DON'T WASTE THE APPLICATION

An N244 application to set aside is a one shot attempt at having a Judgment overturned. Unless the judge makes an error in law, you will not get a second chance.

The Judge has the DISCRETION to set the judgment aside if you didn't receive the Claim form and you have a good prospect of defending the claim. So challenge every element of the Claim made against you.

If it was purchased, don't just challenge the Assignment, dispute the debt was owed to the Original Creditor as well.

It is their job to PROVE every element of a claim.

If you rely on challenging the Assignment, on it's own, many judges will rule against you.

IF you lose the application they CAN and WILL add on costs,

so consider carefully if you want to make the application!

GET THE DETAILS OF THE CASE

Step one: contact the court

As soon you become aware of the CCJ, you should contact the court to obtain some information about the claim itself. Many claims are issued by Money Claims Online and so you will need to contact the Northampton County Court Business Centre and you will need to provide them with a Claim Number. If you have zero information about the claim, then you may need to carry out a search on the register of judgments managed by the Registry Trust. You can do this by going to https://www.trustonline.org.uk/search-yourself although there is a small fee (which you should look to recover if your application to set aside is successful).

The basic information you will need to obtain from the court is:

• the name of the claimant;

• the claim number;

• the claim form;

• the Particulars of Claim (if detailed particulars have been submitted separately); and

• the Order granting Default Judgment.

Why Not Ask the Claimant to Agree a Set Aside?

Step two: write to the claimant and seek their consent to set aside

Once you have sufficient information and received the relevant documents from the court, you should promptly write or email the claimant and ask them to consent to set aside the CCJ. As you are working to a very tight schedule, it might be prudent to explain that you require a response within 7 days. It is not uncommon for the claimant to not respond to you in time and in which case you simply press on with submitting your application to the court. Sometimes a claimant may refuse to consent although they should set out their reasons for their refusal. Failing to provide any explanation as to why the claimant objects to the setting aside of the CCJ may run the risk of the court making an adverse costs order against them. Other reasons why claimant might refuse consent is where it is clear on the face of it that there is no reasonable prospect of successfully defending the claim.

Step three: submit your application to the court

If you have not heard from the Claimant and the deadline to respond has passed, you should immediately look to submitting your application to the court, irrespective of the limited information you might have. I have seen on several occasions that defendants will sit and wait around expecting a response from the claimant before they begin drafting their application. I would caution against this. You should be looking to draft your application to the court as soon as you have written to the claimant and many people often underestimate how long it takes to prepare your application and supporting evidence. Remember, this is your chance to set aside the CCJ and have it removed from your record and so you need to ensure that your application is carefully prepared and not rushed.

Example Forms

For a normal SET ASIDE application, you can submit JUST an N244 without Draft Order or Witness Statement. Only file a Witness Statement and draft order if the case is more complex.

Answering the Questions

• Question 1: fill in your name here.

• Question 2: you will normally tick the box as the ‘defendant’.

• Question 3: you need to briefly state what order you are asking the court to make and the reasons for your request.

Example:

An Order that the judgment in Default be Set Aside pursuant to CPR 13.3 and the Defendant be allowed to file a defence in the case. The Defendant only discovered the judgment when...... and has acted promptly when making this application.

• Question 4: this asks if you have attached a draft of the order you are applying for. We would suggest that you only tick ‘yes’ to this if you have had help from a solicitor or advice agency with drafting the order. Otherwise, leave this up to the court.

• Question 5: this asks you if you want to have the application dealt with at a hearing. Most applications will be dealt with at a hearing.

• Question 6, 7 and 8: it is safer to leave these blank rather than guess how long a hearing will last or what level of judge you need at the hearing.

• Question 9: only fill this in if there is someone you want the court to send a copy of the application to, such as your solicitor.

• Question 10: this appears on the back of the form. You should tick the box saying you are relying on ‘the evidence set out in the box below’. You need to include any evidence you have to support your case, such as proof you have changed address or were out of the country. Any information you have about your possible defence should also be included. You should explain any delay in making the application.

