Litigation headz

Some advice please.

A relative of mine has come to me with a notice of [recovery] from some debt collectors. He appears to have had a default judgment entered against him and the debt looks to have been sold on. What should he do?

Details are that he was caught without a train ticket, gave his name etc but heard nothing more (but moved house shortly thereafter). It seems various correspondence including settlement offers and summons were sent to his old address, and he never received them. Now, the debt collector has found his new address and is after him for the judgment (c£100) and associated fees (c£500).

He’s not worked since March and can’t afford to pay the lot.

I would ordinarily say he should write to the court and ask for the judgment to be set aside, but I don’t know how that works in terms of the sum now being due to a third party. 

Alternative could be that he writes to the debt collectors, tells them he’s going to do the above, but offers to settle and tries to reduce liabilities that way.

What does rof think?

Supplemental question, give the debt is sold on, how does he ensure the judgment gets taken off his file when it’s paid?

Reminds me of miserable debt collection work as a litigation trainee.

I'm not sure it that's easy to get the judgement set aside because you moved as the person you owed the debt to was writing to what was your last known address.  One option is to simply write to the debt recovery people and explain he's out of work, etc. and they should send him an income and expenses summary to complete and can then agree an instalment plan based on that which at least means they won't come and seize goods.

Shows the importance of setting up a post redirection and not relying on the next occupant of the property to do something other than chuck all your post in the bin.

Not what sails said. Set asides are easy if the defendant had moved and can therefore establish reasonable grounds to say they never got the paperwork.

Not much point if there's no defence to the claim

I would go to CAB or a local free legal advice forum or similar before taking Sail's 'suck it up' advice. That CCJ is going to burn him for along time to come so worth seeing if you can get it lifted if poss

Look at the timing between the incident, claim and move. For starters. 
Could well be set aside and tbh a reasonable settlement offer to them esp if accompanied by an open I can’t pay it all but here’s £1 a week till forever letter should be end of it. 

I agree with Rex. It’s unlikely they’ll relitigate once set aside

PP it’d be a defence if he offered to pay but took train co 7 months to write to him

Who does he actually write to though? The court, the original claimant or the debt collectors?

The bit I’m struggling I’m unsure of is what standing the debt collectors have to do anything about the CCJ when the judgment is owed to the original claimant.

It’s assignable. Treat them like the original judgment creditor. 

I was purely thinking of ways to at least get them off your back while you try and get things set aside.  What you don't want is the bailiffs at the door having transferred things to the High Court while you're trying to tell them you've made an application for the judgement to be set aside.

He’s rang them and they’ve agreed not to come after him yet, so he’s now working on next steps. Which was to call me and ask me what he should do.

Would be interesting to know the legal basis for the associated fees claim ie. are those legal costs or a fee they’ve imposed and, if the latter, on what basis bearing in mind he was not contracted to them in any way.  Or even the train company for that matter, as he didn’t have a ticket.

Speaking as someone who currently does this kind of work...(sordid I know) your friend should try and reach an agreement with the debt collectors. Before they move to enforcement (which will mean more charges added to the debt and a visit to his house). He should agree to pay a pound a week - they will most likely take it - and record this in writing. 

Your friend could try and get the order set aside on grounds on invalid service but if it was his last known address then it might be hard to. Though even if he did the claim would be re-issued, re-served and then he would have to pay up (especially as he has no defence) in due course.

Very hard to question or challenge the associated fees. CPR 46 fixed costs regime allows for some level of costs to be added to the principal debt anyway.

He should have purchased a ticket! What comes to him now is just desserts. It's theft by another name.

I am obviously not a litigator *spits*

What I think he needs to do is complete this form appending a witness statement (and probably include proof of the change of address like a bank statement):

https://www.gov.uk/government/publications/form-n244-application-notice

Read the guidance notes. Will have to file this form if he can't afford the court fee:

https://www.gov.uk/government/publications/apply-for-help-with-court-an…

I'm sure there are drafts online re the witness statement but the basics:

https://www.justice.gov.uk/courts/procedure-rules/civil/standard-direct…

It should be thorough. Don't admit guilt. And give it a review on his behalf because let's be honest, he's probably not the sharpest tool. Then he needs to file it at the court and ask for copies and proof of receipt if possible because everything involved in litigation is a bit of a joke and people lose things.

Again, I'm not a litigator. *erugh*

Also £600. Mate. The state of this high street forum. I know you've got kids, but £600. I have wine which is more than that and I don't even like wine.

Court hearing will probably take 1-2 months at least from filing, imagine there's a backlog and it could be longer. Probably will get an email from a clerk, and it'll be a Zoom hearing. You can represent the kid if you think you can do a better job, pretty sure you can anyway.

 

Not much point in (or prospects of) setting aside the judgment, if there is no defence to the claim. 

So, if money is an issue: pay off the judgment debt, and dispute the costs.

