backdoor ccj - removed with a Tomlin order? overpayment of wages but it wasnt it was their NHI mastake!!

[Kellya84]

Only found out a ccj on my credit file for £6500 that was put on Dec 2016 by a prev employer due to overpayment of wages.

 

 

I found out when checking credit file two months after judgement passed.

Did not receive any correspondence or court claim so therefore not given opportunity to resolve this before judgement passed.

 

 

Ccj has been filed in previous address.

Prev employee had current address

I have emails to prove notification of new address dated two years before ccj filed and also payslips with new address on.

 

 

Spoke to their solicitor advised that I'm thinking of getting ccj set aside as I was not given proper notification or recieved court claim.

 

 

They have since offered to reduce amount due to £6000 with a Tomlin order and advised this would set aside ccj.

Is this true?

Can a ccj be removed with a Tomlin order?

 

 

I was about to apply for a mortgage and obviously ccj is going to hinder this.

I'm willing to pay in full straight away to get ccj off my credit file.

 

 

Urgently need advice

[BankFodder]

A Tomlin order will not automatically remove a CCJ and with a judgement in place, I can't see that there would normally be any need for a Tomlin order. In fact as they have a judgement against you, I don't really understand why the solicitors are making their offer. However, if they did offer to agree to a set aside conditional on you signing a Tomlin order for the reduced amount, then this would work. I would not make any agreement with them if they did not put the offer in writing.

 

On the other hand, there could be some defences to this overpayment problem if you could tell us more about how the overpayment happened. It could be that the solicitor realises that they are in a weak position and that they were lucky to get the judgement against you by default.

 

If you read up on estoppel then you will see that if you received an overpayment in completely good-faith, then the employer may be prevented from claiming it back. Good-faith would basically mean that you had no idea and no reason to believe that you are receiving overpayments. This would tend to mean that you received the overpayments in small amounts over a long period of time. Furthermore, the overpayments must not have been used as a windfall to improve your lifestyle or to buy any luxury items but must simply have been applied to your normal living expenses. Finally, you would have to show a court that you do not have the money to repay and so that if the employer succeeded, it would hurt you.

 

If you could satisfy all of these requirements then your defence of estoppel would probably be successful.

 

On the basis of what you say, they have issued the claim against the wrong address even though they have had the correct address on file. This itself is almost a basis for a successful set-aside application. If you can explain the circumstances of the overpayment to us, we may be able to advise as to whether or not we think you have a chance of succeeding with a defence in estoppel.

 

It may well be that the solicitor is fully aware of this and is trying to get you signed up into a Tomlin order to secure payments for your employer

[BankFodder]

Follow the link to estoppel

[Kellya84]

The solicitor is acting on behalf of a payroll department who in error did not collect the correct amount of national insurance contributions from all their employees including myself.

 

 

To rectify this with hmrc they paid the national insurance bill to hmrc and then plan to recuperate it from the employees.

 

 

I was not aware that the incorrect amount of national insurance was being collected from my wages at the time.

 

I do feel that they are just trying to persuade me not to get the ccj set aside due to the basis that I had no knowledge of the court proceedings and they are trying to persuade me to accept the Tomlin order

stating that this would have the same outcome as a set aside and that this would get the ccj removed.

 

 

Iv advised them that I have emails notifying my change of address and also payslips dated before ccj with the correct address on yet I never recieved any correspondence or a court claim to my current address and the ccj was filed in my prev address.

[AndyOrch]

Thread moved to General Legal Issues.Please continue to post here to your thread.

 

Regards

 

Andy

[Kellya84]

I started working for them July 2014 changed my address with them August 2014 and left employment with them April 2015. Judgement was passed Dec 2016

[dx100uk]

the reason why they don't want it set aside or more correctly

going back before a judge

is because the 'cause' of it - IS THEIR NHI MISTAKE!!

 

not a wages over payment at all!!

 

go get it set aside.

IMHO they wont have a leg to stand on when a judge hears what they have done!!

[BankFodder]

£6000 over a period of only 10 months or so seems to be an awful lot to me.

 

Could you explain their calculations. Do you have a copy of the claim form? Please would you posted up here in PDF format

[Kellya84]

Thank you so much for your advice.

 

 

This was my feeling to be honest as they have sent me several email trying to discourage me from getting it set aside stating that it will take longer, cost me more in solicitor fees etc.

 

 

My main problem now is because I live in Northern Ireland and this was done under English law I cant find a solicitor here that is able to help me deal with it.

[BankFodder]

Please let us see the claim form

 

Also, where you in Northern Ireland before?

 

Once you get a set aside, if they decide to follow up and pursue the claim then the case will have to be transferred to your local court.

[Kellya84]

Il try get a copy of claim form to upload here.

 

Like I say Ive received no correspondence and only getting it all now through emails from their solicitor.

 

The intial claim was for £4940 but with 'fees' ccj went through at £6500.

 

Iv lived in Northern Ireland the whole time but worked for an English company

[AndyOrch]

The intial claim was for £4940 but with 'fees' ccj went through at £6500.

 

And they will settle for 6K...bless em

[Kellya84]

Ok I don't even have a claim form (this is ridiculous).

 

 

All I have is an email explaining why ccj was filed and a break down of how they worked out the figures.

 

 

How do I get the claim form?

This is what I mean I recieved nothing.

Had absolutely no idea this was going on.

