Backdoor CCJ - old wages overpayment - now Andrew Wilson HCEO letter

[spurious]

In 2005, I worked for a company for approximately two months, and then left.

During the time I was working for them, I took approximately two weeks off sick, which they paid me despite me not being entitled to sick pay at that point.

When I left, they kept me on their payroll and paid me an extra month, to which I was also not entitled.

 

An exchange of correspondence was made between us, in which I agreed to repay what was paid to me in error whilst I was under contract, but refused to refund money that was paid to me while I was free from contractual obligations as this was quite clearly their error and, as far as I was concerned, their problem. The amount involved is just over £2,000.

 

I heard nothing more about the matter other then from a debt collection agency, who I furnished with details of the matter, and who then disappeared from the scene.

 

Cut to today; where Andrew Wilson & Co. have issued a notice of 'high court enforcement', hand delivered to my previous address.

I called them (which I never normally do, but wanted to know quickly what it was all about) and was told that a county court judgement was made against me on 12/4/07.

 

I received absolutely nothing by way of notification, summons, opportunity to defend myself and so forth.

I was told that I had 30 days from 12/4 to pay this (which has obviously come and gone) and that the only options available to me now would be to pay it in full or embark on some kind of payment plan and simultaneously apply for the judgement to be set aside if I disputed it.

 

What can I do about this?!

I've never had a CCJ before and the only point I knew it was in existence is when all the time I had to do anything about it has come and gone.

As far as I'm concerned, this company have no legal basis to ask me to pay this back outside of my contract for them, but the time to defend myself legally appears to have expired.

 

I'm concious that if I start to pay some of it off, that would be seen as legal recognition of the debt and I'd become duty-bound to pay all of it off.

Having said that, my legal knowledge extends only to pre-CCJ, and I'm somewhat out of my depth now.

 

I know once it's gone to court, bailiffs can be called in, and AW&CO said that they can only "attend the address" which they will do repeatedly until a satisfactory outcome is achieved, and every time they do, they're going to slap lots of new charges on it.

 

What are my options? I'm scared!!

[Tau]

Can you scan and post a copy of the order.

[spurious]

I will do when it's redirected up from the address it was sent to.

 

I have since sought advise from the National Debtline who have advised me to submit form N245 to the court so that monthly instalments can be court ordered and part of the judgement itself, thereby protecting me from an instalment plan informally made with this agency, who could change it if they saw fit. My disposable income is so low that the instalments will be nominal but as long as I keep up with them, nobody will be able to enforce the CCJ.

 

They also told me I had a good case to get the judgement set aside, but that unless I could pay the debt in full, the creditor would likely just re-apply and I'd be in the same situation.

[clutchingatstraws]

Hi Spurious

 

Don't panic I have quite a lot of experience with CCJs.

 

If you PM me your home address and phone number perhaps we can meet up for a drink and discuss them in depth.

 

What do you think?

 

Cas

[spurious]

Cas - pm is waiting for you.

 

I'm unsure whether to fill in N244 or N245. I'd really like to get this set aside, but I suspect that my subsequential negotiations with whoever is dealing with after that will fail (I can't pay them much!) and they'll just apply for another CCJ, by which time I won't be in the country (I'm going to Australia at the end of next month on a working holiday) so I won't be able to defend it properly. If I send in the judgement variation form, I'll probably be able to get the monthly instalments included as part of the CCJ itself, but.... I'll still have a CCJ.

 

I'll have to sleep on this I think.

[clutchingatstraws]

Spurious your PM doesen't seem to have arrived yet.

 

Hope you enjoy Australia I went there in 2005 on a contract servicing shotguns for an exclusive British manufacturer, what do you do for a living that gets you out there.

[make them aktiv runners]

There are 2 types of mistakes employers make, mistake in law which cannot be recovered full stop, and mistake in fact which cannot be recovered providing:

1) the overpayment was the fault of the company and not you.

2) it must have been reasonable for you not to know that you were overpaid.

3) you must have acted to your disadvantage or the assumption that the payment of salary was correct (for example by spending the money!).

 

As you were only there for 2 months it would be IMO impossible for you to claim that you did not know you were not entitled to the last payment. It is too late now but you may have been able to get out of the repaying the sickness one.

 

As there is no credit agreement there is no entry on your credit file for default etc. Not sure though if that fact would prevent the CCJ appearing on your credit file for the next 6 years. Anyone know for sure????

 

If it is going to appear on you file then I would definately go for getting it set aside. If you come to some repayment arrangements with them then a judge is less likely to grant them another CCJ as there would be no concerns for them to raise.

