Campervan deposit Court Claim - got default Judgement under wrong name! **CLAIM DISCONTINUED**

[moneydragon]

I recently obtained county court judgment against an individual who is a director of the company that has refused to refund a deposit. He has now requested that the court set aside the judgement as being an employee it was issued falsely.

 

On the judgement forms I stated his name and the t/a company.

 

Can someone please advise were I stand on this.

 

TIA

Edited October 29, 2022 by moneydragon
typing error

[Ethel Street]

Was the company a 'Ltd' company registered at Companies House?

 

Did you make your claim against both the individual director and the Ltd company?

 

How much money is involved here?

[moneydragon]

Thank you for getting back to me.

 

I made the claim to the individual but when I went for judgement I made it to the individual t/a

Edited October 29, 2022 by dx100uk
unnecessary previous post quote removed

[FTMDave]

But who did you pay the deposit to?

 

A limited company?

 

An individual?

 

An individual T/A?

 

It would make it easier if you just named the names.

 

 

[moneydragon]

Hi

Sorry for the late delay in getting back.

 

On my bank statement the name of the payment is none of the below

 

They are a limited company

t/a another name

the individual is a director of the limited company.

 

On the judgement it stated individual name t/a name

 

I appreciate that it would make it easier if I named the company but at this stage I dont think I should

 

The company is a limited company t/a another name.

 

The claim was made against the individual but judgement was against the t/a company quoting the individual name.

The amount in total is £250

[Manxman in exile]

I don't know, but shouldn't you have sued who you paid the deposit to?  In other words, the defendant should have been the limited company t/a whatever.  eg Acme Limited t/a Acme Properties.

 

The point of a limited company is that you can't (usually) sue the individuals behind it.  The company is an entirely separate legal "person" from the people who run it or own it.

[FTMDave]

1 hour ago, moneydragon said:

I appreciate that it would makeit easier if I named the company but at this stage I dont think I should

Your decision but if you don't give us all the details the advice may turn out to be wrong.

 

Mie is spot on.  You seem to have sued the wrong entity.

 

However, that isn't the end of the story.  To successfully get a set aside, your opponent will have to

   - 1.  explain to the judge why he didn't defend when he had the chance, and

   - 2.  show he has some sort of defence to the claim.

 

(2) is easy - you sued the wrong person.  (1) is not so easy, if he simply didn't bother to read the court papers the judge won't be too impressed.

 

Can you please upload his set aside application?

[moneydragon]

I have received the attached today, do I need to act or wait for his defence?

 

TIA

set a side a.pdf

[unclebulgaria67]

So. if you have judgement against the company, then whilst you wait for them to issue their defence, you really need to think about the claim you made.  Why do you think you are entitled to your deposit back? What was your legal basis for this ?

[FTMDave]

No, you wait for the defence.

 

After that, if you have sued the wrong person, your case will go very badly.

 

But wait for the defence first.

 

Given you hide information from us it's very difficult to give advice, we don't know why/if you sued the wrong person in the first place, why you didn't' enforce judgement once you had it, what reason the other party gave to the court for not defending the claim, why you didn't oppose the set aside application (presuming you didn't, we don't know), etc., etc.

[moneydragon]

Thank you , I'm not hiding info I just feel uncomfortable with putting personal info out. 

 

I raised the claim against the individual I dealt with as he was a one man band.

There was no response, I then got judgement against the individual quoting the trading as company name. 

 

He then stated I made the claim against him individually when it should of been the Ltd company as he is only works there but in fact he is the director of the Ltd company .

 

I didn't oppose the set a side as when we received his paperwork there was no instructions that we needed to follow.

 

I have never done anything like this and I'm finding it totally confusing as there is a Ltd company  which has a t/a company and then the individual who is linked but claims he only works there.

Edited November 18, 2022 by dx100uk
unnecessary previous post quote removed

[FTMDave]

OK, understood.

 

A similar thing happened to a close friend of mine who did some work for someone he thought was a "one man band".  The charlatan had no intention of paying my mate and got away with it by "claiming he only worked there".

 

3 hours ago, moneydragon said:

Thank you , I'm not hiding info I just feel uncomfortable with putting personal info out.

But why?

 

No-one is asking you to identify yourself, in fact CAG insists on total anonymity of its users.

 

But if you would upload whatever paperwork you signed regarding the deposit, and the set aside application, with your details of course redacted, we'll be able to get to the bottom of this.  If not we won't have a clue whether you should bail out now to avoid being hammered for costs later, or continue with the claim.  

[moneydragon]

I have not signed any paperwork regarding the deposit, so nothing to upload I have already uploaded the set a side notice.

I thought I had uploaded the judgement but upon checking it isn't there so will try again later

Edited November 18, 2022 by dx100uk
unnecessary previous post quote removed

[dx100uk]

just type no need to keep hitting quote!

 

makes a thread twice as long and diff to navigate on phones too..

[FTMDave]

What we need to see is -

 

1.  Any paperwork regarding the deposit, obviously redacted of your details.  If you didn't sign anything, any text messages or e-mails for example.  This is to see who exactly you were making the agreement with.

