unknown LInk CCJ re Barclaycard debt - now after charging order

[dx100uk]

I would doubt that would be sufficient for a set aside hearing.

 

lets get the info from the court first eh...

[AndyOrch]

" Your friend should therefore request that the default judgment be revoked under CPR 3.1(7), rather than set aside. "

 

Afraid not Haunter .....Applications under CPR 3.1(7) should be used to challenge Procedural Orders during the process not to set a side a final judgment.

 

3.1(7) A power of the court under these Rules to make an order includes a power to vary or revoke the order.....

 

Applications to reconsider procedural orders may not be treated the same as application to set a side a judgment.

 

It may be useful during any Appeal process

 

Andy

[Haunter]

Thanks. Yes, I know what you’re saying, but in this case posted here there has not been a procedural error by the court.

 

In this case, the court was not aware that the creditor was not entitled to enforce the agreement, had the court known that the creditor had not complied with the cca request, it would not have awarded him any judgment, because s.77(4)(a) of the CCA 1974 prohibits the creditor from enforcing the agreement while he is in default of his obligation to comply with a cca request made under s.77 of the 1974 Act.

 

So, in reality, the court was deceived and mislead by the creditor in respect of his entitlement to enforce, this means that the process by which the creditor obtained judgment involved an abuse of process, this is material non-disclosure by the creditor.

 

If these material facts had not been suppressed and concealed from the court, the court would not have awarded the judgment to the creditor because it contravenes the prescribed law, the statutory provisions of s.77 of the 1974 Act, and for these reasons the same court has the power to revoke the order under CPR r.3.1(7).

 

The op’s friend should, in my opinion based on fact and law, set out these facts in the N244 application and ask for the order to be revoked.

 

Once the same court learns that the creditor was not entitled to enforce the agreement, it must revoke the order rather than just set it aside.

 

There are a number of authorities on the point (CA and UKSC and HL) which confirm that a judge exercising parallel jurisdiction has the power to revoke an order under r.3.1(7) made by a same-level judge on grounds of material non-disclosure, for example.

 

In this case here, we have material non-disclosure by the creditor, which is an abuse of process and interference with the administration of justice, and the statutory provisions of s.77 CCA 1974 preventing him from enforcing the agreement which justify the court revoking the order made against the op’s friend.

 

For clarity, I am not ‘telling’ the op and the friend what to do, and I am not expecting the op and the friend to do anything, I am simply citing the law based on the facts of the case that the op has posted here, and what options are available in law based on those facts.

 

If the facts posted here applied to my own personal case, then my application (N244) would be asking the court to revoke the order under r.3.1(7), or, in the alternative set the order aside, and the court will decide what order it will make based on the facts.

 

It is of course entirely up to the op to decide what is the best course of action to take for her friend.

 

Haunter

[dx100uk]

some things here are to be honest not adding up

 

if recorded delivery of 2 cca requests were made.

then evidence of those and the addresses used should exist?

 

then the solicitors 'kearns' said i did not include a postal order which i did

 

but the long and short of it is i sent a CCA Request it was ignored

 

so they did write back not ignored them...

 

sent 2 to link financial they never opened the letters simply returned via royal mail unopened as i sent them may and june last year recorded delivery

 

lastly what is the debt and what type???

[AndyOrch]

Thanks. Yes, I know what you’re saying, but in this case posted here there has not been a procedural error by the court.

 

I know its a default Judgment...thats why you shouldn't use CPR 3.1(7) which you advised

 

In this case, the court was not aware that the creditor was not entitled to enforce the agreement, had the court known that the creditor had not complied with the cca request, it would not have awarded him any judgment, because s.77(4)(a) of the CCA 1974 prohibits the creditor from enforcing the agreement while he is in default of his obligation to comply with a cca request made under s.77 of the 1974 Act.

 

Thats why all claims must be acknowledged and defended then the history can be provided...assuming you receive the claim

 

So, in reality, the court was deceived and mislead by the creditor in respect of his entitlement to enforce, this means that the process by which the creditor obtained judgment involved an abuse of process, this is material non-disclosure by the creditor.

