got a default CCJ/Interim 3rdd Party Debt Order against a company*** Resolved***

[butterflygirl]

Hello Forum

 

I got a default judgment against a company who owed us money.

 

I then got an Interim Third Party Debt Order against them and the money is frozen.

 

In the meantime, they've applied to have the judgment set aside

and the hearing is prior to the hearing for the TPDO.

 

My questions:

 

- how likely is the judge to set a default judgment aside (assuming that everything was served correctly - registered address wise)

- when I read 'will set aside if debtor has a real chance of success'

- does this mean that the judge has to be convinced that the debtor *could* fend off a CCJ judgment, based on the evidence.

 

. Or does it mean that if there is even a remote chance, then the judge will set aside

 

How tough are judges with this type of thing?

 

It seems potentially that you follow all procedures to the letter,

but there's still wriggle room for a debtor who knows *what to say* to throw off enforcement...

 

Just waiting for the documentation from the court, which presumably contains details of what their argument for setting aside is

- which can only be either service/whether the amount is owed..?

 

Thanks,

 

B

[AndyOrch]

Welcome to CAG Butterflygirl

 

 

Set a side can only be considered if the defendant has grounds by way of bad service and a defence that has merit.

 

 

Was it a default judgment (regular or irregular)?

 

 

Take a read here re set a side

 

 

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

 

 

Regards

 

 

Andy

[butterflygirl]

Hi Andy, I am still waiting to receive the forms from the court that specify the basis of their application to set aside..

 

To complicate matters,

I have an Interim Third Party Debt Order against them,

and the money is currently frozen in their bank.

 

The hearing for the setting aside is prior to the hearing for the Final Third Party Order

.. I am so concerned that I will lose this opportunity to enforce the judgement.

 

I'm looking to get a feeling for *how* much weight a judge will place on a default judgement debtor

*wanting* to take the whole thing back to the beginning..

 

Service of the small claim itself was perfect.

 

They just didn't respond because they assumed I wouldn't enforce - that's my view.

 

As soon as they realised I was in the process of enforcing, they applied to set aside.

They have another CCJ on their record, from the last 12 months

- default again

- but only a 'possible CCJ' because the claimant in this case didn't have their details 100% perfect on their small claim..

 

Nonetheless, I'm hoping that this is evidence of their ambivalence regarding official documentation..

 

I keep reading that the bar is high when it comes to setting aside,

but is this also true for default judgements, or do judges in this situation prefer to send everything back

to the beginning if the debtor says 'I have a good defence'

 

.. I mean, in a set aside hearing, is the judge likely to get in any way bogged down in the minute detail of the original claim?

 

I have no concerns about my claim and its success,

my concern is regarding the debtor, possibly represented (I am not), using tactics to throw off enforcement.

 

Thanks, pretty concerned about the above to be honest..

 

B

 

Welcome to CAG Butterflygirl

 

Set a side can only be considered if the defendant has grounds by way of bad service and a defence that has merit.

 

Was it a default judgment (regular or irregular)?

 

Take a read here re set a side

 

Regards

 

Andy

[AndyOrch]

Did the defendant acknowledge the claim ? ...if not then its a regular default judgment and they will need good grounds to attain set a side.

 

 

Andy

[mjt2013]

If it's a regular judgment then the test is whether they have a "real prospect of successfully defending the claim" or if there is "some other good reason" to set the judgment aside. The key words there are "real" and "good", they have to show grounds which are more than fanciful but the test is not really much higher than that.

[butterflygirl]

Thank you Andy and mjt.

 

mjt, that was my fear, to be honest...

 

I've now received their application notice, stating that they have attached a witness statement. The court haven't sent the witness statement through, so I cannot see what the detail of their argument to set aside is. Is the statement something that the court should have attached? I can see only that they're saying something about CPR 13.3 (this is service I take it? I have zero worries on that score - they changed their reg address AFTER the CCJ... If I was a judge and someone tried this route to set aside, I'd come down on them big time....!!).. And yes, also saying they have a real prospect of successfully defending.

 

Also, on their application notice, the name typed into the boxes (1. what is the name, or if you are a solicitor, the name of the firm?, and 3. what order are you asking the court to make and why?) is spelled differently to the name signed in 11. It is only slightly spelled differently but nonetheless, it's not technically correct. Can I in some way *ask* the court to through this application out on the basis of this??!? In which case, my third party hearing would presumably then come before the hearing to set aside (given that there's only 1.5 weeks between the two)... If I can do this, how do I do it? It's a long shot, and in some ways *petty*, I know... But I can guarantee that if I were the debtor in a case, and made a similar mistake, I'd end up messing up...

