By consenting to set it aside, they're admitting the CCJ was entered incorrectly. But that aside, OP, once you do make this application if they then offer to set aside by consent (i.e. offering you want you're applying for anyway), and you don't consent and choose to proceed to the application hearing, they will try and get costs from you. And it's a simple argument to make - "Sir, the Claimant offered to set aside this judgment by consent, the Defendant unreasonably refused and as a result the Claimant has incurred (for argument's sake say £800) of additional costs for preparing and attending this application hearing which would not otherwise been incurred had the Defendant acted reasonably and consented. We therefore ask the Court to award the Claimant's costs of £800.00 payable by the Defendant in 21 days". Depends on the Judge you get on the day... And just bear in mind, admitting the CCJ was entered incorrectly isn't an admission that the Claim itself is incorrect, it is an admission of a procedural error/irregularity. A set aside simply sets the clock back as if you had been correctly served with the proceedings. The litigation will continue and you will still need to defend that claim properly.

Surely if the Council and the Solicitor set aside by consent and pay for it to be done, they are accepting defeat and that the CCJ was wrong? Once the OP's application is filed if the solicitors have any sense (although it's J&P so in my experience probably not) they will just offer to set aside by consent at that stage. And if the defendant doesn't consent, they will make submissions that he should pay their costs of attending the application hearing. Just a thought. That's what I'd do if I was them...

Is your LBA being sent to an individual/sole trader, or a company?

OP, just a thought further to what Bankfodder has said above. It may be first worth writing to the solicitors and the Council and give them a 7 day deadline (or shorter) to provide you with a consent order for the CCJ to be set aside by conset. The threat being that you will make the application as outlined by Bankfodder if they don't. I can tell you right now, knocking up a consent order to set aside a CCJ will take all of 15 minutes... e.g. 1. Default Judgment dated XXXXXXX is set aside 2. Defendant to file a Defence within 28 days of service of the sealed consent order. 3. No order as to costs. (or Defendant's costs of £XXXX to be paid within 21 days of service of the sealed consent order). Whilst I appreciate the CCJ needs to be removed asap, in my view it's better to at least try to get them to foot the bill for doing this (a case of them paying £100 to file a consent order, or you paying £255 to make an application - plus all the time and effort to actually putting the application together, to get the same end result).

I don't disagree that he's entitled to recover the actual value of the car. I just don't think he's being shortchanged. However he needs to come up with those examples of similar vehicles and/or the repair quotes so he can be sure of the position.

Also, with regards to Judgment I don't think the Court would process the Default Judgment if there's any defence on the file. No judge will actually look at the file until after directions questionnaires are filed and the case is transferred to a local court.

On the acknowledgment of service form (N9 Response Pack), there's a box which says Defendant's name if different to the name on the Claim Form. Is that filled out?

I completely missed that the OP only paid £2k for his car in the first place... If he gets any more for the car than he paid for it, despite the car having had a major issue and repair together with a year of depreciation, it's a good result.

That's not correct. Because that could potentially leave the OP out of pocket to the tune of £800 if the other driver doesn't have the cash. Which means that it wouldn't be a valid contract of insurance for the purposes of RTA88 s145. Agree with the evidence point though. If the OP gets the evidence together, the insurers will pay without court action, or at least up their offer to something reasonable.

Plus for the insurer to leave the driver to their own devices in defending the claim would almost certainly be a breach of the insurance contract. In addition the road traffic act confers an obligation on the insurer to pay the judgment (subject to notice of proceedings being given to the insurer under s152), so it is really not in their interest to leave the driver stranded in this regard. And also, it makes no sense to shift liability to someone who you don't know has the ability to pay. If you do try and cut the insurer out of the process what you may risk doing is refusing a payment of say £2,200 and securing a judgment of £3,000 against someone who can only pay you £50/month... But you're right the OP hasn't been back for a while lol... Like we've both said he needs to be clear as to what he thinks his claim is worth...

The driver will pass the claim to the insurer. The insurer will instruct solicitors from their panel. The driver will sign a CSA authorising the solicitors to seek instruction from the insurer, and the insurer to pay the solicitors fees (although most likely at this level they will be fixed or covered on a retainer). The only involvement the driver will have is when a witness statement needs to be filed, although even then, it is not likely they will file one of any great substance as liability is admitted. If it ever proceeded to Court the matter could quite easily be defended on the papers alone.

