgement in default against you because you got the dates wrong, nonetheless, you assert that this is not your debt and that an error of law has occurred in this matter.

 

You must, therefore, make an application (N244 form) to request that this judgement be set aside and you must state your reasons for such. If the Court agrees with you, the claim will be set back to the moment it was served on you, this will be where you have the opportunity to respond to the Claim with your Defence opposing such.

 

When was the judgement awarded against you?

 

Kind regards

 

The Mould

[big1636]

hi mould, many thanks for your advice, according to my credit file the judgement was 18/11/2013, as yet I have received no paper work from the court

or restons , the fact the restons must have been aware they got this judgement while sending me letters disgusts me , its like they were trying to force me

to make this error,

[MandM]

Just one point......When making your application to set aside do not fall into the trap of putting too much emphasis on their failure to respond to your CPR 31.14 request.

 

They will argue that, due to the value of the claim, it was obviously going to be SCT so therefore they are not compelled to respond to a CPR31 request. And they would be correct.

 

The judgement is incorrect. IMO you need to base your application around that. Hopefully somebody with knowledge beyond mine will assist with the wording.

 

Mike

[big1636]

thanks mike, in regards to my cor31.14 request and cpr18 request they would not provide any info, and namely that in the poc they did not call it an agreement, they called

it a contract, which I think on there part was done on purpose and in there reply to cpr request they stated as they have not advised it as an agreement in the poc they do not

need to provide any information

[The Mould]

thanks mike, in regards to my cor31.14 request and cpr18 request they would not provide any info, and namely that in the poc they did not call it an agreement, they called

it a contract, which I think on there part was done on purpose and in there reply to cpr request they stated as they have not advised it as an agreement in the poc they do not

need to provide any information

 

See, and research the materialbelow as regards making an application to set aside a judgement that has been obtainedby default.

Rule 13.3 Cases where the court may set aside orvary judgment entered under Part 12

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 ofsuccessfully defending the claim; or

(b) it appears to the court that there is some othergood reason why—

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

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

(2) In considering whether to set aside (GL) or varya judgment entered under Part 12, the matters to which the court must haveregard include whether the person seeking to set aside the judgment made anapplication to do so promptly.

(Rule 3.1(3) provides that the court may attachconditions when it makes an order.)

(Article 19(4) of the Service Regulation (which hasthe same meaning as in rule 6.31(e)) applies to applications to appeal ajudgment in default when the time limit for appealing has expired.)

Effectof rule

13.3.1 Rule 13.3 deals with the setting aside of aregular judgment (contrast r.13.2—cases where the court must set aside).

The use of the word "may" shows that thecourt has a discretion but must act in accordance with Pt 1 (the OverridingObjectives).

The defendant applying to set aside the judgment mustcome within r.13.3(1)(a) or (b). It is not enough to show an"arguable" defence; the defendant must show that they have "areal prospect of successfully defending the claim". It is essentially thesame test as applied to summary judgment applications under Pt 24. This test ismore fully covered in para.24.2.3; see also Swain v Hillman [2001] 1 All E.R.91, CA.

In ED&F Man Liquid Products Ltd v Patel [2003]EWCA Civ 472; [2003] All E.R. (D)75; [2003] C.P. Rep. 51, Potter L.J. explainedthe distinction between the tests:

"...the only significant difference between theprovisions of CPR 24.2 and 13.3(1), is that under the former the overall burdenof proof rests upon the claimant to establish that there are grounds for hisbelief that the respondent has no real prospect of success whereas, under thelatter, the burden rests upon the defendant to satisfy the court that there isgood reason why a judgment regularly obtained should be set aside. That beingso, although generally the burden of proof is in practice of only marginalimportance in relation to the assessment of evidence, it seems almostinevitable that, in particular cases, a defendant applying under CPR 13.3(1)may encounter a court less receptive to applying the test in his favour than ifthey were a defendant advancing a timely round of resistance to summaryjudgment under CPR 24.2".