• Sign the statement of truth on the bottom of the form.

• Send enough copies of the form by recorded delivery back to the court so that one can be sent to the 'claimant' (the person who has the judgment against you) and one for the court. Remember to keep a copy for yourself.

The court will take into account how quickly you made the application and may want to know the reason for any delay, e.g. you only just found out about the judgment.

N244 Witness Statement

IN THE COUNTY COURT AT [NAME OF YOUR LOCAL COUNTY COURT]

Claim Number: [THE CLAIM NUMBER]

Exhibits: [YOUR INITIALS AND THEN EXHIBIT NUMBERS]

Between:

[YOUR NAME]

Defendant

Vs

[THEIR COMPANY NAME]

Claimant

---------------------------------------------------------

WITNESS STATEMENT OF [YOUR NAME]

---------------------------------------------------------

I, [YOUR NAME] of [YOUR ADDRESS & POSTCODE] being the Defendant in this case will state as follows;

1. I make this Witness Statement in support of the application for an order that the judgment in this case (Claim No. [CLAIM NUMBER] jugment dated [DATE OF JUDGMENT]) to be set aside.

2. CPR 13.3 states:

(1) in any other case, the court may set aside 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 judgement should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

3. I learnt of the existence of this claim on the [DATE YOU FOUND OUT ABOUT JUDGMENT] when I received a letter from the Claimant requesting payment of the judgment forthwith [EXHIBIT A]

4. My address changed in [DATE OF MOVE] and a redirection service was in place from [START DATE OF REDIRECTION] to [DATE OF END OF REDIRECTION] / I informed the Claimant that I had moved house in writing/telephone on [DATE OF COMMUNICATION]. // I was admitted to hospital on [DATE IN] until [DATE OUT] and had no knowledge of the claim until [DATE] // I was out of the country on business // I was not aware that the Claimant had purchased a list of names and alleged balances owing from a different company (an alleged Equitable Assignment), no contract exists between the Claimant and the Defendant, so I was under no legal obligation to notify the Claimant of any change of address.

5. XXXXXXX further information about why you did not defend/acknowledge originally XXXXXXXX

6. On [DATE], I made a written/telephone request to the Claimants solicitors inviting them to consent to set aside the judgment due to the reasons in paragraph 4.

7. The Claimant did not respond to my request / turned down my request.

8. Article 6 of the European Convention on Human Rights states:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing withing a reasonable time by an independent and impartial tribunal established by law.

9. I therefore ask that the Court sets aside the judgment in this claim and allows 14 days for me to submit my defence.

Statement of Truth

I, [YOUR NAME], the Defendant, believe the facts stated within this Witness Statement to be true.

Signed: _______________________

Dated:_________________

Why did the defendant not receive the claim form?

There could be any number of reasons why the claim form was not received. Royal Mail have quite a record of losing mail:

Consumer rights program Watchog discovered that ROYAL MAIL TAKES 15 WORKING DAYS to deliver first class mail. So a claim form could easily be delivered outside of the 14 days allowed for a defendant to acknowledge the claim.

For example, the original court papers may have been sent to the wrong address – perhaps a previous address. If this was the last address known to the claimant, the judgement will be valid unless they had reason to believe you had moved.

Another common situation is that the papers were sent to a company’s registered address but not forwarded to the trading address. Many companies have a registered address for purely administrative reasons. If court papers are sent to this address, they are deemed to be valid. That’s why it’s so important that proper forwarding facilities are in place.

It may even be that the papers were sent to the right address but arrived at a time when the defendant was away, for example during a holiday or a long trip abroad.

Whatever the reason for the defendant not replying, the judgement will be valid and enforceable if it was sent to a current address, a registered address or even the last address known to the claimant.

If it is not set aside, it will have to be paid and will continue to have a negative effect on the credit rating.

