backdoor CCJ Aktiv Kaptial - set aside - whats next?

[DonkeyB]

Yes, you can refuse a discontinuance.

 

Personally I would simply continue with the counterclaim. All the evidence you give for the points you raise would have to be refuted by them (with paperwork).

 

But you might want to offer an out of court settlement on a WP basis. May also be worth a look at a s36 offer, but this is getting complex for an LiP...

[batty69]

What's a WP basis ?

 

I must admit after 9 years I want my day in court with this,

I seriously want my claimant to explain to the court how I used the credit card I allegedly defaulted on to pay my CC fees

[citizenB]

WP = Without Prejudice

[batty69]

reading up more It's not looking that great an idea going for a set-aside of the NoD.

I need to get emotion out of the way and back to playing the game.

 

I now need to concentrate on my pt20 CC,

previously my plan was to allow my claimant to hang themselves in their own claim,

then all of my evidence would be supplemental to their vexatious and negligent behaviour.

 

I'm wondering if this is a viable plan.

 

1) seek permission to amend my particulars of claim, to cite Durkin in my PoC which states "general damages to be assessed by the court"

 

2) now argue the case about the previous CCJ I received, which was a result of the claimant supplying the court with false address for me.

 

My main thrust with the CC would now be around the fact that as the claimant has now discontinued,

that had the claimant given the court the correct address to start with.

 

I would have defended and they would discontinued,

hence my CCJ was a result of their negligent actions,

and I avoid getting into nitty gritty of proving the debt isn't mine.

 

Is this a viable tactic ?

[batty69]

Hi all just picking this up again, court date has been confirmed for part 20 CC, fees paid, etc so everything back on track.

 

I want to amend my PoC's for the following reasons.

 

1) A tidying up exercise as they are a bit of mess (I was given less than a weeks notice by the court to submit the claim)

2) I want to quote the relevant case law raised by Durkin in his case.

 

3) Change my angle of attack, previously my case was built around having their claim dismissed and the bulk of the evidence (or lack of it) being provided by them. This would have shown that their actions were negligent and vexatious. and then subsequently prove my losses.

 

Their discontinuance has put a bit of a spanner of the works with this approach, as there is lots of stuff I am going to find difficult to bring into play now as I know the other side will argue that it's not relevant.

 

So I want to refocus my claim and narrow down the issues (in accordance with judges order), to the CCJ, discontinuance, financial loss due to CCJ, damages due loss of "credit worthiness" due to the CCJ.

 

In essence I want to boil my case down to the following points.

 

1) Claimant negligently filed a claim with an incorrect address to court

2) Due to false address a CCJ was incurred

3) I lost my job because of CCJ

4) My "credit worthiness" was damaged by said CCJ

5) CCJ was subsequently set-aside

6) Claimant discontinued.

 

The crux of the case would then be 1) & 6), i.e. if Claimant had supplied court with the correct address to start with, then in all likelihood claimant would have discontinued the case and the events of 2)-5) above would not have happened.

 

Any advice ?

[citizenB]

I will flag for andyorch

[AndyOrch]

....any slight alteration can be done vis a N244 application with the courts approval on notice...anything major could require a complete redraft and therefore require either a discontinuance or withdrawal.

 

Regards

 

Andy

[batty69]

Thanks Andy, most of them are minor.

just re-phrasing the PoC's as they are quite long winded.

 

However the one I am concerned about,

is adding "Damages due to loss of credit worthiness,

damages to be assessed by the court"

 

I guess this is major,

as I am essentially bringing in a new claim.

 

From my research this seems to be allowed ?especially as my hearing isn't till October,

so judge can't object to it being to late,

although I am aware I can be leaving myself open to a possible wasted costs order.

 

Is what I've read correct ?

If so how does it work in practice rather than what I have read on the net,

in terms of the courts reception to a claimants change of PoC's.

 

One of the main reasons is that when I submitted my pt 20,

the small claims limit was only £5k and was only changed to £10k a few weeks later.

 

I limited my claim to prevent it going fast track.

Now I want to change it to take advantage of the higher limit.

 

Would a judge see this as a valid reason for the amendment,

or would he see me as someone who was just being mercenary ?

[AndyOrch]

Any amendment would still be considered as 5K limit SCT because of the date you issued.It would be obvious to the defendant and the Court your reason for change. Discontinuence or withdrawal would be a more viable option to get it into the new threasholds.

[batty69]

I decided against this in the end,

to be honest £5k is nothing to me and will probably cost me more than this in lost time doing a new claim.

[batty69]

OTrial date is at the end of the summer,

what is my time table now ?

I.e. exchange of documents and W/S.

anything else I need to be doing ?