 

You also need a certificate off them once all repayments are made, confirming what has been repaid, when and what/when it related to. The reason being that you may well be due to a tax refund for that year and would have to claim it direct from the tax office. NB, you can only claim tax back from the last 7 tax years.

[kennyparkroad]

hope all goes well, watching this with interest.

[spurious]

Thanks - I've actually transferred this to a thread in the bailiffs section since thats what High Court Enforcement Officers are.

 

I've submitted the N244 form to the court today, and faxed a copy across to Andrew Wilson & Co along with the tenancy agreement for my current address to stop them taking action at my previous one. Once the court sets the judgement aside and removes all costs and fees that I incurred since it was served, I'll probably just pay the original debt off.

[spurious]

I'm going through all this at the moment and thought I'd create this thread to help out anybody interested in doing the same. After extensive conversations with National Debtline and lots of research online, I can offer the following advise (if anyone can correct or update this please chip in):

 

First of all, this relates to the setting aside (removing from the Register of Judgements) a County Court Judgement based soley on you not receiving the original summons. If you want to set aside a CCJ for any other reason, this guide is not meant for you.

 

You need to obtain form N244 (a generic court application notice) and send it to the court at which the judgement was originally obtained. This factsheet from the National Debtline is your friend and the specifics of which parts of the form to fill in (and the very useful sample form) is something you should study. Remember to sign Part B as well as the statement of truth at the end (something I didn't do the first time and had to send it in twice!). The fee for submitting this form is currently £65.

 

What the National Debtline's factsheet doesn't make terribly clear is that an N244 should only be submitted if you have a good chance of success; if you are not succesful, you'll end up paying all the costs which could be considerable. The way you can tell if you're going to be succesful is below. If you can't be sure, you may want to consider form N245 (an application to vary an existing judgement) which will allow regular instalments to become part of the CCJ itself instead of informally negotiated with a DCA which is much more dangerous.

 

In order for an N245 to stand a good chance of success:

 

* You must demonstrate why you did not receive the original CCJ or summons. If possible, provide evidence of this. For example, if you were not resident at the address, provide a tenancy agreement demonstrating this.

 

* You must give good reason why you did not give your new address to the creditor (being unaware of the debt at the time and therefore seeing no need to do so seems to work)

 

* You must state what would have been different had you known about the debt (for example, you would have paid it or defended the claim)

 

 

It appears to be a misconception that a judge is automatically going to set-aside a CCJ just because you claim you didn't get the documentation. The National Debtline tells me that if you have the above three things covered, you stand a better chance because it nearly always comes down to the subjective opinion of the district judge.

 

NB: Important. Before you file your N244, also find out what level of enforcement the judgement is at. Sometimes (like in my case) the judgement has gone to the High Court for enforcement. In this instance, in Part A you need to add that as well as looking for the judgement to be set-aside, you are also applying for all enforcement to be stayed pending the outcome of your application. It's probably a good idea to put that in regardless, actually - just in case. I was told it is a good idea to forward a copy of the N244 to the DCA or enforcement officers, who are unlikely to persue the matter while in dispute.

 

 

There we go. Thanks for all the advise either directly or indirectly given here - just trying to give something back

[TheAnalyst]

Very useful, thanks....

 

Did you have any joy in getting it set aside?

[spurious]

I'm in a long winded struggle to try and set aside a County Court judgement that was registered against me in April last year. I have so far sent two N244 forms to the court and followed each up with a letter which was put before the judge asking for the refusal to set it aside to be reconsidered. On each occasion the judge has again refused.

 

The debt is not your average 'default loan' or 'overdrawn bank account'. It concerns an overpayment from an employer. I finished work for the claimant and almost immediately moved address. I didn't update the claimant with a new address because my service for them as an employee had come to an end, and it wasn't therefore necessary. However, the following month, they overpaid me. I was not aware of this. In May last year, the occupiers of my previous address told me that High Court Enforcement Officers had been round and served a seizure notice. This was the first time I was aware of the debt at all.

 

I subsequently filed an N244 form within 24 hours and sent a copy to the bailiffs. To my knowledge it is still on hold pending resolution from my dispute. Now, prior to submitting the first N244 I contacted the Insolvency Helpline, Citizens Advice and the National Debtline. They all gave me consistent advise that if I could prove (as I did, by way of tenancy agreement) that I was not living at the address to which any summons was sent, and could demonstrate (as I believe I did) that there was no reasonable requirement for me to provide a consistently updated address to the claimant, and assure the judge that had I known about the debt I would have paid it, then it is extremely likely the ruling will be made in my favour. I have absolutely no idea why it hasn't been and am very frustrated at what I see as a series of perpetual misjudgements.

