Had an Illegal CCJ set aside, Can I go through small claims for Damages?

[Andymcq]

I moved house three years ago.

 

• I informed United utilities of it and transferred the account and credit to a new address.
  
• Paid bill at new address, no problems.
  
• 2 Months ago found CCJ for Old address water rates.
  
• Got details on CCJ it was for when I didn't live there.
  
• Court details say Papers were served on me.
  
• United Utilities have applied to have the judgement set aside
  
• Have admitted it was their mistake and they do have a record of my current address and I did inform them.
  
• They are now refusing to contact experian/call credit/equifax to clear the record
  
• They are insisting I have to wait for the courts to decide.
  

This has caused me a nightmare Im waiting on changing my car, I cant as I can't get a lease or credit. I'm looking to perform some other financial transactions and this is seriously impinging my ability. I'm a director of a company so its also affecting the company (Most company purchases have to be guarenteed by a credit worthy director nowadays)

 

So due to the problems UU have caused me can I sue them for damages?

 

They have been wholly negligent, they had my current address and it was linked with my old one, I was on the electoral roll for both addresses in a consecutive manner. The tenant at the old address had a forwarding address for me, and had used it very many times.

The CCJ was never ever served on me? though it easily could have been.

 

I never had a chance to respond, did someone perjure themselves to get this judgement? has someone who works for UU had to swear an oath that this judgement was correct to Northampton court?

 

Im absolutely livid about this its caused a great deal of embarrassment and has seriously impinged on my business and life, surely there must be a way of getting proper redress when large company's abuse the court system and libel people who have done nothing wrong.

 

Thanks in advance for any replies.

Edited March 3, 2014 by andydd
Correcting grammar

[havinastella]

Google Durkin.

[Andymcq]

That doesn't sound safe to Google...

Edited February 28, 2014 by Andymcq

[Andymcq]

Hmm had a read, but it relates more to a default notice correctly/incorrectly applied depending as to how a credit agreement was read in relation to the consumer credit act?

 

Is my case a little different (Though the result is similar) I had only entered into a deemed contract (water supply and waste water removal) I fulfilled my obligations and I kept supplier informed of my address, they partially ignored this information.

Someone at the supplier didn't carry out proper due diligence on performing debt collection and serving court papers. Secondly someone in UU's employee perjured themselves under oath that I had been properly traced, and served with papers, and given the option to defend myself.

 

The fact they didn't do this and then lied to the court is criminal. If it was an individual it would be an extremely serious matter.

[SuperVillain]

Perjury refers to a witness giving evidence in a trial, I think your situation would amount to contempt of court - covered by Part 22, Part 32.14 and Part 81.17 of the Civil Procedure Rules (CPR). Essentially the person signing the SOT needs to have an "honest belief it is true". You'll be hard pressed to prove otherwise, especially given the rules on who can sign an SOT (see practice direction 22 para 3.4 and 3.5) - e.g. picture the scene - manager asks one of his credit controllers - have we tried tracing this person? CC says yes and so the manager signs the SOT. Manager honestly believed his SOT was true.

 

With that in mind looking at Practice Direction 81 para 5.1-5.7 in my opinion proceedings for contempt of court would be a non-starter in this case.

 

How are they dealing with the set aside, is it by consent, and if so have you been sent a consent order to sign? Are they saying they'll amend the claim form and serve it at your correct address and allow you time to file a defence?

 

You say they're saying they'll wait for the Courts to decide the case so it sounds like they believe the money is still owed to them. It wasn't clear from your post but I think you're also saying the money they're claiming has already been paid when the account was transferred.

 

You mention damages - you'd have to put a figure on those if you wanted to sue. Can you prove any losses as a result of the CCJ? If so when Judgement is set aside you may want to consider a counter-claim for any losses. Furthermore you mention libel - the Defamation Act 2013, which I believe came into force in January, at section 1 now requires there to be an element of serious harm to reputation, and concerning a business, serious financial loss for a claim to be started. There's probably not been any cases as it's only been 2 months, however I doubt this will qualify as serious harm.

[Andymcq]

Perjury refers to a witness giving evidence in a trial, I think your situation would amount to contempt of court - covered by Part 22, Part 32.14 and Part 81.17 of the Civil Procedure Rules (CPR). Essentially the person signing the SOT needs to have an "honest belief it is true". You'll be hard pressed to prove otherwise, especially given the rules on who can sign an SOT (see practice direction 22 para 3.4 and 3.5) - e.g. picture the scene - manager asks one of his credit controllers - have we tried tracing this person? CC says yes and so the manager signs the SOT. Manager honestly believed his SOT was true.

 

With that in mind looking at Practice Direction 81 para 5.1-5.7 in my opinion proceedings for contempt of court would be a non-starter in this case.

 

How are they dealing with the set aside, is it by consent, and if so have you been sent a consent order to sign? Are they saying they'll amend the claim form and serve it at your correct address and allow you time to file a defence?