Applying to have judgement set aside

The court rules give the court a discretion to set aside a judgement if there is a good reason. This can include a situation where the defendant didn’t receive the papers.

DO NOT PUT THAT YOU IGNORED THE SUMMONS!!! - YOU WILL BE WASTING AN APPLICATION!

The first step will be to make an application to have the judgement set aside. This is done on court form N244. The application should be made promptly and should ideally be supported by a witness statement.

The court will need some explanation as to why the court papers were not received. They will also want some idea of whether or not you are likely to have a good defence to the claim. All this should be included in the witness statement.

YOU HAVE MORE CHANCE, TO HAVE THE JUDGMENT SET ASIDE IF YOU HAVE SOME PROOF - i.e. Tenancy Agreements, Council Tax bills, Utility bills, any official documents etc

Showing that you could not have received the paperwork. It will be a lot harder to argue with your word against theirs.

The defendant should also explain how the default judgement has affected them. For example, the C.C.J. may mean they are unable to obtain a mortgage or it might have affected their job prospects.

Send a copy of YOUR STATEMENT and EVIDENCE to the CLAIMANT as well as the court.

What if the claimant consents to the judgement being set aside?

If the claimant consents to the judgement beings set aside, both parties can sign a court document known as a consent order.

Whether or not the judgement is set aside is still at the discretion of the court but a consent order makes it far more likely.

The consent order can be filed before or after the application to set aside judgement has been made.

How do I make the Application?

So you've got a County Court Judgement and you need to have it set aside so you can dispute the case. If the judgement was applied for online and you have the paperwork, you can make the application online by registering with the

Money Claims online service

The other way to do this is through your local County Court by filing an N244

You can also get help with the cost of the application by filing an EX160

The current fees for applying to have a judgement set aside is £100 if you can prove you didn't get the claim form "without Notice"

In all other cases the fee for an application is £255.

The court may agree to set aside a default judgment even if you did not send in a reply form within the time limit if:

the court thinks you have a real chance of a successful defence to the claim; or

the court thinks there is some other good reason why the judgment should be set aside.

There is no time limit for making an application on these grounds but the court will look at whether you made the application ‘promptly’.

Sample Text for application N244

Example is for a debt that has been purchased - remove Deed of Assignment if debt has not been sold on

"I wish to have the judgement set aside because I have not been afforded my rights under Article 6 of the European Convention on Human Rights. I would like the court to give me my opportunity to defend the case in full.

The summons was not received because - ( it was sent to an old address where I have not lived since / / )

- (of a delay in postage and when I filed my defence, within the 14 days, I was told it had not been received. )

I dispute the claimants case in full as there is no contract between myself and the claimant and no debt is owed.

The Claimant appears to have purchased a debt that was disputed. I did not owe the original creditor any money and that is the reason the Original Creditor did not bring this to court themselves.

The Claimant is relying on an Equitable Assignment and does not have the right to bring the case before the court without the Assignor as party to the proceedings. The Claimant has failed to provide any Contract that is relied on this case or any Deed of Assignment for the transfer of ownership of the debt. I would ask that the court order the service of these documents before the next court hearing."

WHO DO I SEND MY STATEMENT AND EVIDENCE TO?

Make a statement of how you came to find out about the C.C.J. and how you acted PROMPTLY the minute you found out about the judgment. Send the statement and supporting evidence to the COURT and the CLAIMANT.

THE CLAIMANT FILES A STATEMENT OBJECTING

The Claimant will receive notice that you are applying to have the judgment set aside. They may decide to instruct a solicitor to file a statement objecting to your application. Be prepared to respond to the statement and provide your own statement of the case. Here is an example statement from a claimant objecting to the Judgment being set aside:

Take the Court very seriously

When you have filed the application, you will get a court date and you will have to attend court and explain your case to a County Court judge. It is up to the judge to decide whether or not to set the case aside, so if he suspects you simply ignored the summons and did not take the court seriously he may not set the judgement aside.

