Non recipt of a summons and form N244
QuePasa
Looking for a bit of advice and not found anything relevant through the
search facility.
I have been in dispute with a company for several years now. I am
disputing the fees for some services provided (or not in this case).
Over the years, the company have regularly been sending letters to an
old address. Whilst I had mail forwarding, correspondence was received
and each time I wrote to them I used headed notepaper with my current
adddress at the time.
I offered to settle the dispute for a certain amount and that offer was
rejected. In the meantime the company started addressing the letters
with a typo in the name as well as to the old address.
The last correspondence was from their solicitors, addressed to the old
address but the postman delivered to our current ( at the time) address
and I signed for it. They included in their correspondence copies of
letters that I had never received as by that time the 6 months of mail
forwarding had finished. In those letters was an offer to settle the
dispute and I would certainly have talked with them about settling.
However, the letter was never received.
Also in the package were copies of letters we had received previously
but the dates on the copies were different from the originals I
received. The other thing in the package was a copy of the claimants
claim form. There was no summons or anything else. I decided to wait
for the summons and to defend the claim, as and when it ever arrived.
In the meantime I moved again. This time to the oter end of the
country. I had mail forwarding from the old address to the new address
for 9 months and nothing was ever heard again.
Last week I received a forwarded letter from my old address. I don't
know who forwarded it but it was re-directed to my new address. Inside
the letter was a red letter from HMCS with a bailiff ref and a warning
that if the letter was ignored then they had authorisation to sieze
goods etc. The due date for a response was already a week late. Also,
the address on the letter was to my old address and to the wrong name.
I have been on-line and downloaded a form N244 to have the judgement to
be set aside. The reason I have given is that I never received a summons
due to a change of address and that I would like the case to be reheard
so that I may enter a defence. I have also stated that in support of my
application I can present evidence to show that the claimant
consistently used poor accounting and record keeping practice as well
as having consistently used the incorrect name and address in their
correspondence to me and to their own lawyers.
I can also show that all correspondence was sent to the wrong name and
address and that the last correspondence I received from their
solicitor was almost a year ago and that had I received the offer of a
settlement I would ahve been willing to discuss it with them.
So, my main question to the forum is, will my form N244 be acceptable
to the court even though it is obviously long since the judgement was
made? (I have no idea when the judgement was made or what it was).
Also, how much of the evidence (all the correspondence between me and
the claimant including copies of emails and notes on conversations with
their representatives before the dispute) do I need to provide in
question 10 on the N244 form? Can I just summarise it there and wait
for a new hearing to present it or do they want it all at this stage?
Many thanks for your patience and I look forward to some interesting
responses.
--
QuePasa
Stutt
or not. If you do not, then you ought not to be trying to set aside
judgment at all. This answer assumes that you have a defence.
It seems to me probable that, notwithstanding that you did not live
there, the papers were served at your last known address, which means
that it is good service. You will therefore be relying on the Court's
discretion to set aside judgment.
This has 2 elements. Firstly, that an application must be made
promptly upon you finding out about the judgment (28 days has been
held to be probably too long), and secondly, that you have a real
defence.
The best practice would be to file he N244 with a draft defence
attached as soon as possible. Detailed evidence ought not to be
necessary at this stage, but you will need enough to persuade a judge
that you have a real prospect of defending the case. Don't send all of
the correspondence or masses of evidence. Doing that will (a) annoy
the judge and (b) make it look like you are trying to muddy everything
so as to manufacture a defence where none exists. Only send what is
necessary to show that you have a case.
The application to set aside judgment will be just that. The Judge
will not want to hear the case, nor should he. Tactically, you
probably don't want all of your evidence revealed then anyway.
You should expect there to be a possibility that you might have to pay
the claimant's costs of dealing with your application to set aside
judgment.
You should also speak to the bailiffs and explain that you will be
making an application to set aside. They are usually sensible so long
as they believe you.
Lee
QuePasa
Lee, thank you for taking the time to respond.
I believe that I have a good case and I would have liked to have had
the opportunity to defend it. I was not given that opportunity due to
the Claimants poor record keeping and consistent inability to send
correspondence to the correct name or address.
When the issue started I was living at address A. When I moved to
address B, the Claimant continued to send correspondence to address A
even though I pointed out to them that they were sending the
correspondence to the old, wrong address.
After I moved from address A, I used the post office mail forwarding
service for 9 months and I received and responded to them using my new
address, address B. The claimant then passed their case to their
solicitor who continued to send correspondence to address A and to the
wrong name.