 

See above

 

If these material facts had not been suppressed and concealed from the court, the court would not have awarded the judgment to the creditor because it contravenes the prescribed law, the statutory provisions of s.77 of the 1974 Act, and for these reasons the same court has the power to revoke the order under CPR r.3.1(7).

 

They were not suppressed or concealed...a court does not even see the claim in a default judgment..therefore no procedural errors or orders were made to revoke....rubber stamped Judgment (Judgment is not an Order its the conclusion to the process )

 

The op’s friend should, in my opinion based on fact and law, set out these facts in the N244 application and ask for the order to be revoked. (see above)

 

Once the same court learns that the creditor was not entitled to enforce the agreement, it must revoke the order rather than just set it aside. I think you need to revisit CPR 13 to understand the difference between a set a side and an Appeal

 

There are a number of authorities on the point (CA and UKSC and HL) which confirm that a judge exercising parallel jurisdiction has the power to revoke an order under r.3.1(7) made by a same-level judge on grounds of material non-disclosure, for example. Yes in Appeals...not set a sides.

 

In this case here, we have material non-disclosure by the creditor, which is an abuse of process and interference with the administration of justice, and the statutory provisions of s.77 CCA 1974 preventing him from enforcing the agreement which justify the court revoking the order made against the op’s friend.

 

Not required to when its a default judgment...only the above can be questioned if the defendant defends the claim and process of trial then follows

 

For clarity, I am not ‘telling’ the op and the friend what to do, and I am not expecting the op and the friend to do anything, I am simply citing the law based on the facts of the case that the op has posted here, and what options are available in law based on those facts.

 

You are ...otherwise you would not of posted this theory and your misunderstanding of the CPR and Legal Process

 

If the facts posted here applied to my own personal case, then my application (N244) would be asking the court to revoke the order under r.3.1(7), or, in the alternative set the order aside, and the court will decide what order it will make based on the facts.

 

As already stated you cant revoke a judgment...you set it a side to allow a defendant to challenge the claim from its inception so CPR 3.1(7) would fail and only CPR 13 should be used in this process

It is of course entirely up to the op to decide what is the best course of action to take for her friend.

 

Haunter

 

Regards

 

Andy

[Haunter]

I stand by what I have said, and I am correct in law, there is no misunderstanding on part.

 

Collier v Williams [2006] EWCA Civ 20, on CPR r.3.1(7), at paragraphs 39 and 40 the appeal court held:

 

[39]We now turn to the third argument. CPR 3.1(7) gives a very general power to vary or revoke an order. Consideration was given to the circumstances in which that power might be used by Patten J in Lloyds Investment (Scandinavia) Limited v Christen Ager-Hanssen [2003] EWHC 1740 (Ch). He said at paragraph 7:-

"The Deputy Judge exercised a discretion under CPR Part 13.3. It is not open to me as a judge exercising a parallel jurisdiction in the same division of the High Court to entertain what would in effect be an appeal from that order. If the Defendant wished to challenge whether the order made by Mr Berry was disproportionate and wrong in principle, then he should have applied for permission to appeal to the Court of Appeal. I have been given no real reasons why this was not done. That course remains open to him even today, although he will have to persuade the Court of Appeal of the reasons why he should have what, on any view, is a very considerable extension of time. It seems to me that the only power available to me on this application is that contained in CPR Part 3.1(7), which enables the Court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ. It is therefore clear that I am not entitled to entertain this application on the basis of the Defendant's first main submission, that Mr Berry's order was in any event disproportionate and wrong in principle, although I am bound to say that I have some reservations as to whether he was right to impose a condition of this kind without in terms enquiring whether the Defendant had any realistic prospects of being able to comply with the condition."

[40]We endorse that approach. We agree that the power given by CPR 3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under 3.1(7).

 

In the case posted here by the op, the court was deceived and mislead into believing that the creditor was entitled to enforce the agreement, he was not, in fact, entitled to enforce, the court would be justified in revoking the ccj under r.3.1(7) based on the above qualified judgment of the Court of Appeal, which is just one in a number of authorities which confirms the principle.

 

Haunter

[AndyOrch]

I stand by what I have said, and I am correct in law, there is no misunderstanding on part.