The discretionary power to set aside isunconditional. The purpose of the power is to avoid injustice. The majorconsideration on an application to set aside is whether the defendant has showna real prospect of successfully defending the claim or some other good reasonwhy judgment should be set aside or they should be allowed to defend the claim.The defendant is seeking to deprive the claimant of a regular judgment whichthe claimant has validly obtained in accordance with Pt 12: this is notsomething which the court will do lightly. In El Diwany v Hansen [2011] EWHC2077 (QB), July 29, 2011, unrep. (Sharp J.) a foreign defendant in a defamationclaim filed an acknowledgment of service which was defective because it did notcontain an address for service (rr.6.23 & 10.5) and the claimant entereddefault judgment under r.12.3. In determining the defendant's application toset aside the judgment under r.13.3, the judge found and had regard to (amongstother things) the fact that defendant had no notice of the claim until serviceof the claim form.

Where a condition with which a party is unable tocomply is imposed on an order granting that party's application under r.13.3,the court's decision is tantamount to a refusal and, in effect, a finaldecision, (2) for that reason, a court's setting aside a default judgment oncondition that money be paid into court should not be regarded as simply a casemanagement decision ( Rajval Construction Ltd v Bestville Properties Ltd [2010]EWCA Civ 1621, December 14, 2010, unrep., CA). Judgment was not set aside,although the court considered it was entered without jurisdiction, in anexceptional case: Continuity Promotions Ltd v O'Connor's Nenagh Shopping CentreLtd [2005] EWHC 3462.

In Henriksen v Pires [2011] EWCA Civ 1720, the Courtof Appeal upheld the judge's decision that the defendant could not rely onalleged technical failures by the claimant in an application under Part 13.3.

Rule13.3(1)(b) "some other good reason"

13.3.2 See the judge's comments about the claimant'ssolicitors' "unnecessarily aggressive conduct" in Hart InvestmentsLtd v Fidler [2006] EWHC 2857, TCC; [2006] 2 All E.R. (D.) 232 Nov.

In Berezhovsky v Russian Television and RadioBroadcasting Co [2009] EWHC 1733 (QB), Eady J. held, in a defamation claim,that the court's discretion to set aside judgment under CPR r.13.3 was a broadone, which may be exercised if there was considered to be "some other goodreason" why a defendant should be allowed to defend the claim. Where anallegation was a serious one, involving the suggestion that someone had beengranted asylum on a false basis and in light of evidence obtained by threatsand by drugging a relevant witness, it was plainly desirable (and indeed in thepublic interest) that the allegation should be given as full and fair a hearingas the circumstances permitted. Although the defendant had not acted promptlyin his attempt to set aside the judgment, that may have been attributable to agenuine perception on his part that he needed to remain in hiding. It was alsoimportant to note that the primary object of most libel actions was to achievevindication of the relevant claimant's reputation. If the claimant relied purelyon a judgment obtained in default, it would be easy for those ill disposedtowards them, for whatever reason, to undermine the effectiveness of thatvindication. It was in the interests of both sides that a proposed plea ofjustification should properly be addressed.

There were differing decisions as to whether failureto serve a response pack with the Claim Form and Particulars of Claim wasregarded, in the circumstances of the particular cases, as "some othergood reason" for the court to exercise its discretion to set judgmentaside: see Gulf International Bank B.S.C v Ekttitab Holding Company K.S.C.C.[2010] EWHC B30 (Comm) November 15, 2010, unrep. and Henriksen v Pires [2011]EWCA Civ 1720 (see above Note 3.3.1).

In Merchant International Company Ltd v AksionernaKompaniya 'Naftogaz Ukrayiny' [2011] All E.R. (D) 156 a default judgment had been entered onproceedings brought upon a Ukrainian judgment. After the English judgment hadbeen entered the Ukrainian judgment was cancelled by the Ukrainian SupremeCommercial Court, and the Defendant relied on that cancellation of theunderlying judgment as the basis for its application to set aside judgment.Steel J. refused that application, on the grounds that under art.6 of the HRA1998 [>>Text] it was open to the English court to refuse to recognise theUkrainian judgment that had cancelled the original judgment on public policygrounds. He refused recognition because of the "glaring shortfall fromcompliance with principle" in that judgment.