I received a package from their solicitor almost a year after I had
moved from address A to address B even though it had been sent
registered to address A. The postman knew me and delivered to me at
address B. In the package were copies of all correspondence they
claimed to have sent me although, many of them I had not received
because they had been sent to the wrong name at address A and the post
office only forwarded mail if the name was correct. Also, in the
package was correspondence I had received and responded to but the
dates on the copies were different on the originals that I received.
Over a year and a half ago, I moved to address C and had all mail
forwarded from address B for 9 months. At no time did I receive any
summons or further correspondence from the Claimant or their
solicitors. The time from the last correspondence I received (signed
for and delivered by the postman but addressed to address A) is over 14
months ago.
The next thing I received is the bailiff letter stating that they were
going to force entrance to address B. Again, it was addressed to the
wrong name. It had been forwarded by someone, presumably the new owner
of address B.
So, aside from whether I have a defence or not against the Claimant, I
need to have the judgement set aside for the reasons above. I would
like to defend the claim because I believe that I have a defence which
is why I disputed the amount that is being claimed. In addition to
that, the shambolic way in which the Claimant has handled all
correspondence adds to the evidence I have against them that they are
wrong and they have made errors.
What I need to know at this stage is how much information do I need to
include in the N244. What wording should I use to request the set-aside
motion. Question #3 asks:
WHAT ORDER ARE YOU ASKING THE COURT TO MAKE AND WHY?
I think my response should be (but I stand to be corrected) is:
I intend to apply for an order that The Default Judgment entered
against me be set aside and a re-hearing ordered.
The main reasons being that the summons was never brought to my
attention is because I had moved to a new address and it was sent to an
old address with the wrong name and was not sent by recorded mail. I
also believe that I have a complete defence to the claimant's case.
Also, question #9 asks: *Who should be served with this application?*
Is there anybody else I should be sending this to?
Finally, question #10 asks: *What information will you be relying on,
in support of your application?*
I am considering stating the following although I don't know how much
detail should be in this answer:
Evidence will be presented to show that the Claimant has consistently
used poor accounting and record keeping to make their case. The
claimant will also be shown to have passed on the incorrect name and
addresses to their own solicitors.
After an initial offer to settle the the claim which was rejected by
the claimant, all subsequent correspondence was sent to the wrong
address with the wrong name.
Documents sent by the claimants solicitors, received by myself and
signed for after the postman took the initiative to deliver to a
different address, contain copies of correspondence that have altered
dates from the original and also copies of letters which were never
received due to incorrect name and address but contained an offer of
settlement that would have been acceptable by myself as the basis for
further negotiation.
To summarise, I have never been notified of any judgement and do not
know what the initial claim was. The only reason I know there has been
a judgement is because someone forwarded the bailiff letter to my
current address. Even the bailiff letter is addressed to the wrong
name.
As you will note in my statement in support of my claim, I note that
there was correspondence, which I did not receive, containing an offer
of settlement which, had I received it, I would have liked to have
discussed with the claimant as it was not much different from the
initial offer I made to settle the claim.
Sorry of it is all a bit long winded but I just want to get this over
and done with as it has been dragging on for almost 4 years. I am in
dispute with the claimant over the amount and I believe that I have a
valid defence. I was not given any opportunity to defend the claim.
--
QuePasa
Robbo Latchford
www.hmcourts-service.gov.uk/.../Commercial%20Court%20Guide%20December%202006%20rev1%20rh%20clean.pdf
www.hmcourts-service.gov.uk/docs/guide.pdf
www.oup.com/uk/booksites/content/019927780X/ch_36
Rob
Roland Perry
Jul 2008, QuePasa <QuePasa...@legalbanter.co.uk> remarked:
>WHAT ORDER ARE YOU ASKING THE COURT TO MAKE AND WHY?
>
>I think my response should be (but I stand to be corrected) is:
>
>I intend to apply for an order that The Default Judgment entered
>against me be set aside and a re-hearing ordered.
>The main reasons being that the summons was never brought to my
>attention is because I had moved to a new address and it was sent to an
>old address with the wrong name and was not sent by recorded mail.
I would make the point here explicitly, about having notified the
plaintiff, and their solicitors, X times that you had moved.
--
Roland Perry
Scary Lee
The Order that you are asking the Court to make is 'to set aside
judgment with consequential directions, pursuant to Part 13 od the
Civil Procedure Rules'.
Please be careful. You are making submissions to the Court that you
have a real prospect of successfully defending when you do not know
what the claim said - it is possible that you have no defence. Having
heard what you now have to say, I would be minded to not second guess
the content of the claim, but instead to say that you have never
received the claim form and you still do not know the basis of the
claim. It might be sensible to ask the Court to send you a copy of the
Claim Form, so that you can see whether you have got a Defence (and if
you have, prepare a draft defence to go with the applicaiton, as
stated in my previous response).