Thanks for your advice so far it's proving very helpful

[BankFodder]

It's a bit like pulling teeth here. It would be nice if you would just give us all the details of the addresses et cetera so we don't have to tease it out of you bit by bit. Where were you working. Where was the job? Where was the company? Have you any idea where the claim was issued – meaning at which address? Was it an English address?

 

As far as getting a copy of the claim form, I should simply telephone the solicitor and tell them that you don't have a copy of the claim form and you want a copy. Also contact the court and ask them for a copy.

 

Presumably the claim was issued online and that means that you should be able at least to get a copy of the MoneyClaim reference number and get access to the details online. You need to make it a priority to get hold of this claim form. Who are the solicitors? – And quite frankly who are the employers? And where are they based?

 

It would be really helpful if you could give us all the information you have so that we can deal with this easily and quickly. Thank you

[BankFodder]

When you apply for the set-aside – which you will have to do, it would be best if you provide a draft defence.

 

Although we haven't seen the claim form yet, your defence will be roughly: –

 

1. The claim is denied
   
2. the claimant made errors in the national insurance payment system and have since tried to recover money from their employees including myself.
   
3. I had no way of knowing this at the time and I received my regular wage payments in good faith
   
4. the claimant is this estopped from making this claim
   

[Kellya84]

Employer was larsons group an offshore construction company based in England I was working as a rigger all over the world.

 

Their payroll department was slick pay ltd who have filed the ccj using napthens llp.

 

Ccj was filed against another northern Ireland address my prev address which I left in August 2014.

 

They were notified of this in the same month.

 

I will request the claim form now

[BankFodder]

Incidentally, I'm afraid that they set aside application will cost you about £250. It will make it a lot easier if you get the solicitors to agree. If they are sensible and businesslike then they will agree. If they refuse then you will have to do make your set aside application in the face of their objections but on the basis of what you tell us and on the basis of the potential estoppel defence that you have, I estimate your chances success at better than 95%.

 

If they then decide to go ahead with the claim then it will have to be heard in your local court. I estimate your chances of success with your estoppel defence at being very high and you will recover any fees that you have paid including your set-aside fees.

[BankFodder]

Thank you, that explains even more why they are prepared to agree to set aside in return for payment. They realise that they will probably lose a set aside application and at the very least, the application and also the eventual trial will have to be heard in Northern Ireland and this will put them to expense.

 

I don't imagine that they realise that you may plead an estoppel – and you probably will find that they have never dealt with an estoppel defence before in their lives.

 

Of course, you must be prepared to go to court and you must be prepared to lose. However, I think that there is a high chance that once you get your set-aside and you put in your defence that they will call it a day. However, be prepared to lose.

[BankFodder]

Also, when you phone the solicitors, if they cause any problems about providing you with a copy of the claim form, tell them that in that case you will apply for set-aside immediately and the in your application you will explain to the court that you have received no documents and that they have refused to give you any copies in response to your request for them.

 

There should be no problem with them getting you a copy of the claim form emailed in PDF format tomorrow.

[Kellya84]

Thank you very much for your advice. I'm requesting the claim form now and then il going tot take it from there.

[BankFodder]

Read our advice on applying for set-aside

 

Also, if you have any ex-colleagues in the same boat then let them know what is happening with you and tell them to come here.

[AndyOrch]

you cant have a claim set a side and stayed at the same time...the Tomlin Order is nonsense.

[Kellya84]

This is the Tomlin order Iv received this evening.

 

What does set aside judgement mean?

 

I'm sorry I really have no clue in any of this.

 

Iv only replied to ask for claim form

 

Sorry managed to get it amended. Claim number should longer be visable.

What does this all mean in simple terms?

tomlin.pdf

Edited February 15, 2017 by dx100uk
pix properly redacted and converted to pdf - dx

[BankFodder]

First off, this is a Tomlin order and that suggests to me that you have agreed with them over the telephone to sign a Tomlin order in return for having the judgement set aside.

 

I hope you have not signed a copy and returned it to them. If you have then everything on the set is waste of time and you have needlessly lost your money.

 

Please will you confirm to us that you have not signed anything. If you have not signed this Tomlin order then let us know and I will tell you what to write to them. Basically they are taking advantage of you in the fact that your litigant in person. They are getting you to sign a Tomlin order without any legal advice and you're being ripped off. They will breathe a sigh of relief if you sign this document.

 

Second off, this is not a claim form and we needed to get the claim form. Please we set about doing this.

 

In fact thinking about this, it is even more serious because as they know that you haven't received any court papers they are now asking you to sign the Tomlin order giving up all of your rights without even knowing what the claim against you is really all about. I would be thinking about making a complaint to the Solicitors Regulation Authority.

 

A set-aside order is essentially an order that the judgement be cancelled. A typical order would be that the judgement is set aside (cancelled) and that the defendant (you) have 14 or 28 days to file a defence. In other words a set-aside order sets everything back to zero and if you want you can file a defence and then the case proceeds as normal.

 

In this case, the claimant's are offering to agree to a set-aside and presumably if you pay the money then there will be no further action on the case. Of course, if the judgement is cancelled then this would allow the CCJ on your credit file to be removed. However, we think that essentially you're being tricked. If you apply for a set-aside then you will get it anyway without their agreement. We think that if you then defended on the basis of an estoppel, that they would be unlikely to win. Of course, they would be a risk for you we think it is minimal.

 

As we have already said, the claimants have been very lucky to get this judgement against you and they realise it. You are now being manipulated into agreeing to pay the money without challenging anything.

[dx100uk]

£1000 a month NHI contributions....yea go kid someone else slick pay ltd