Bankfodder is right, your relationship is with the other driver (the tortfeasor). The problem with suing them is that their RTA insurer will pick up the claim, as that is precisely what they're indemnifying her for. That contract of insurance has to be in place by virtue of the Road Traffic Act 1988. And then you're back at square one, dealing with the insurer's solicitors again. Just playing devil's advocate here... With regards to the work on the car - this is a claim in tort (negligence) so the damage you're seeking must be forseeable - did the other driver know you've spent a colossal amount of money fixing up your car? Almost certainly not. Is the fact that you've spent a colossal amount of money fixing up your car and therefore want to recover all of that forseeable? That's arguable, but I'd say probably not. If you want a more extreme example of forseeability, say you were straight swapping your car for a new Mercedes A class the following day and that deal fell through because of the incident - would you expect the other driver to compensate you for a new Mercedes? No... no one is going to consider that forseeable. The question that you haven't answered yet is what do you think your car was worth, immediately before the incident? DragonFly1967 suggested you seek out a few examples of similar vehicles. This will give you an idea of the market value of your car (and what it would cost to replace). Loss of use of the vehicle is mentioned above. Yes that is a legitimate loss, but have you been suffering that loss while you've had a courtesy car? Again, arguably not. Travel to get your new car - you're not in a position to quantify until you find a replacement vehicle. You can sue her but you won't get around her insurers that way.

An interesting read that Judgment. Now that the Claimants have money, could the landlord could pursue them for the rent arrears?

Excellent result.

Ask your insurer (swinton are a broker I believe, so who is your actual insurance company?) for a copy of a document called an Audatex Report - you need the full report and not the abbreviated version. The full document will explain the condition of your car, the areas of damage, have copies of the photographs taken by your insurer's repairer together with the notes/correspondence passing back and forth regarding authorisation of the repairs. It appears that your insurers have only authorised repairs to one part of the car because the damage is not (in their view) consistent with one accident. The Audatex Report should shed more light.

A bit convoluted but perhaps a request to the local Council under s35 of the Data Protection Act explaining the situation and asking for the name and contact details of whoever is paying the business rates at the premises, and then a letter before action to them. Risky to jump straight into suing them... Or just be a bit sly - ring the shop next door, say you wanted to thank the phone repair guy for fantastic service but didn't know his name to put on the thank you card/flowers... Second option is less likely to get you the right information obviously...

The Court fee for a small claims appeal is £120.00.

Sounds like it was manual via the CCMCC, and I think it was the claim form and particulars that he tried to serve by email. Paragraph 4 of the Judgment - "In the ordinary course, the claim form would have been served on the defendant by the Court: CPR rule 6.4(1). But Mr Barton elected to serve it himself pursuant to the exception at (b). He had four months in which to do so, expiring on 25 June 2013: CPR rule 7.5."

This may be of interest to those reading this forum. The Supreme Court handed down Judgment last week in the case of Barton v Wright Hassall LLP. Barton was a Litigant in Person bringing a professional negligence claim against Wright Hassall, who themselves were represented by BLM. Barton had been in contact with BLM pre-issue by email. As limitation was approaching he issued, and then just at the end of the 4 month time limit, served his proceedings by email on BLM (having opted to do this himself rather than letting the Court serve). BLM a couple of weeks later, advised that they had not permitted him to serve by email, and that the proceedings were therefore not served. This meant he was out of time to re-serve the same proceedings. Unfortunately he was also then statute barred from issuing another claim. Barton argued that as BLM were corresponding with him by email, this was an indication that they would accept service by this method. BLM contented that the Civil Procedure Rules were clear, and that they had not given permission to serve by email. The Supreme Court ruled in Wright Hassall's favour. A bit of a warning that the CPR will not be applied differently to unrepresented parties, and furthermore, that a represented opponent has no obligation to raise such issues and notify the unrepresented party of any breaches - see paragraph 22 of the Judgment (available on the Supreme Court's website): "Even on the assumption that they realised that service was invalid in time to warn him to re-serve properly or begin a fresh claim within the limitation period, they were under no duty to give him advice of this kind. Nor could they properly have done so without taking their client’s instructions and advising them that the result might be to deprive them of a limitation defence. It is hardly conceivable that in those circumstances the client would have authorised it." There are a good bunch of people here to help on this forum, to avoid situations like that Mr Barton found himself in.

Fingers crossed!

Based on what you said above, this hearing is taking place on 8th March... Upon reading the letter the Court will do one of two things... ignore it.. or adjourn the hearing to another date. My suggestion... get your evidence together and get it to the Court and the other side. As soon as you can.

I was at Portsmouth County Court last month it was quite nice... hell of a trek from the Midlands though... If the Defendant doesn't go then the risk is as outlined. And it's a significant risk. They could well end up with a Judgment against them just by virtue of them not being there (i.e. no arguments being advanced on their behalf, not available for questioning/cross examination, a perceived disrespect to the Court). In my view them not going renders this entire thread of assistance somewhat pointless. They might as well have just admitted at the start and paid.

In the line before the numbered list, change Plaintiff to Claimant. If you don't go to Court you do run the risk that the Claimant does show up and gets their case heard, with no one to defend.

Agreed the HCEO probably couldn't do anything but it doesn't stop the Claimant from giving it a go. But the charge would be the ideal way as there's a property in his sole name.