If the Court realises that you do not know what you are supposed to
have done it will almost certainly order a set aside.
On the facts as I understand them, you are setting aside a default
judgment. That means that there has not been a hearing, only that you
failed to respond to the claim in time, understandably as you didn't
get the papers. You should not therefore ask for a rehearing.
What you should be gunning for is directions to take the dispute to
trial, starting with one that you are served with the Claim Form and
allowed to defend it. After that, you should be seeking directions to
a trial, including exchange of evidence and witness statements. The
Court will absolutely not be interested on who it things is going to
win ultimately, only whether your defence is real; so there is no need
for all of your paperwork to come out at this stage.
The Claimant is the respondent and the only person who needs to be
served.
Remember to act promptly please.
Lee (same one, just changed identity)
QuePasa
Thanks. I'll amend it to state:
I intend to apply for an order that The Default Judgment entered
against me be set aside and a re-hearing ordered.
After notifying the Claimant numerous times over the course of 14
months of a change in my address, they never updated their own records
and continued writing to me at my old address. After moving again, even
though mail was forwarded to my new address for 9 months, no notice of
claim was served.
How does that sound?
Also, I have been to the CAB today and found some interesting
information from the courts, namely:
-*Setting aside judgement*
Either party can apply to the court to have a judgement or order set
aside, that is, cancelled. In some circumstances
_the_court_MUST_set_aside_an_order_ and in some circumstances
_the_court_MAY_set_aside_an_order_. The claimant is under a duty to
apply to set aside a judgement if s/he claims s/he sent particulars of
claim to a defendant and then entered judgement because the client did
not respond within time limits. If the claimant then has good reason to
believe that the particulars of claim did not reach the client, s/he
must file a request for the judgement to be set aside or apply to the
court for directions (instructions). The claimant is not allowed to
take any further steps to enforce the judgement until the judgement has
been set aside or the court has dealt with the application for
directions. A defendant therefore who was not served with particulars
of claim and who later finds out that judgement has been entered
against her/him must contact the claimant to explain that s/he must
file a request for the judgement to be set aside.-
My understanding of that last paragraph is that the Claimant has a duty
to ask that the judgement be set aside if I can prove that they sent
their claim to the wrong address and with the wrong name. I have
correspondence to show that the for over two years the claimant was
using the wrong name and address. All correspondence from myself was on
letterheaded paper showing my correct address and my correct name. All
correspondence from the claimant and their solicitors show that they
were responding to that correspondence to the wrong name and address.
From what I can ascertain, the judgement has been made to the wrong
name at the wrong address. There have been two moves since the dispute
started and I have had all mail redirected from both addresses for 9
months in each case. Before the last move, there had been no
correspondence with the claimant or their solicitor for over a 20
months.
Recently I have had to apply for credit for a business phone and the
search came back with no problems. However, I do not want to ignore
this problem and I am willing to come to a settlement with the claimant
but they do not appear to have the common sense to make sure that they
are pursuing their client using the correct name or the correct
address.
Part of my defence of the claim is that the claimant did breached their
side of the contract and I do not owe them what they are claiming. I
have documentary evidence to support my defence and now, with this
judgement having been made to the wrong name at the wrong address, I
can also show that the claimant has a serious problem with their record
keeping which will back up my defence that they made mistakes and
breached their own contract.
--
QuePasa
Scary Lee
>
> My understanding of that last paragraph is that the Claimant has a duty
> to ask that the judgement be set aside if I can prove that they sent
> their claim to the wrong address and with the wrong name. I have
> correspondence to show that the for over two years the claimant was
> using the wrong name and address. All correspondence from myself was on
> letterheaded paper showing my correct address and my correct name. All
> correspondence from the claimant and their solicitors show that they
> were responding to that correspondence to the wrong name and address.
>
That form is out of date. There is no longer an obligation on the
Claimant to apply to set aside a judgment if he believes that the
claim form was not received. It is for you to make the application.
You may be able to say that you were not properly served if the
Claimant did not believe that the address to which the forms were sent
was your 'last known address', which sounds like it might apply here.
Otherwise, you are relying on the Court's discretion. Either way, it
is your application.
The suggestion of what to put in the form sounds like it will be
appropriate, except that you are not asking for a rehearing, because
there has not been a hearing. You are asking for directions
consequential to the set aside.
Ian Jackson
QuePasa <QuePasa...@legalbanter.co.uk> wrote:
>I intend to apply for an order that The Default Judgment entered
>against me be set aside and a re-hearing ordered.