 

One factor is that I have been based overseas since last July. I have therefore been unable to attend any hearings that have been set. On the first N244 form, a hearing was set which I asked remotely, to be cancelled. The second N244 I ticked the box 'no hearing'. Could that prejudice the judgement? It surely doesn't determine the particulars of my claim.

 

The latest is this, and to bring me to my point, this is what I need help with: a letter I sent requesting a reconsideration of the last judgement made against me has just been refused. I have gotten the court to agree that I can submit yet another N244 form and they will waive the fee, because I have paid £150 already and haven't even had a hearing. Since it will cost me nothing but a recorded mail envelope, I am going to do it again, although all I can really do is just re-phrase information I have already provided the court. Is there a particular way I should make clear my position? I have a funny feeling that the judge in question isn't really bothering to look properly at my form because on doing so, it's obviously not your bog standard CCJ, so my N244 just gets rejected. This time, I am in the UK and will be making it clear that if what I have put on the form isn't enough for the judge to reach a verdict, I will be happy to attend a hearing. Do you think that will be enough? Or should I make some text bold, number my points and make things very, very obvious to the judge?

[tiglet]

I would put your points in numbered form, referring to statute law if possible.

 

Write it, post it on here (with identifying details removed) and we'll have a look at it for you.

[tomterm8]

Did the last two set aside requests get dismissed? If so, I can't see any reasonable prospect of success, unless this application introduces new grounds.

 

I would advise you to seek advice from a qualified legal advisor before issuing any further application. It is quite possible if you keep applying for set asides, the court may concider you a vexatious litigant, and may place a Civil Restraining order on you.

[spurious]

I would put your points in numbered form, referring to statute law if possible.

 

Thanks, do you know of any statute law or preceding cases I could cite as examples? Or where I'd go to find such things? A google search has proven fruitless.

 

tomterm8, I appreciate your comments. I think if I make it perfectly clear that this is the first N244 that I desire to be taken to the 'hearing' stage, that would provide a distinction from the others that would avoid me any issues like that.

[tomterm8]

Unfortunatly, while that may be common sence, it makes very little difference legally. The decision has already been made, and so you would either need to appeal one of the previous application notices, OR, introduce new grounds.

 

Legally, it makes no difference whether the decision was made at a hearing, or was made without a hearing.

 

You really MUST seek professional legal help at thism point. to fail to do so would be a very big mistake.

[spurious]

Ok, thanks again. Professional help is not something I can afford at the moment, and the free advice I've received indicated that I had a strong case for set-aside in the first place, so I'm kind of stuck

[tomterm8]

Have you tried the Bar pro-bono scheme, or your local college of law, or C.A.B. consultation?

[spurious]

On advice from the enforcement office of the county court, I am submitting the N244, as they said it would be the best move and even agreed to waive the cost involved. The particulars of claim are the following:

 

"1. I was not resident at the address to which any correspondence relating to this matter was sent. I had moved out of the property in September 2005. Please see the attached tenancy agreement as evidence of the address at which I was resident during the period of the judgement. Consequently, I was completely unaware of this entire matter until after the judgement had already been made.

 

2. The claimant is a previous employer of mine and the alleged debt occurred after I had finished working for them. I believe this fact to be relevant as the nature of my relationship with the claimant is central to my assertion that there was no duty or obligation for me to update the claimant with my new address. To my knowledge, there is no lawful requirement for any individual to inform previous employers with details of their current residence.

 

3. The alleged debt occurred directly through the administrative failings of the claimant, in respect of an oversight on their part that resulted in my name not being removed from their payroll, as it should have been when I stopped working for them. The sum in question is subsequently not covered by any law relating to credit, and at no time did I request or consent to the sum in question being paid to me.

 

4. Had I been aware of any pending court action, I would have disputed the legitimacy of this 'debt'. I would certainly have submitted a defence in court were I aware of the matter. On the decision of the court to set-aside the judgement, I would seek to correspond directly with the claimant concerning this with a view to reaching a mutual agreement.

 

5. Immediately I became aware of this matter, I acted without delay and applied for the set-aside of the judgement. I have previously been unable to attend any hearing relating to this due to residing overseas. I am now able to attend any hearing and should the evidence on this application be insufficient for a judgement to be made, I am willing and able to attend in person.

 

6. Should the court determine to set-aside the judgement, I also ask the court to consider suspension of the High Court action (ref: ********)."

 

 

Would you suggest I should add/delete/amend anything from this?