If money is no issue just pay it all off. Will save some headache and some nerves. 

Btw, is he a regulated professional? Good luck completing the insurance renewals forms, or their equivalent, every year. "Have you got judgments entered against you" is usually a question on those forms. 

The longer the Judgment Debtor does nothing, the longer the Judgment Debt stays on his record which will cause him issues when they come to apply for a mortgage/credit card/bank account/personal loan/etc.

If he had a real prospect of successfully defending the initial claim, then he can make an Application to have the Judgment set aside - on Form N244, and particularise his reasons in a Witness Statement.  We've not been given much information about the £100 initial debt but it sounds like he was travelling without a valid ticket, so chances of defending the claim appear to be very slim.

For the sake of a damaged credit rating, surely he should just pay the £600 in one go, paying in installments might mean it stays on his credit profile.

He doesn't have £600 quid to pay it in one go Clapham 

if he's out of work and has been since March his credit rating is probably fucked anyway, but if he's so poor that he'd get a fee remission it's worth it.  If he wouldn't qualify for a fee remission, that application fee is £255 which is nearly half the debt.  Only he can decide if it's worth chancing that money (which he almost certainly won't recover)  to  try to roll the situation back to a simple unpaid ticket and then just pay that.  

setting the judgment aside doesn't really help him if he just ends up with a judgment against him in due course, which he also can't pay  

how long ago did all this happen anyway? How long has the CCJ been on his file?

 

 

 

On the other hand if he can find a way to pay it, even if not in full, in agreement with the debt collectors, then a certificate of satisfaction to remove the CCJ is 14 quid 

No. Breach of CPR 6.9 could be enough to set the claim aside I.e. the claimant should have had any suspicion at all they were posting to the wrong address. You don't need a reasonable prospect of success if there's a good reason why you didn't receive it.

https://www.civillitigationbrief.com/2018/07/28/service-of-the-claim-fo… 

The case law on this tends to go on a bit (I skimmed it), but typically if a judge finds that there was good service, they then do go onto consider reasonable prospect, but you don't need that to succeed to setting it aside. I also don't see why he has to lose by filing it promptly especially if he's getting the court fees washed on aid.

Paying the judgment within one month of issuance (not the associated fees, I don't think) and then applying for a cert of satisfaction will get him off the register of judgments after 6 years.

I do see the point about throwing good money after bad. Just depends on how badly he doesn't want a judgment against him. Assuming he could settle it out of court if the default is set aside.

I’d ask for a copy of the original claim form, the contract relied on for the fees and a breakdown of the fees as a first step. If it’s inadequately pleaded or he has a defence then given the house move, it might be worth applying for set aside. If it correctly alleges the fare dodge then I query whether the set aside application is worth it. I think the house move on its own could be ‘some other good reason’ for the purpose of cpr 13.3 but the judge is going to ask him at the hearing if he dodged the fare or not and so he’ll have to admit it.  Even if he dodged the initial fare it would be worth working out that there is an entitlement to the fees, if not you could try to get the judgment varied on that basis.

Tbh I suspect that those suggesting engagement with the debt collectors and agreement of a payment plan have got it right.    He should engage with them even if he is considering a set aside - he should offer a payment plan expressly without prejudice to any to set aside.

Biggie for all your chat about top firms and not getting out of bed for less than several hundred grand a year, you seem absolutely suited to a paralegal role at a regional insurance firm

 . . . . . just saw that Linda, if he hasn't got £600, then maybe borrow the money off someone or maybel £150 x 4 payments.  Beg, borrow and steal to clear it.

Biggie - if he succeeds in showing there was not good service, then he may fall down on reasonable prospects of success.  Seems like the debtor was caught by a ticket inspector, gave his details.  A last gasp effort to set it aside using fee remission will mean no payments to HMCTS, but the Debt Collectors may add a further £200-£300 for the privelege.  No fee remission for enforcement costs unfortunately.

 

Na, I think it's as dead celeb says - CPR 13.3 b) - it's either reasonable prospect OR some other good reason, and breach of CPR 6.9 would probably cut it.

I think you negotiate with debtor khunts, agree a payment plan, pay the £100 immediately just to get it sorted, then file that N244 form, try  to get a cut on the fees because of circumstance, get the judgment set aside. Then I don't know how it works, but I'd negotiate a settlement with the debtor khunts as per their settlement promises before they file again.

Just because having a judgment against you isn't pretty.

I dont think it sounds like there hasn’t been good service.  The train co didn’t know he had moved and service at last known address is good service under part 6. The fact that through no fault of his own he didn’t in fact love at the address at which he was served at the time he was served is probably enough to get through cpr 13.3(1)(b).  However although he doesn’t have to show he has a good prospect of success to get through this gateway, the judge has a discretion to set aside (‘may’).  The judge isn’t going to exercise the discretion to set aside if there is no possible defence.  If the guy shows up in person the judge will quiz him on what happened to ascertain if there is a defence. He will have to admit that he doesn’t have one, which will anyway be clear if he doesn’t set one out in his witness statement.  His application will be dismissed and he will have a further costs award made against him.  Therefore imo he should not apply to set aside unless he has some kind of defence to the claim as pleaded. He doesn’t know if he does yet as I think he has not seen the pleadings.