Rule13.3(2)—need to act promptly

13.3.3 Rule 13.3(2) gives added emphasis to the needto act promptly in seeking to set aside. Indeed the need to comply withtime-limits and generally to act promptly is a feature of the CPR. In applyingto set aside the court has always considered delay and the reasons for it(Evans v Bartlam [1937] A.C. 473). Promptness will always be a factor ofconsiderable significance and, if there has been a marked failure to make theapplication promptly, a court may well be justified in refusing relief,notwithstanding the possibility that the defendant may well succeed at trial(Standard Bank Plc v Agrinvest International Inc. [2010] EWCA Civ 1400,December 87, 2010, unrep., CA). However, in certain cases the court mayconclude that judgment may be set aside even where there has been excessivedelay; see Barons Bridging Finance PLC v Nnadiekwe QBD (Comm) September 6,2012, unrep., where HHJ Mackie QC allowed a defendant to set aside a judgmententered several years earlier, on the basis that: (i) There were very seriousconflicts of evidence between the parties, and the defendant alleged that shewas the victim of fraud; (ii) the case had not lain buried since judgment wasentered, it had continued for some time. Given the importance of the issue andthe facts, justice required that the judgment be set aside.

Other cases where delay was considered are:

Strachan v Gleaner [2005] UKPC 33; [2005] 1 W.L.R.3204; [2005] All E.R. (D.) 358 (Jul): the fact that damages had been assessedand a final judgment entered did not deprive the court of jurisdiction to setaside a default judgment, but it was highly relevant to the question ofdiscretion. It was an aspect of, but separate from, the question of delay. Itcould not safely be assumed in every case that any prejudice to the claimantcould be met by putting the defendant on terms to pay the costs thrown away bythe assessment hearing. There could be no rigid rule either way; it depended onthe facts of the particular case.

Hussain v Birmingham City Council [2005] EWCA Civ1570; 149; [2005] All E.R. (D.) 353 (Nov): defendants and Pt 20 defendantsissued applications to set aside default judgments in the main action and thePt 20 claim only a week before trial. The Court of Appeal allowed the defendant'sappeal from the judge's order refusing to set the judgments aside. It was held,inter alia, that a judge's discretionary power was not to be exercised topunish a party for incompetence, but to further the overriding objective.

Nolanv Devonport [2006] EWHC 2025 (QB), unrep.: adebtor who did nothing until the creditor sought to enforce the judgment, thenapplied to set aside, was refused permission to set aside, it being held thatthe debtor's conduct amounted to an abuse of process.

An application to set aside must be supported byevidence (see r.13.4(3)). If a defendant has not acted promptly they would bewell advised to address the reason for this in their witness statement oraffidavit having regard to r.13.3(2).

In Harrison v Hockey [2007] All E.R. (D.) 336 (Mar),Mann J. refused the defendant's application to set aside judgment after a trialin his absence on the basis of his inability to attend the hearing. It was heldthat four and half months was too great a delay in making the application.

In Khan v Edgbaston Holdings [2007] EWHC 2444 (QB),H.H. Judge Coulson Q.C., sitting as a deputy judge of the High Court, cited apassage by Simon Brown L.J. in Regency Rolls v Murat Carnall [2000] EWCA Civ379, at para.45, in the context of considering the meaning of the word"promptly" within CPR 39, as providing "the clearestexposition" of what is required by "promptly" whether containedin CPR Pt 13 or 39. In Regency Rolls Simon Brown L.J. held that 30 days was toolong a delay before making the application in the particular circumstances,stating: "Having regard to the long, and generally unsatisfactory, historyof the proceedings to that point, the application plainly could, and in myjudgment reasonably should, have been issued well before it was.". H.H. JudgeCoulson held in Khan that the defendant had not acted promptly, which hedescribed as being "with all reasonable celerity in thecircumstances".