So take ALL evidence you can that backs your case up.

If you have moved house, receipts, Council Tax bills, utility bills can all be used as good evidence to show if a summons was sent to an old address. The claimant should have checked you had not moved before wasting the courts time. So this form of application is usually successful.

When you address a judge in County Court address him as "Your Honour".

You are expecting him to behave honourably in the case as and without prejudice.

You will have more success in the County Court if you adopt an honourable position. Any disregard of the courts authority or anything viewed as wasting court time can easily put you in disfavour in the court, so avoid being shown to "ignore" court orders or procedures. Acting promptly is viewed favourably, so get your application in swiftly.

Example court order in response to application to Set Aside:

EXAMPLE SUCCESS STORIES

Sometimes the application to Set Aside will get the claimant to revise the merits of their case and in some cases discontinue court action:

Application to Set Aside made because Claim Form was lost in post, success:

Default Judgement Notes

Re: CCJ by default? Set Aside application notes

This is the information sent out by MoneyClaim Online (MCOL) regarding set-aside applications.

Guidance notes for submitting an N244 Application to set Judgment aside

If you have a ‘joint judgment’, you can complete one set of forms provided that you reside at the same address. Include both of your names on the application form and ensure that you both sign the form.

Complete form N244 as follows:

• Quote your Claim number in the relevant box on the top right of the N244.

• In questions 1 and 2 clarify who you are and how you are related to the

• claim e.g. Defendant, Solicitor etc…

• In question 3 write that the order you are seeking is to ‘Set Judgment Aside’ and

• provide a reason for disputing the Judgment that has been recorded.

• It is not necessary to complete questions 4 – 9

• In question 10 clarify what evidence you wish to rely on in support of your

• application, if necessary providing any further details in the box provided.

• Sign the statement of truth in section 10.

• The applicant must sign the application in section 11; third party signatures

• are not accepted.

If you do not comply with the above the application will be returned to you.

What happens next?

Once you have paid the fee, or the fee has been remitted, as you are an individual your case will be transferred to your local County Court. A hearing will then be listed for your application to be heard.

The guidelines contained within this letter are not legal advice. Court staff are not legally trained or responsible for the outcome of your case.

Guidance notes for EX160 fee remission applications

You may be eligible for a fee remission if you receive one of the benefits listed below or if you have a low income. To apply for remission you will need to send a completed EX160 form and supporting evidence with your N244 application. The EX160 form and instructions on completing it are available as part of booklet EX160A, which can be downloaded from the Court FormFinder at http://www.justice.gov.uk/global/forms/hmcts/index.htm.

If you do not have internet access, please contact us and we will post you a booklet. Please read the booklet carefully before completing the form. Ensure you enclose all necessary evidence in support of your application for fee remission. All evidence must be original, photocopies cannot be accepted. If you require the evidence to be returned to you, please enclose a covering letter requesting this. Incomplete / incorrectly completed forms or forms with incorrect or missing evidence cannot be processed and will be returned to you.

If you are in receipt of benefits

You will need to provide evidence from the benefit provider that you are currently receiving benefits. Any of the benefits below automatically entitles you to a full remission:

• Income Support

• Income-Based Job Seeker’s Allowance

• Income-related Employment and Support Allowance

Your award letter(s) for any of the above three benefits must be dated within the last

calendar month.

• State Pension Guarantee Credit

• Working Tax Credit with no element of Child Tax Credit

Your evidence letter(s) for either of the above two benefits must be dated within the last year and refer to the current financial year (April – March).

You must ensure that you enclose all the pages of your benefit award letter showing your full name and address. The award letter must be original or your application will be refused.

If you are not in receipt of any of the listed benefits but still cannot afford the fee You may still be able to apply for help with the fee on the basis of low income. Please see pages 7 to 14 of the EX160A booklet for more information. If you are living with a partner, please ensure that you state both of your income and expenditure details when completing the EX160.