 

You say they're saying they'll wait for the Courts to decide the case so it sounds like they believe the money is still owed to them. It wasn't clear from your post but I think you're also saying the money they're claiming has already been paid when the account was transferred.

 

You mention damages - you'd have to put a figure on those if you wanted to sue. Can you prove any losses as a result of the CCJ? If so when Judgement is set aside you may want to consider a counter-claim for any losses. Furthermore you mention libel - the Defamation Act 2013, which I believe came into force in January, at section 1 now requires there to be an element of serious harm to reputation, and concerning a business, serious financial loss for a claim to be started. There's probably not been any cases as it's only been 2 months, however I doubt this will qualify as serious harm.

 

The set aside is happening with permission, I have signed and returned the form, UU are also paying the court fee for this. They are saying they are asking the court to remove the judgment.

 

UU have acknowledged from the beginning this is there fault, they acknowledge I as an individual have had continuity of supply with them at two different addresses, they acknowledge as one account should have been closed another was opened. For reasons only known to them they didn't close the old account. I understand that a statement of truth in a small claims claim can be perjured if its found there has been a deliberate lie.

 

There own documentation shows they knew of my whereabouts and they had updated my address on there systems, My credit file shows my linked addresses and the electoral roll also shows the correlation between the date and addresses changed at the time of the move.

 

Would a court not think any credit controller would have to demonstrate proper due diligence? and surely before issuing something as serious as court papers? Also do they not have to prove that I received the defense papers for it to be valid anyway? I think any court would assume that a credit controller would be familir in the proper way to trace a person, in cases like this is not the case that the utilities would normally send an investigative officer to the address. In my case they did none of the above.

 

As for the repercussions, they are serious and I can document it, I had the option to buy a parcel of land next to my home, however I couldn't raise the finance at the time. Another party then completed the purchase and has benefited to 100% profit. The CCJ directly caused me to lose my option on this land.

 

I do view the defamation as serious, my credit file shows over 30 recent enquirys, each one will have been a service I was looking to take out since the CCJ has been issued everything from, home to car insurance has been renewed as has mobile phone contracts and annual borrowing rates (annual renewal on overdraft). Having sold finance in the past I know how detrimental credit scoring can be to a rate, however as I have already accepted these rates without knowing that the CCJ was there I am unable to know what rate I might have been offered had I had an unblemished credit record, and therefore it is not easy to quantify what my losses could be, Though I will start an exercise to find out.

[SuperVillain]

Would a court not think any credit controller would have to demonstrate proper due diligence? and surely before issuing something as serious as court papers? Also do they not have to prove that I received the defense papers for it to be valid anyway?

 

They don't have to prove you received the Claim, just that it was served at your usual or last known address. It wasn't which is why they have agreed to set aside Judgment. They haven't really got much of an argument in this regard as you have an account with them at a new address.

 

So the set aside is by consent and as I suspected you don't owe them any money - what did you mean when you said "there insisting I have to wait for the courts to decide." To decide on what exactly? Are they still pursuing you for the money on the old account after you moved out? Or are they discontinuing their Claim against you?

 

And it's contempt of Court not perjury, that's what the CPR says about false statements of truth.

 

But as I said look here at PD 81 - http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-81-applications-and-proceedings-in-relation-to-contempt-of-court/practice-direction-81-applications-and-proceedings-in-relation-to-contempt-of-court#IDA2EAKC

 

5.2

Where the permission of the court is sought under rule 81.18(1)(a) or 81.18(3)(a) so that rule 81.14 is applied by rule 81.18(2) or 81.18(4), the affidavit evidence in support of the application must –

(1) identify the statement said to be false;

 

(2) explain –

(a) why it is false; and

(b) why the maker knew the statement to be false at the time it was made; and

 

(3) explain why contempt proceedings would be appropriate in the light of the overriding objective in Part 1.

 

I honestly think you'd struggle to prove it was dishonest - (2)(b) and also to justify why contempt proceedings should be brought - (3). They're clearly incompetent, that's easy to show from the lack of due diligence. It's a bit of a leap to go from being incompetent to being a liar.

 

You'll have to show that whoever signed it knew what they were signing was false when they signed it, not that they ought to have looked at the claim harder to determine whether it was true.

[steampowered]

Its not contempt of court or perjury because you can't prove dishonesty.

 

You would struggle to bring a negligence claim because I don't thinkyou can show the existence of a duty of care. This is a requirement.

 

I think there might be a viable claim under the DPA. Specifically section 13: 'An individual who suffers damage by reason of any contravention by a data controller of any of the requirements of this Act is entitled to compensation from the data controller for that damage'. You would be claiming for their failure to keep your personal data up to date, see http://www.legislation.gov.uk/ukpga/1998/29/schedule/1.

 

I'm not sure you can claim for wrongfully issuing proceedings directly, but I think the DPA claim could get you to the same place.