 

Thanks,

 

B

 

 

 

If it's a regular judgment then the test is whether they have a "real prospect of successfully defending the claim" or if there is "some other good reason" to set the judgment aside. The key words there are "real" and "good", they have to show grounds which are more than fanciful but the test is not really much higher than that.

[AndyOrch]

You need the WS...priority.

[butterflygirl]

I'm not thinking that they may not have attached a witness statement, given that they have been sloppy up until this point. Perhaps they have...but if they haven't, how would that be looked upon...

 

Also - I see that CPR 13.3 relates to having a defence, and not service. If they're not arguing service, and yet now are saying they have a good defence, why not defend the claim initially... Would that not be frowned upon, or at the hearing....is everything that's gone before effectively zeroed...just because they now wanna say they have a good defence..

 

These things are not easy to google on...

 

Thanks Andy,

 

B

 

 

 

 

You need the WS...priority.

[AndyOrch]

]Did the defendant acknowledge the claim ? .[/b]..if not then its a regular default judgment and they will need good grounds to attain set a side.

 

 

If you could clarify BFG

[butterflygirl]

Hi Andy, no they didn't acknowledge the claim at all. The whole process was completely ignored. Since finding out that they then had a CCJ, they've changed their reg address. It was then only after realising their funds were frozen with a Interim TPDO that they've filed a set aside.. It's a fairly substantial amount of money, so I'm in the middle of a *slight* nervous breakdown at the mo... Your help much appreciated.

 

Thanks,

 

B

 

 

]Did the defendant acknowledge the claim ? .[/b]..if not then its a regular default judgment and they will need good grounds to attain set a side.

 

 

If you could clarify BFG

[butterflygirl]

On the topic of the way they've filled out their application to set aside.. The name in 1. and 3. does not match the name in the signature box. So, say the name is Martyn Smith (which it obviously isn't), it's written in 1. and 3. as 'Myrtan Smith' and the signature box is 'Martyn Smith'. Technically, this is not correct. On paper, it's 2 different people. So who is deemed to have applied for the set aside in that situation - the person in the sig box?

 

Is there a way prior to the hearing of doing anything about this....or as I say....would it be deemed 'petty'.. It's obviously just a mistake. Nonetheless, with legal stuff, mistakes like that for some can perhaps cost them the case..

 

Thanks,

 

B

[mjt2013]

It's far too petty to be relevant.

 

As for the other point, sadly a lot of applications to set aside are from people/companies who were validly served but stuck their head in the sand and did nothing until attempts were made to enforce the judgment. A lot of judges will take a dim view of a failure to reply to a properly served claim but, in reality, part of the test is available precisely for Defendants who were properly served but didn't reply.

[butterflygirl]

Ok mjt, ta for the comments re the error of the name.

 

If they get it set aside, is there any option for a judge to order the funds from the Interim TPDO remain frozen until the outcome of the claim (sent back by the set aside, process to be started again)? Or an option for the judge to order that those funds come to the court while the outcome of the case is decided?

 

In other words, given the frozen funds, is this relevant in any way to the judge when he/she's deciding on a set aside - the fact that the defendant realised the funds were frozen....and then decided to apply to set aside..... Would a judge be bearing that in mind? That enforcement is gonna be made a whole lot trickier if those funds are unfrozen..?

 

Thanks,

 

B

 

 

It's far too petty to be relevant.

 

As for the other point, sadly a lot of applications to set aside are from people/companies who were validly served but stuck their head in the sand and did nothing until attempts were made to enforce the judgment. A lot of judges will take a dim view of a failure to reply to a properly served claim but, in reality, part of the test is available precisely for Defendants who were properly served but didn't reply.

[butterflygirl]

Also, the company in question, on paper, aren't creditworthy. Their score is at 1 and the advice is along the lines of 'only deal with this company with cash'. Is this in any way relevant to our defence to the set aside, due to the fact that they seem to be high risk...and while we have the money frozen....it would be a shame (more than a shame!!) to now have that unfrozen while we sit out the claim process all over again...?

 

Thanks,

 

B

[butterflygirl]

I called the court to find out where the witness statement is and they simply hadn't sent it to me with the application notice and notice of hearing. I asked them whether they could email it to me because I need it urgently - they said they couldn't because it was 'huge'. They're posting it out to me.

 

Is 'huge' usual in set aside witness statements? Is there any downside to me or them re the size of the witness statement?

 

Pain that I have to wait another few days to see it.

 

Thanks,

 

B

[AndyOrch]

Size isnt always important BFG ... its the content that matters and legal standing...post up when in receipt.

 

Regards

 

Andy

[mjt2013]

As a very rough rule the more they have to say the more likely it is something in that will give them a possible defence but Andyorch is right, you need to analyse what they say when you've got the witness statement.