H.H. Judge Coulson in Khan also referred to thedecision in Hart Investments v Fidler [2006] EWHC 2857, (see Note at 13.3.2above) where the judge concluded that a delay of 59 days in making anapplication under CPR Pt 13 was "very much at the outer limit of whatcould possibly be acceptable" and that in the context of a case where theapplicant was not legally represented, the certificate of service recorded thewrong date and the application was premature, the conduct of the respondent'ssolicitors was criticised as "unnecessarily aggressive", the defaultjudgment was only one of a number of procedural aspects of the case and thedefault judgment against the second defendant in the main proceedings would notbring finality in the proceedings as a whole. In Standard Bank Plc v AgrinvestInternational Inc [2009] EWHC 1692 (Comm) Field J held that although promptnessmay not be the controlling factor under CPR r.13.3, it is plainly a veryimportant factor, as is evident from the fact that it is singled-out in therule as a matter to which the court must have regard. It is a very importantfactor because there is a strong public interest in the finality of litigation.

In Mullock v Price [2009] EWCA Civ 1222, October 15, 2009, CA, unrep.. it was held that Pt13.3, unlike an application for relief from sanction under Pt 3.9, did notpermit a defendant to rely on the default of his representatives (in that casehis insurance brokers rather than his legal representatives) as a reason fornot acting promptly. It was said that the explicit language of Pt 13.3 imposedthe duty to act promptly upon the defendant personally.

Rule13.4 Application to set aside or vary judgment—procedure

13.4 †

(1) Where—

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

(b) the judgment was obtained in a court which isnot the defendant's home court;

© the claim has not been transferred to anotherdefendant's home court; and

(d) the defendant is an individual;

the court will transfer an application by adefendant under this Part to set aside(GL) or vary judgment to the defendant'shome court.

(1B) Where—

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

(b) the claim is a designated money claim;

© the claim has not been transferred to anothercourt; and

(d) the defendant is not an individual,

the court will transfer an application by adefendant under this Part to set aside or vary the judgment to the preferredcourt.

(2) Paragraph (1) does not apply where the claim wascommenced in a specialist list.

(3) An application under rule 13.3 (cases where thecourt may set aside (GL) or vary judgment) must be supported by evidence.

Effectof rule

13.4.1 Rule 13.4(1) is derived from CCR Ord.37r.4(2), but is modified. Automatic transfer to the defendant's home court(defined in r.2.3) now occurs only if the four specified conditions in the ruleare satisfied (see r.26.2). The phrase "a specified amount of money"is wider than the old expression "liquidated sum" and includes anyclaim where the claimant has put a specific figure on their claim rather thanclaim damages. Automatic transfer now only occurs where the defendant "isan individual" not, for example, where the defendant is a company orpartnership sued as a firm.

There is no automatic transfer where the claim wascommenced in a specialist list.

Rule 13.4(3) does not expressly require a witnessstatement but does require the application to be "supported byevidence". The filing and service of a witness statement to support theapplication is undoubtedly the better practice. It is also preferable toexhibit a draft defence. In a clear case the service of the witness statementmay induce the claimant not to oppose the application. Even where the claimantdoes wish to oppose, the service of the witness statement gives time for theclaimant to consider their position and file and serve a witness statement inreply.

Godzilla.

Kind regards

The Mould

[The Mould]

thanks mike, in regards to my cor31.14 request and cpr18 request they would not provide any info, and namely that in the poc they did not call it an agreement, they called

it a contract, which I think on there part was done on purpose and in there reply to cpr request they stated as they have not advised it as an agreement in the poc they do not

need to provide any information

 

Further to my recent post, re-send your CPR Pt 31 rr.31.14 & 31.15 for a copy of the contract mentioned in their statement of case (their POC's) and send it by special delivery Royal Mail. The Claimant then has 7 days to comply.

 

Kind regards

 

The Mould