[tomterm8]

Your defence is not a defence... you need to use a few words such as : " i was not aware that the payment was made in error" and "I spent the money on XXXX" and the phrase "Change of position" in order to turn this into a defence. Some case law such as Lipkin Gorman –v- Karpnale [1991] 2 AC 548 At 578G - 579E per Lord Goff might help, too.

I'm sure if you PM a moderator, zootscoot would be a great choice, they could help you out.

[spurious]

My defence is not a defence because that's not what I'm submitting the application to do. This application is simply to set-aside the CCJ which I am arguing was registered unfairly. I do make references to the 'illegitimacy' of the debt, but this is a set-aside application and nothing else. Whether the original debt is valid or not is a bit of a grey area and I don't want the ambiguity of that issue to distract from my central argument to get the CCJ removed. Should the court set it aside, I would turn my attention to a defence then, which is something I alluded to in point number four, pointing to an attempt at a "mutual agreement" with the claimant.

 

Thanks for your tip on pm-ing zootscoot, I'll do that now!

[tomterm8]

The application MUST contain enough information to convince a judge that there would be a case to hear in the event the application was set aside. In order to be set aside, the application must contain the essence of your defence, and in my view the only defence from the information you've described is change of position, since you have admitted the ingredients to a restitutionary claim:

 

1. They paid money to you

2. In error.

 

Therefore, the burden of proof is on you as to why the money should not be paid back; this could be established under estoppel by representation (they said you didn't need to repay the debt) or by change of position (you spent the money honestly believing it to be yours, on something you wouldn't have otherwise spent the money on).

 

 

The fact they sent the claim form to your old address, is not in itself a defence, because that is in accordance with the service provisions of the Civil Procedure Rules, IMHO).

[spurious]

In order to be set aside, the application must contain the essence of your defence

 

So whether the judgement was registered fairly is irrelevant? Owing a debt having been given a chance to defend it, and being aware of any correspondence like summons etc. is wholly different from owing a debt and being completely out of the loop through no fault of your own. Surely a judge can see that? Even if I owe this debt, the very fact that a judgement has been made against me is hugely damaging from a personal perspective. There must surely be provision in law to appeal a judgement in itself regardless of liability of debt.

 

in my view the only defence from the information you've described is change of position .... the burden of proof is on you as to why the money should not be paid back; this could be established under estoppel by representation (they said you didn't need to repay the debt) or by change of position (you spent the money honestly believing it to be yours, on something you wouldn't have otherwise spent the money on).

Well I did spend the money believing it to be mine, but it wasn't mine. Having investigated the precedent you referred to, I'm inclined to add that to my particulars, and cite the example as a defence for repayment. So, point number four would now read:

 

"4. Had I been aware of any pending court action, I would have disputed the legitimacy of this 'debt'. In Lipkin Gorman (a firm) -v- Karpnale Limited [1991] 2 AC 548 ('Lipkin Gorman'), 'change of position' was held to be a defence to a restitutionary claim for repayment of money paid under a mistake of fact to the extent that it would be an injustice if the payee were called upon to repay or to repay in full. My defence would be to establish non-liability under estoppel by change of position."

 

Does that make sense? And do you think it would give the judge greater cause to set the judgement aside on the basis that a reasonable defence would otherwise have been made had I been aware of the matter?

[tomterm8]

One judge I talked to called the provisions of the civil procedure rules on deemed service draconian, and I entirely agree. It is actually worse that what you are saying. if a letter is sent, as long as they can prove they sent it, if it goes missing the claim form is still deemed served unless you can prove you never recieved it (how you do that I'll never know).

 

It is not fair, it is not just IMHO, but Judges have to abide by the law.

 

I think the paragraph you state would definatly improve your chances, you must state however that you spent the money on something you otherwise would not have bought.

[spurious]

Do I need to specify exactly, and does the nature of what I bought affect proceedings? I don't want to undermine the legitimacy of citing this precedent by specifying something frivolous. To be specific, the paragraph would read:

 

"4. Had I been aware of any pending court action, I would have disputed the legitimacy of this 'debt'. In Lipkin Gorman (a firm) -v- Karpnale Limited [1991] 2 AC 548 ('Lipkin Gorman'), 'change of position' was held to be a defence to a restitutionary claim for repayment of money paid under a mistake of fact to the extent that it would be an injustice if the payee were called upon to repay or to repay in full. My defence would be to establish non-liability under estoppel by change of position, given that I used the sum in question, believing it to be mine, to spend on airfare and accommodation overseas, which I would not otherwise have done were it not for the sum in question."

 

 

I understand that this is a qualifier to my particulars under the example of law I've given, but it does feel like I'm cheapening my point somewhat.

 

Btw, thanks so much for your help in this, I'd have been lost without you.