 

2.  The set aside application, again of course with your details redacted.  To see what the other party is arguing.

 

You have already uploaded the set aside order/judgement, no need to do so again.

[moneydragon]

Hi FTMDave

I made the payment of the deposit direct to the individual  and did not receive the attached to some 3 hours later.

As he signed the email personally that was my reasoning to name him on the claim.

TIA

 

Email redacted.pdf

Judgement a-1.pdf

Edited November 19, 2022 by FTMDave
Personal details showing

[FTMDave]

Thanks for this.

I'll have a good read through and get back to you.

You left your name showing on the "Judgement" file, but I've edited it.

Given your whole reason for coming here was to clarify if you were suing the right person or not, the fact that you've spent a great deal of time redacting the very information that could indeed clarify matters is totally counter-productive. 

I've asked you before why you simply won't name names. 

If there is a real reason, fair enough. 

But I think you've got it into your head that in some vague imprecise way something "bad" will happen if you do so, when it simply won't.

Anyway, to try to be constructive.

The first paragraph of the T&Cs goes like this -

XXXXXXXX is a trading name of XXXXXXX Ltd and is also referred to as “XXXXXX” “Us” “Our” and
“Operator” throughout. Hirer is also referred to “Customer” “Client” and “You” throughout.

I'm presuming the first blank is the T/A name and the second blank is the name of a limited company, right?

If so you have sued the wrong person and you'd be better off discontinuing the claim and starting a new claim against the limited company.

That is unless the person you sued lied or hid the fact that your contract would be with a limited company.  What do you mean by?  -

On 19/11/2022 at 20:08, moneydragon said:

I made the payment of the deposit direct to the individual  and did not receive the attached to some 3 hours later.

What is "the attached"?

And how did you pay?

We also asked you to upload the set aside application. 

We need to see what argument your adversary used to try to get the court to agree to a set aside.

You can be sure that their defence will be a photocopy of this.

[dx100uk]

sadly it took much hard work here for almost 10yrs to stop this really really silly idea of not naming 'the opposition' in court claim threads and hiding details of debts on DCA court claims or simple debt threads. the major work must goto @andyorch on this.

there is zero logic in hiding things.

so what if they find you here

so what if they mention this in court

so what if they read early what you are being advised to do.

if they are 'guilty' none of that makes any odds to the judge.

THEY ARE GUILTY regardless and always remain so.

dx

[moneydragon]

FTMDave

I have now uploaded the set a side application which if I understand correctly is what you needed in the first place not the notice which I uploaded previously.

In reply to "what is the attached"- it is the email that I received 3 hours after payment was made which included the receipt and the t&c's.

I'm presuming the first blank is the T/A name and the second blank is the name of a limited company, right?  - Right

request for set a side redact.pdf

Edited November 20, 2022 by moneydragon
add additional info

[FTMDave]

Thanks for getting back to us so quickly.

 

Two questions.

 

1.  What about the set aside costs?  The application will have cost him £275.  He didn't persuade the court to make you pay costs, did he?

 

2.  How did you pay the deposit?

[moneydragon]

Hi FTMDave

 

Thank you for your reply and in answer to your questions:

1. I have seen no mention of his costs at this stage in any of the court documents received.

2. He took the deposit payment via my debit card whilst on his premises

[FTMDave]

OK, we're getting somewhere now.

I was bemused as to why he was paying £275 to get rid of a judgement for only £235!  However, the £275 is to have an application heard with a hearing.  Without a hearing it is £108 (IIRC) and the judge does say "Upon reading the Defendant's application to set aside" so he may well have gone down that route, it's unclear as he didn't fill in the form properly.

It's easy to see how he got set aside, he (a) gave a reason for not defending initially and (b) outlined a reasonable defence and (c) applied promptly.

You say you've never done this before, so for future reference, you got judgement against him on 28 September, you could have enforced from around 28 October but he got in before you with the set aside application, nothing more you could have done there.  You could however have opposed his set aside application with a Witness Statement to the court.  You're unlucky, it can takes months for set asides to be heard, his was heard very quickly.

Anyway, you now have two choices.

1.  Discontinue the case, take the £35 claim form fee hit, and start again by suing the limited company.

2.  Continue the claim, but watch out, you will need to show the judge he was dishonest and hid the fact he was representing a company until after payment was made.  Can you do this?  If you can't you'd be likely to lose in court and as well as normal small claims capped costs he could request costs for unreasonable behaviour for continuing to sue the wrong person once the mistake had become evident.

Your call.

To go off on a tangent - have you tried to get your bank to do chargeback?

Well done on paying by debit card BTW, we get a lot of people who pay by bank transfer which leaves them with no protection.

[moneydragon]

Thank you for your advice which I think I will go with and discontinue the claim.

 

Firstly, how do I go about and discontinue the claim.

dont think I can go for chargeback through my bankas the original payment was over 120 days. so I will reissue the claim this time to the Ltd company.

Edited November 20, 2022 by moneydragon
typo

[FTMDave]

How did you issue your claim?  Was it through the MCOL website?

[moneydragon]

Yes issued through MCOL though I now see it has been transferred to Wrexham