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Default Judgment - Should I wait? ***Paid in Full Success***

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Hello again,

 

I have issued a 1-2k claim against a service provider "Spottish Powder" using MCOL on 21 JAN. They filed an AOS, and time to file the defence expired, either today or yesterday, I think. MCOL will now allow me to file for a DJ. Should I do this, or wait?

 

Thanks in advance.

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Do immediately. Don't hang around. This is not a time for prevaricating.

 

If you get the judgement in then once again go for enforcement immediately. In view of the amount of money, I would transfer up and get HCEO in – but come here and ask us about it before you do. Don't hang around.

 

Having said all of that, maybe you can tell us a bit about it. I'm sure we are all very curious


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Thank you for the quick reply. I have applied for the judgement and have made a small donation to the site. I will post once there is an update.

 

"Having said all of that, maybe you can tell us a bit about it. I'm sure we are all very curious"

 

I will tell you once I get home, I am on the road today. Thanks.

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Thanks for the donation. Everything is gratefully accepted – although frankly you should wait until you get your money before you start giving it away. Then you can give us even more!!!

 

Start researching the business of "transfer-up" which is the procedure for transferring a County Court judgement of more than £600 to the High Court and then for enforcement by HCEO.

 

There are various HCEO firms around the country which will enforce the judgement for you and who will carry out the transfer-up procedure themselves for, I think, about £60. You get this money back if the judgement is successfully enforced.

 

When dealing with HCEO, make sure that the agreement is that they absorb all costs in the event that the enforcement is unsuccessful. HCEO enforcement is a costly business and you want to make sure that they are doing it essentially for a no-enforcement-no-fee arrangement.


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I currently have a warrant with XXXXXXXXX. They get the writ for just the court fee and charge £75 an address. Because they've been on the TV the debtor paid before the visit so it didn't cost me anything except the writ fee. I also find their customer service people to be really good.

 

The judgement status is showing as "requested" Any idea how long that should take until it is issued?

 

SJ still showing as "requested". No Defence showing as received. Any ideas what is going on?

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The Judgment was issued last night at 7pm. Should I transfer to HCEO straight away, or is there some benefit to waiting?

 

Thanks

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The Judgment was issued last night at 7pm. Should I transfer to HCEO straight away, or is there some benefit to waiting?

 

Thanks

 

Do it now.

 

Thanks for the donation. Everything is gratefully accepted – although frankly you should wait until you get your money before you start giving it away. Then you can give us even more!!!

 

Start researching the business of "transfer-up" which is the procedure for transferring a County Court judgement of more than £600 to the High Court and then for enforcement by HCEO.

 

There are various HCEO firms around the country which will enforce the judgement for you and who will carry out the transfer-up procedure themselves for, I think, about £60. You get this money back if the judgement is successfully enforced.

 

When dealing with HCEO, make sure that the agreement is that they absorb all costs in the event that the enforcement is unsuccessful. HCEO enforcement is a costly business and you want to make sure that they are doing it essentially for a no-enforcement-no-fee arrangement.

 

OP - remember these salient points when appointing your HCEO.

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The only danger of moving too fast is the possibility of them making application to set a side.

 

 

Andy


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The only danger of moving too fast is the possibility of them making application to set a side.

 

 

Andy

 

Set aside is something that I am always really worried about. My previous post on here involved a set aside with a 156 page witness statement and the hearing took place while I had a sick wife and baby at home. I found the experience awful, even though I prevailed.

 

I have transferred it to DCBL HCEO's yesterday and paid the £66 to transfer it up to the HC from the CC.

 

Today I called the defendant's office to confirm they had been open and staffed for the past 4 days. They confirmed they had and I then hung up having recorded that fact. They are a large company with lawyers in a litigation department and a large outside law firm representing them. That they failed to file a defence is their problem and I have confirmed that they were open and able to conduct their litigation.

 

The claim relates to boiler home care. 25% of it must succeed as they took payments and cancelled the contract against their terms and for no allowable reason. The other 75% is for damages due to a claimed breach of contract, part repair costs and part lost time due to 3 failed appointments. I'm happy to go to trial but would rather they just paid up as I'm busy with work.

 

Thanks for the advice, i'll keep you all informed as we go along.

 

Do it now.

 

Have done, thanks.

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Sthis morning I got a Letter from a magic circle law firm offering 36% of the judgment value and enclosing a draft Tomlin Order.

 

There was nothing in there except a brief suggestion that their client retains the right to apply for set aside.

 

They are clearly getting all paperwork as they confirme in the letter that they even have the HCEO letter from 3 days ago.

 

I have written back saying that as they have failed to reply to 2 pre action letters, or file a defence, that they should pay the claim in full before the HCEO turns up next week, as they are unlikely to get their costs (which will be 1000's) even if they get set aside.

 

The judgment is now 11 days old, they knew about the claim and failed to file a defence following them acknowledging it. Do you think that applying for set aside at this stage is "promptly within the meaning of CPR 13.3 (2) ?

 

Any help welcome, I hate hate hate set aside applications.

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Personally, I would see what the HCEO turns up with.

