Setting A Judgement Aside

[LIVERPOOL]

I secured a CCJ against a creditor who has applied to have it set aside. I have been given a date for a hearing which has been allocated 20 mins but no further info. Am i expected to provide evidence at this hearing or is it just for the defendant to try and persuade the judge to consider setting it aside and se another date for that hearing

 

[.Spiralling.]

I had a judgement set aside based on the fact that the court papers were sent to an old address, after the plaintiff had been corresponding with me at a new address (in fact the judgement was set aside and the case dismissed since it was utter nonense).

Have you been given any indication as to why they're applying for a set aside - are they claiming non-receipt of the court papers or something else? They will have to convince the judge that there's a good reason for a set aside. If you can take along proof that there's no reason so much the better for you. For instance (if they're claiming they didn't get papers) proof that papers were sent to last known address etc.

The case itself won't be heard at a set-aside, so you won't need to present your case, but any evidence that you have that can refute their reasons for setting aside would be good.

 

[Katy0793]

Speak to the court and ask to be sent a copy of the application for set aside so you can see why it has been applied for.

 

[Anthony Reeves]

Below is CPR Part 13 which sets out when a court can set aside a judgment if there has been no error in entering judgment.

Yes you should get a copy of the application from the court.
In essence, if the Defendant has made the application promptly and there is a real prospect of defending the case then the court is likely to set the judgment aside. However, if the Defendant has waited a long time to make the application and has no real chance of success, then the court will probably not exercise its discretion to set aside.

Surprisingly, if the Defendant is arguing that they have not received the Claim Form, then they have to argue that this is a good reason to set aside, ie it is asking the court to exercise its discretion. Remember, if the Claim was sent to the last known address, then it is validly served.

When you get the application, I would prepare the following points to make to the Judge:
When the Claim was issued and that it was issued to the last know address for the defendant.
If there is has been a delay in applying, make this clear especially if more than a month after judgment.
Comment on whether there is a real dispute, and point to any documents which support the fact that the defendant has no case.


Anthony Reeves
Pinniger Finch & Co, Solicitors
01373 823791

The court may set aside (GL) or vary a judgment entered under Part 12 if –
(a)the defendant has a real prospect of successfully defending the claim; or
(b)it appears to the court that there is some other good reason why –
(i)the judgment should be set aside or varied; or
(ii)the defendant should be allowed to defend the claim.
(2)In considering whether to set aside (GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.
(Rule 3.1(3) provides that the court may attach conditions when it makes an order)

 

[LIVERPOOL]

it has taken 4 months for this application and in my opinion the case is very flimsy. Furthermore the defence could easily have been offered at the time since the defendeant acknowledged the service but then did not bother to defend. What i dont want to do is antagonise the judge by pointing out such matters as presumably he is capable of seeing the facts himself

 

[The Resolver]

So he completed and filed the Acknowledgement of Service form (so cannot argue non receipt of the claim form) and failed to file a Defence in time enabling you , presumably, to enter judgment in default of the Defence. Four months is too long but do you mean he waited four months following the default judgment or four months since he was served with the Claim Form? (or maybe since he filed the Acknowldgement of Service form). If from judgment then he probably has no chance. But if from an earlier date then what is crucial is the time since he was served with the judgment. He may have some explanation (e.g. emergency hospitalisation/home burnt down etc) but, as Anthony says, the judge will want to be satisfied that his proposed defence also has some merit.

You will not upset the judge by setting out your grounds for objection no matter how obvious they may already be to him.