 

AOn the AQ I refused mediation,

however in the light of the claimant discontinuing and only my claim now being live I think it is wise that I should at least discuss the matter with them.

so as to avoid the awkward situation when the judge asks what attempts I have done to resolve the matter and I answer "none".

 

My initial refusal for mediation,

was due to the fact that their claim had been on going for 12 years and we were onto the 3rd court case related to the matter,

then mediation was unlikely to be fruitful.

However I guess with the discontinuance the ball has been thrown into my court.

 

Should I ask for mediation now ?

 

If so, how do I go about it ?

[DonkeyB]

A letter to the oppo, on a WP basis, suggesting either mediation or your thoughts on a resolution. If they fail to accept mediation, or refuse to negotiate and you win, then you can raise the issue at the costs stage (ie. the WP letter can be used to justify your costs).

 

What kind of mediation/resolution would you be open to?

[DonkeyB]

Further down the line, if negotiations are instigated and you need time to resolve, it would look very good from your side if you requested from the court a stay to try and resolve issues.

 

I think you now have the upper hand to some degree. They would be lucky to get out with just £5k, IMO. Shame that’s all you’re now limited to.

[batty69]

An offer to them to settle out of court would do, what other forms of mediation are open to me ?

[DonkeyB]

Employing a professional mediator! But that would cost real money, and both sides should contribute.

[batty69]

Hi Donkey I'm going to get something off to them in the next few days.

 

One question I have is regarding the WP,

as far I understand that cannot used in the case only after the conclusion,

hence it being raised at the cost stage.

 

My problem is that the case is now proceeding on counterclaim only,

I.e. effectively I am the claimant and they are the defendant.

 

When it comes to trial and the judge asks what

"actions did you to prevent this coming to court"

 

I answer none,

"did you take up the offer of mediation"

again none,

 

"have you tried to settle out of court"

again none.

 

I nearly lost my set aside hearing because the other claimed I had turned down their consent order

, I know judges get very annoyed if they think you havnt attempted to resolve the issues outside of the court room.

 

Obviously this hasn't been by design on my part,

but I've been suddenly thrown into the position from me being switched from the defendant to the claimant.

 

Will the judge take that into account ?

[DonkeyB]

In which case, forget the WP. Send a letter, though, and I bet their response is on a WP basis! But that would be their problem...

[batty69]

I'm getting something drafted,

not entirely sure of my tactics here,

my options here I can see are,

 

a) make a part 36 offer

b) invite them to make an offer

c) advise them that I am willing to consider an out of court agreement.

 

Whats my best plan here ?

I don't want to screw up with costs here if I get this wrong,

but still show the court I was trying to act reasonable in settling the case.

 

Thanks

[DonkeyB]

As Andy has said, I think a Part 36 offer may struggle due to the likely track.

 

What it boils down to is – what will you accept?

[batty69]

Part 36 falls down as well,

as it needs to done on a WP basis.

 

To be honest I'd settles for than 10% of the claim,

my issue is if I name a figure I am worried I might prejudice myself during the proceedings.

[batty69]

have a done a bit of tooing and froing with the out of court settlement.

We failed to settle but hopefully I've doen enough to cover myself at the costs stage.

 

Which brings me to my next question,

despite searching high & low on this forum I cant find any info re. costs for small claims track?

 

At what point do I submit my costs and at what stage is it dealt with ?

[AndyOrch]

The usual rule in most cases is that the losing party will pay the other side’s costs of bringing the claim to court. The situation in small claims cases is modified and the costs that a losing party will pay have been deliberately restricted to limit the financial risk to the parties.

 

 

 

“No Costs” in the Small Claims Court

 

It is often said that there is a “no costs” rule in the small claims court. However, this does not mean that a victorious party cannot recover any costs incurred in a small claims case. Part 27 of the Civil Procedure Rules sets out the maximum costs which a judge can order a party to pay. Whether or not the judge will order a party to pay costs is ultimately a matter for him.

 

The costs awarded may depend on a number of factors including the relative financial status of the parties and their behaviour before and during court proceedings. If any costs awarded by the judge do not cover the expenses actually incurred, the party will have to pay them out of their own pocket.

 

Regards

 

Andy

[batty69]

Thanks Andy,

yeah the cost are very limited as to what you can get back.

 

At the last hearing I had,

I didnt submit my cost schedule and had a telling off from the judge when I asked for them.

Fortunately he took pity on me and awarded me back my court fees anyway.

 

As I should be entitled to at least my court fees back (presuming I win),

I need to know when I need to submit the costs and what the procedure is ?

[AndyOrch]

" As I should be entitled to at least my court fees back (presuming I win), I need to know when I need to submit the costs and what the procedure is ? "

 

There isnt one in SCT if you are victorious then its judgment and costs in the case (Court fees)

[batty69]

I Won!