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

[panther12]

I do hope the OP hasn't signed that consent, especially if it's the fault of the employer that resulted in the underpayments. No wonder they are coming across all nice to try and please the OP into consenting the set-aside in return for £6k.

[Kellya84]

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.

 

Hi

no I have not agreed to the Tomlin order with them or signed anything.

 

 

All I have said is that I will gain further advice and instruction from my solicitor.

 

 

I'm currently offshore at the moment in Africa so Ive informed them there is nothing I can do until my return next month.

 

When I recieved this Tomlin order last night all I replied with is a request for the claim form and that I will be in touch once iv spoken to my solicitor.

 

 

I have not said that I agree to the Tomlin order or signed anything.

 

My wife in Northern Ireland is currently trying to find a solicitor who is able to deal with English law for my return.

 

I do feel they are trying to trick me and manipulate me into signing.

 

 

I can assure you nothing will be signed until i firstly recieve the claim form and I get someone to look to into this whole case.

 

Thank for your advice

Much appreciated

 

Ps Iv since learned other ex colleagues are in the exact same position some for a lot larger figure than myself. Iv passed on advice to them and referred them to this site

 

This is the initial explanation of 'overpayment'

docs1.pdf

[BankFodder]

You don't need a solicitor. I can promise you that the advice you getting here in respect of this kind of thing is top-notch and well within our experience. You won't find a single solicitor who has ever had to deal with an estoppel in their whole life. They will take you for a load of money and simply start exchanging correspondence and eventually they will probably advise you on some kind of compromise. The law relating to this is exactly the same and it is simply the choice of forum which is different – which in your case will be a court in Northern Ireland.

 

I suggest that you call your wife and tell her not to bother looking around for the legal help but rather to start following the thread on this forum. In this kind of matter you won't find anybody more knowledgeable, more experienced and more kick-arse then we are. And we're completely free – although if you want to give as a donation when it is all sorted out, it will always be very helpful.

 

If eventually you prefer to get a solicitor then of course, go ahead – but I suggest that you leave it as long as possible before you start spending your money

 

Also, please will you upload your documents in PDF format – single file multipage

[BankFodder]

By the way, I can see that you are in fairly regular contact with the other side. Is this all on the telephone or is it in writing? I particularly concerned that you have now disclosed to them that you are abroad anywhere bill to deal with anything until next month. This could give them an opportunity to start executing the judgement despite the fact that you believe that you are in the middle of some kind of discussion or negotiation.

 

Don't forget that these people are pretty anxious to get their settlement and am quite sure they realise the vulnerability of this situation. They have been very lucky so far.

 

Personally I would move immediately to begin the set-aside application. I would certainly be doing everything in writing. What is the situation on the claim form? Have you asked for it? What have they said? It shouldn't take the more than five minutes to get it to you by email.

[Kellya84]

Sorry I'm in the middle of the sea and my wifi connection is not great so having trouble uploading documents.

 

 

All correspondence has been through email with their solicitor.

So that I have a record of everything.

 

Iv sent an email requesting the claim form and received no reply so far.

 

Not that I'm considering this Tomlin order but does setting aside with this order even remove the ccj from my credit file??

 

 

This is just something that has stumped me as I was under the impression it could only be done before judgement had passed.

[BankFodder]

Set-aside Maybe we never addressed your initial question directly.

 

The Tomlin order represents an agreement between you and the other side that they will get the judgement set-aside and in return you will pay them £6000. If it doesn't happen then the case can proceed – particularly that if you don't pay the money they can proceed to ask for judgement against you. There is no order as to costs which means that they will bear their own costs and you must bear any of your costs.

 

In order to put this Tomlin order into force, it must be signed by you and it must be signed by the judge.

 

Once that happens, the judge will set aside the judgement at the same time and then you can organise its removal from the County Court register.

 

So that basically states the position.

 

However, our concern has been that you're being ripped off.

 

First of all it is clear that the whole episode has been caused by the error of your employer. They have erred in respect of the incorrect payments and they have also erred in not serving documents on your correct address.

 

Because they failed to discuss anything with you before issuing the claim – through their own fault by mis-addressing correspondence, they are forcing you to incur interest and any fees on the claim. This is extremely unfair and even if you were to pay the money, it should be at the net amount and your employers should bear the burden of their own mistakes.

 

To take it one step further, because the overpayments are being made as a result of their own negligence and because you received the benefit of these payments in good faith and you couldn't possibly have known that these mistakes were being made, then it would be unfair of your employer to an shoulder the responsibility of this mistake on to you. On this basis you could file a defence based on an estoppel which has already been discussed in this thread.

 

So you have got three possibilities: –

 

 

1. Simply go ahead, accept their offer, save a few quid, get rid of the CCJ and pay them the six grand
   
2. tell them that you will pay them the net sum but they will have to bite the bullet on the rest because it is all their fault and that if they won't then you will challenge the whole thing with an estoppel
   
3. tell them that you have now taken advice and that you realise that you can challenge the whole thing on an estoppel and that you are going for the set-aside and if they want to fight you and they can fight you in Northern Ireland but that you expect to win
   

I think that by and large you have the upper hand. They are in a weak position. I think that you could dictate terms. If you wanted, you could start off from position three as your negotiating position and then fall back to position two where you simply pay the overpayment but they have to suffer the loss of interest and any fees. You might think that this is a fair middle ground.

[Kellya84]

Thank you all clear now in my head.

Waiting to see if I receive the claim form that Iv requested and il take it from there.

[dx100uk]

I have sorted that document for you.

and unhidden it

 

 

well done on the Africa link..

better comms and info coming from you than what we get with people in the uk..

 

 

dx

[Kellya84]

Thank you

[BazzaS]

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

 

Beg to differ.

 

Set aside doesn't remove C's claim, merely returns the claim to a stage pre-judgment, but the claimant can still persue it : else D wouldn't then need a defence (such as estoppel) to file / serve.

 

Mind you, the OP wants the claim reset to the AOS stage : as they'll want to contest jurisdiction!

They want to hold fire on their defence until it is in the courts for NI.

 

The OP should still ask them for a set aside by consent, noting that if they don't consent the OP will pay for the set-aside application but seek costs for it, and will have no problem showing the claim form was served on an old address, C being aware of the new address at that time!

[AndyOrch]

Define " a stage pre judgment " BazzaS ?

 

Andy

[BazzaS]

If set aside on grounds of issue to an incorrect address it can be reissued to the valid address.

 

The claim is re-issued : C can stay it at that point.

It isn't extinguished by the set aside.

 

If a claim wasn't statute barred when issued it can continue after the judgment has been set aside (even if it might be statute barred were it a new claim to be issued).

[Kellya84]

Iv since received an email advising me they will send the claim form to my solicitor. I don't have a solicitor (Iv not told them this). Iv replied asking for it to be sent to me directly.

[BankFodder]

Absolutely right. I hope that you have said that in writing. If I were you I would tell them that you are a litigant in person. In principle this places an obligation upon them to treat you more fairly.

[Kellya84]

Absolutely right. I hope that you have said that in writing. If I were you I would tell them that you are a litigant in person. In principle this places an obligation upon them to treat you more fairly.

 

All correspondence has been through email. Iv no access to telephone on ship. I will keep you guys updated. Thanks again