 

It is also worth noting that some courts, for example one of my local ones, are in the habit of listing set aside applications initially for 10 minutes just to see if there are any issues at all and, if so, the application is usually adjourned with more time allocated to it. If this witness statement really is huge then you may find that it's dealt with by a very harassed judge who decides the application can't be heard that day. This may not be the practice at your court of course.

[butterflygirl]

Thanks Andy and mjt, very useful comments, much appreciated.

 

Thanks,

 

B

 

 

As a very rough rule the more they have to say the more likely it is something in that will give them a possible defence but Andyorch is right, you need to analyse what they say when you've got the witness statement.

 

It is also worth noting that some courts, for example one of my local ones, are in the habit of listing set aside applications initially for 10 minutes just to see if there are any issues at all and, if so, the application is usually adjourned with more time allocated to it. If this witness statement really is huge then you may find that it's dealt with by a very harassed judge who decides the application can't be heard that day. This may not be the practice at your court of course.

[butterflygirl]

An additional point is that there is one week (precisely) between the hearing for the set aside and the hearing for the Final TPDO. If the judge gets/feels bogged down in documentation at the set aside hearing and needs to adjourn it, presumably the date for the final hearing for the TPDO would also be moved....or not...hmm..

 

Either way - I'll post back with the result of the set aside hearing. While it's a massive pain for me, something from my experience of it might be of help to someone in a similar position, in the future.

 

Thanks,

 

B

[mjt2013]

Do try not to worry too much about an adjournment, I only mentioned it just in case but it may well be that your hearing will be for a sufficient time.

[butterflygirl]

I have now received the witness statement and draft order. The company are saying that service was incorrect. The reason they give is that they are a xyz company, not a litigation company, therefore did not understand how the process was supposed to work. Hopefully that's that sorted, as in, not a lot of sympathy from the judge.

 

The claim (to be brief) was in relation to a job they were contracted to do for me. They left it incomplete and I had to get someone else to finish it. In their witness statement they admit to contacting this other company, and allege that the other company are saying x, y and z - ie something different to the facts as they are/were - and of course meaning that the job was 'completed' by them originally, with no need to have any extra work done to complete, no need to bring another company in. My question regarding this isn't in relation to the 'he said, she said', my question is regarding anyones thoughts about the debtor contacting a second company brought in to complete a job, and then trying to use that in some way to get a set aside... I've contacted the second company to try to establish when the debtor made contact, what they said, what was said etc..

 

Also - I am allowed to write something to the courts in response to the above (refuting what's been said etc)? If so, what it is *called* (technical term), is there any particular method for doing this, will I annoy the judge if I do it?

 

If the CCJ gets set aside, does this reflect negatively in any way on the claim starting up again? Is it seen as a *win*, in any way at all, for the debtor.

 

 

Thanks,

 

B

[butterflygirl]

The company also state in their witness statement (re service) that they use their accountants as their registered offce. and that they changed their accountants on x date (prior to the claim even being lodged). They actually changed accountants/reg address over 2 weeks after the judgment, 6 weeks+ *after* they are stating in their witness statement.

 

I see this as a lie. I can prove it's a lie. Is this sort of thing at all relevant to the judge?

 

Thanks,

 

B

[Ganymede]

The company also state in their witness statement (re service) that they use their accountants as their registered offce. and that they changed their accountants on x date (prior to the claim even being lodged). They actually changed accountants/reg address over 2 weeks after the judgment, 6 weeks+ *after* they are stating in their witness statement.

 

I see this as a lie. I can prove it's a lie. Is this sort of thing at all relevant to the judge?

 

Thanks,

 

B

 

 

 

 

How can you prove it's a lie?

 

Don't trust Companies House website to be accurate they often take a few weeks to update the register.

[butterflygirl]

Hi Ganymede - they are saying that they changed reg office on xth october but they actually changed it in on xth december. I take your point re Companies House but imperfect or not, they're pretty much our only option for any sort of data on reg offices, presumably..?

 

Thanks,

 

B

 

 

How can you prove it's a lie?

 

Don't trust Companies House website to be accurate they often take a few weeks to update the register.

[butterflygirl]

Does this sound plausible..

 

The company who I have the judgment against wrote the actual name of the person who opened up the notification of default judgment IN their witness statement. This named person is a consultant for the company and works there regularly, but is also the Financial Director of her own consultancy company, and has been for 11 years. The witness statement claims that neither this person, nor anyone else at their office knew what to do with the default judgement, or how to respond - as the company are not a 'litigation company'.

 

Is it plausible that someone who holds the position of financial director, and has done for 11 years, would not know how to respond to a default judgement, or how to find out how to respond to a default judgement, and would simply do nothing? Would a judge see it as plausible or relevant, given that the person is specifically named (lord knows why!) in their witness statement...

 

Thanks,

 

B