 

Collier v Williams [2006] EWCA Civ 20, on CPR r.3.1(7), at paragraphs 39 and 40 the appeal court held:

 

[39]We now turn to the third argument. CPR 3.1(7) gives a very general power to vary or revoke an order. Consideration was given to the circumstances in which that power might be used by Patten J in Lloyds Investment (Scandinavia) Limited v Christen Ager-Hanssen [2003] EWHC 1740 (Ch). He said at paragraph 7:-

"The Deputy Judge exercised a discretion under CPR Part 13.3. It is not open to me as a judge exercising a parallel jurisdiction in the same division of the High Court to entertain what would in effect be an appeal from that order. If the Defendant wished to challenge whether the order made by Mr Berry was disproportionate and wrong in principle, then he should have applied for permission to appeal to the Court of Appeal. I have been given no real reasons why this was not done. That course remains open to him even today, although he will have to persuade the Court of Appeal of the reasons why he should have what, on any view, is a very considerable extension of time. It seems to me that the only power available to me on this application is that contained in CPR Part 3.1(7), which enables the Court to vary or revoke an order. This is not confined to purely procedural orders and there is no real guidance in the White Book as to the possible limits of the jurisdiction. Although this is not intended to be an exhaustive definition of the circumstances in which the power under CPR Part 3.1(7) is exercisable, it seems to me that, for the High Court to revisit one of its earlier orders, the Applicant must either show some material change of circumstances or that the judge who made the earlier order was misled in some way, whether innocently or otherwise, as to the correct factual position before him. The latter type of case would include, for example, a case of material non-disclosure on an application for an injunction. If all that is sought is a reconsideration of the order on the basis of the same material, then that can only be done, in my judgment, in the context of an appeal. Similarly it is not, I think, open to a party to the earlier application to seek in effect to re-argue that application by relying on submissions and evidence which were available to him at the time of the earlier hearing, but which, for whatever reason, he or his legal representatives chose not to employ. It is therefore clear that I am not entitled to entertain this application on the basis of the Defendant's first main submission, that Mr Berry's order was in any event disproportionate and wrong in principle, although I am bound to say that I have some reservations as to whether he was right to impose a condition of this kind without in terms enquiring whether the Defendant had any realistic prospects of being able to comply with the condition."

[40]We endorse that approach. We agree that the power given by CPR 3.1(7) cannot be used simply as an equivalent to an appeal against an order with which the applicant is dissatisfied. The circumstances outlined by Patten J are the only ones in which the power to revoke or vary an order already made should be exercised under 3.1(7).

 

In the case posted here by the op, the court was deceived and mislead into believing that the creditor was entitled to enforce the agreement, he was not, in fact, entitled to enforce, the court would be justified in revoking the ccj under r.3.1(7) based on the above qualified judgment of the Court of Appeal, which is just one in a number of authorities which confirms the principle.

 

Haunter

 

Again a Judge has not even viewed the claim...its a default judgment.....3.1(7) does not apply to setting a side a default judgment in a county court.

 

Anymore more responses will be removed and moved to a new thread to avoid hijacking and clogging this thread.

 

Andy

[lilyx0xmunster]

Sorry for not replying sooner have been really ill x

 

so do i forge ahead with an n244 and ex160a or just hope this falls on the common sense of the judge x

 

my friend has no financial back up to employ a solicitor to do this for her

so we are pretty much on our own and

no CAB here either x

 

as for ringing northhampton cc

yes i now have copies of a ccj issued for barclaycard/link financial in September

but prior to that nothing other than i sent a cca request to kearns and

 

they replied with a statement of account

there was a postal included o made sure i kept all paperwork relating to accounts being dealt with

and also sent eerything recorded delivery x

 

as for link financial they mever responded to my intial requests and just returned the letters unopened x

 

i think thats it?.. will be back online hopefully properly tomorrow x

 

tha k dx and everyone for helping me with this

[Haunter]

Your friend must make an application on the N244 to the original court; and

 

 

Your friend must file a response to the charging order, otherwise it will end up as another 'rubber stamp' job!

 

 

Haunter