 

Applying for a set aside 'promptly' generally means within 2 months. So they could apply for a set aside, but frankly I'm not sure it is worth them doing that over a £1-2k debt.


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Financially it doesn’t make sense, their law firm is going to be billing them a fortune and in my experience they will 50/50 get the set aside and then get a proper bollocking by the judge along with a costs order against them.

 

That said, all 3 of the set asides I’ve had filed against me were by people or firms that wanted to win the argument and sometimes that’s the mindset that prevails. Fingers crossed!

Edited by dx100uk
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There will be no set aside D*A P*PER, the City Law Firm have confirmed that their client have taken the "commercial decision" to pay DCBL, the HCEO.

 

I sent them a letter making it clear that SP, the defendant, had ignored 2 LBA's, had file an AOS, and had then failed to file a defence.

 

I pointed out the concequences of this to them post Jackson.

 

"Rule 1 of the CPR has been amended as part of the Jackson Reforms.

 

These reforms have highlighted the importance of following the CPR:

 

FORMER RULE

 

1.1(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly. But the new formulation is significantly different:

 

CURRENT RULE

 

1.1(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

 

You will see that Rule 1, includes the words "proportionate cost"

 

Reading further into rule 1 we see that:

 

CPR 1.1 now carries on as follows:

 

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

 

(a) ensuring that the parties are on an equal footing;

 

(b) saving expense;

 

© dealing with the case in ways which are proportionate

 

(i) to the amount of money involved ;

 

(ii) to the importance of the case;

 

(iii) to the complexity of the issues; and

 

(iv) to the financial position of each party;

 

(d) ensuring that it is dealt with expeditiously and fairly;

 

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

 

(f) enforcing compliance with rules, practice directions and orders.

 

 

In light of the above, your client is very unlikely to be able to get the judgment set aside. This was a small claim, and your client failed to reply to LBA's, provide a service address or even file a defence. They did however file an AoS, which means they lose the right to challenge service, or jurisdiction.

 

Sadly for SP, the CPR and the case law go even further:

 

Rule 3.9 and the test laid down in Denton makes it clear that your client needs not only a set aside, but relief from sanctions.

 

I enclose some reading:

 

https://zm4b8103lu53ydv9q1e2go51-wpengine.netdna-ssl.com/wp-content/uploads/2015/04/Proportionality-5-March-2015.pdf

 

http://www.civillitigationbrief.com/2017/05/12/relief-from-sanctions-the-cases-an-impressive-and-thematic-list/

 

http://www.stjohnschambers.co.uk/dashboard/wp-content/uploads/Relief-from-Sanction.pdf

 

https://www.lambchambers.co.uk/news-and-resources/relief-from-sanctions-denton-v-th-white-ltd-2014-ewca-civ-906.htm

 

http://www.bailii.org/ew/cases/EWCA/Civ/2016/141.html

 

http://www.civillitigationbrief.com/2016/03/10/denton-criteria-overrides-allegations-of-fraud-court-of-appeal-decision-a-wake-up-call-for-the-insurance-industry/

 

https://www.clerksroom.com/downloads/447-Nfarticle0913.pdf

 

I cannot see any circumstances in which a defendant who failed to file a defence after ignoring 2 CPR compliant Pre Action Letters would get relief from sanctions, following Gentry -v- Miller and UK Insurance Company 2016.

 

That relief is clearly needed as part of the rule 13 set aside application you may choose to make and as such the application under rule 13 will almost certainly fail.

 

At every stage in the proceedings your client has ignored the CPR"

 

The matter is now settled and is a good example to those looking for a set aside in the current climate.

Whether you think the case is weak or strong, sanctions will apply if you fail to file a defence.

 

Thanks for all the advice. :)

Edited by dx100uk
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I have had confirmation that the respondent Scottish Power have paid the judgment debt, and DCBL's fees.

DCBL will hold the money for 14 days and pay me on day 15.

 

The particulars of claim if anyone is interested are :

 

I entered into an agreement for boiler repair cover with policy number 1*************8 based on the respondent's® standard terms on or around ** October 2015.

 

The contract required the claimant © to allow an initial inspection of the boiler prior to cover commencing.

 

An an appointment was made in November 2015, which R failed to attend.

Another appointment was made in December 2015, which R failed to attend.

Another appointment was made in July 2016 and an engineer came.

 

Excuses were made that the boiler had existing faults and cover was denied.

 

The contract does not allow R to miss appointments and then deny cover.

 

C claims,

£472 for lost wages & £542

for repairs to the boiler, and, or in the alternative £179 as a return of premiums

paid for no cover.

The claimant claims interest under section 69 of the County Courts Act 1984 at the rate of 8% a year from 17/08/2016 to 21/01/2018 on £1,193.00 and also interest at the same rate up to the date of judgment or earlier payment at a daily rate of £0.25.

 

This is a knocked up set of particulars designed to fit the box.

I know the particulars could and should be better, but they are sufficient for a small claim.

 

I wasn't in the right place to draft separate particulars and in this case, they did the job.

 

I was asked at the beginning of this thread what the claim was actually about and now it is settled in full, it seemed appropriate to post the details in full.

 

Thanks as always for the advice.

Edited by dx100uk
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