When Biggie makes paralegal SUPERVISOR role at Claims4Cunts or wherever he works he will then learn that Denton applies too. 

And then we will get another set of study notes. 
 

#cant wait

The Judgment Debtor is the one with a Judgment Debt against his name - that is Zero gravitas' mate.

 

He gave his address to the train inspector but maybe should've told them he would be moving shortly after.  There's some culpability there.

Heh at inadequately pleaded.

Apply for set aside and security for costs, ask for further and better particulars, they won't like it up 'em.

Good advice Spurius.

Also make sure that you constantly reserve your rights, even if you don’t know what those rights are or why they can or should be reserved.

Suggest a Norwich Pharmacal re the directors who sold the debt. Anton Pillar the fuck out of them and Mareva their mistresses to show them your serious  

Or something. 

Have you tried Martin Lewis? He might represent you 

Thinking about it actually I think no one has taken into account public body policy on first time offenders, pretty sure they have to follow a certain procedure and give you 21 days to respond and have certain prosecution policies on paying a penalty fare. So regardless of guilt, judgment could be set aside...assuming public transport. People claim genuine mistake, paid for ticket and lost it and get off with just a fine if one first occasion. And they’re jumping straight to prosecution because they’ve got wrong address.

Also of relative admitted it, evidence not admissible if PACE not followed.

Anton Pillar, Marjeva , further and better particulars , how long ago did you last practice?

biggie what on earth are you on about! Have you ever litigated a case at all?

Not a lawyer.

Don't know.

I hope you find the above advice helpful.  If you like, we could set up a zoom meeting to discuss.

Love and kisses.

Sven

the regulated prof issue is interesting- if (Linda) you pay $14 to remove CCJ does that mean you don’t then have to declare on PI renewal? don’t remember having to make such a declaration on our PI I have to say.....

Is it really an issue for reg profs - sols in particular- to have CCJs against them?

my daughter had a few CCJs and the collection companies were very willing to negotiate, especially if its an up-front payment now rather than drip feed.  The debts were also assigned in those cases and there was no problem getting things noted as paid on the CCJ register.    

If you are within the month as others have said its well worth getting it paid and off the register (we were too late for that) because presumably your guy won't be destitute forever and its a huge pain - you'll never get anything like a lease or a phone contract without a guarantor.  Failing that at least get it off your credit record asap - that way your guy can give the explanation for it and it will look credible.  

Surely just activate ghost protocol, collect the false ID documents from the lock-up and disappear to Panama post facial reconstruction surgery? 

'Details are that he was caught without a train ticket, gave his name etc but heard nothing more (but moved house shortly thereafter).'

Who moves and doesnt forward thioer mail to thier new address and doesnt go back to check they have nothing still being delivered there,  also  If you know you are moving wouldn't you [put your new address down

 

Sounds like your relative was trying to be a smart arse and knowing thery were moving gave what wouild be thier old address and then would not have to pay

Forwarding is for 3,6 or 12 months. It’s entirely possible he had forwarding and this took longer than 3 months. 

Some of the advice here is dreadful. 

Apply to court to get the judgment set aside (shouldn't be any issue getting it) and send a copy to the debt collection company offering immediate payment of the £100 if at all possible in the individual's circs. 

Assuming outside the grace period, even if they just pay or arrange a payment plan that CCJ is on their credit file for 6 years and will make getting credit incredibly difficult (plus hassle if they're in a regulated industry as someone said above). 

 

Murphus, given that you've just agreed 100% with my position (no backsies), i.e. the only maverick here saying there shouldn't be a problem getting the judgment set aside, my longhand opinion that litigators are largely a waste of space angry letter writers is completely justified.

I would say if the judgment has turned into a CCJ (and if they are contacting him re the debt it undoubtedly has) then get the thing set aside.

I had this issue a number of years ago.  I was advised (as it was only a few days after the 28 days) to just pay it.  I did, and it sits as a satisfied debt.

 

ANY time I go to get credit it pops up.  It popped up when I remortgaged.  I had to disclose it to the regulator.  I had to disclose it to Judicial Appointments.  Do not just pay it and think all is fine.  If there's reason to have it set aside, set the bloody thing aside.

ps. mine was a similar issue - old debt that I did not realise existed was being chased at my old address.  I didnt live there and the redirection had ended.  The debt collection idiots (Shoosmiths Northampton) played complete "computer says no" and of course they dont ever bother checking address against.. you know.. electoral register or similar.. since that would interrupt their finely-tuned sausage machine churning out fees for crap letters.

My £70 debt turned into £1300.