>After notifying the Claimant numerous times over the course of 14
>months of a change in my address, they never updated their own records
>and continued writing to me at my old address. After moving again, even
>though mail was forwarded to my new address for 9 months, no notice of
>claim was served.
>
>How does that sound?
That sounds reasonable. You don't mention whether you notified them
about the second change of address.
You should be as specific and strong as you can be about the
notifications you sent to the claimants about your address changes.
Your postings here sometimes seem slightly to miss that point.
So rather than
notifying the Claimant numerous times over the course of 14 months
say
notifying the Claimant numerous times (at least six)
over the course of 14 months
And rather than
After moving again, even though mail was forwarded to my new address
for 9 months, ...
say
After moving again, and again notifying the Claimant N times,
and having mail was forwarded to my new address for 9 months, ...
You should be ready to back these figures up with dates, copies of
your own letters, etc., as with everything else.
One other thing I wanted to mention on this point. You keep
mentioning this:
> All correspondence from myself was on
>letterheaded paper showing my correct address and my correct name.
This is all very well but did you _specifically draw the change, and
their error, to their attention_ ? How many times ? Without that,
your contention that you notified them is weaker.
>Part of my defence of the claim is that the claimant did breached their
>side of the contract and I do not owe them what they are claiming. I
>have documentary evidence to support my defence and now, with this
>judgement having been made to the wrong name at the wrong address, I
>can also show that the claimant has a serious problem with their record
>keeping which will back up my defence that they made mistakes and
>breached their own contract.
You should think about what the claimants are likely to say in
response to both your assertions about changes of address, and in
response to your defence. Think about how you will rebut their
assertions - you will need to convince the judge, and simply being
right is not enough.
--
Ian Jackson personal email: <ijac...@chiark.greenend.org.uk>
These opinions are my own. http://www.chiark.greenend.org.uk/~ijackson/
PGP2 key 1024R/0x23f5addb, fingerprint 5906F687 BD03ACAD 0D8E602E FCF37657
QuePasa
Many thanks for the replies above.
I fear I may not have made myself understood about the claim. I have
been in dispute with the claimant since late 2004 over a bill for
"extras" that I do not agree with. The claimant is demanding that the
bill be paid in full and I disagree with the total. I have explained to
the claimant why and provided evidence to substantiate my reasons. I
offered to settle the claim for a reduced amount but that offer was
rejected.
There has been correspondence between us. The problem is that the
claimant insisted on responding to all correspondence to an old address
even though he had been informed of the new address and all my
correspondence was on letterheaded paper with the correct address.
Some of the claimants correspondence did reach us and some did not. I
understand that the reason some of the correspondence did not reach us
is because the Royal Mail is only supposed to forward mail to a new
address if the name is correct. I don't know why some got through and
some did not. Also, a cheque I had sent to the claimant was sent back
to the correct address although still to the wrong name, even though
the cheque was in my name.
Also, when I finally received a package from the claimant containing
their copies of all correspondence, it was again only through the
initiative of the postman who, although it was addressed to the wrong
name and address, knew that we were the previous occupants of that
address and we were still on his round. By this time I was less than
three weeks away from moving again, this time to a different part of
the country.
Because of the claimants continual use of the wrong name and address
and the fact that the package I received contained a copy of an
unsigned, unstamped N1 Claim Form with no claim number, I assumed that
they were going to take the matter to court. I decide to write to the
claimant by email because before the dispute started, we had
communicated by that means. I stated in the email that I had received
the package, I noted that there were copies of correspondence that had
never been received, including a revised offer to reduce the amount
owing which was not much different from the initial offer I had made
and also, that he was still using the incorrect name and address,
including the one on the copy of the unsigned N1.
In the email, aside from pointing out the incorrect name and address, I
stated that if he still insisted on taking the matter to court, I would
be defending the claim. That was the last I ever heard on the matter
from them or anyone else.
As far as I'm concerned, I could ignore this as the judgement is
against a different name. It hasn't affected my credit rating. However,
I believe that I should do the right thing as I know that I do owe the
claimant some money, just not the amount he is claiming.
So, based on the previous answers, should I then just be asking for the
judgement to be set aside because it is against the wrong name and that
it was knowingly served to the wrong address and I therefore had no
opportunity to respond to the claim nor offer a defence? This is the
confusing part. I have not seen the official claim but I do have an
unsigned, unstamped, undated, no claim number, copy of their Form N1.
Do I assume that that is exactly what they filed? I doubt they would
have filed anything much different. In their details they state that I
have refused to pay an outstanding account. My defence is that I have
not refused to pay. I am disputing the amount claimed and I have
offered to pay what I believe is the correct amount.
So, do I not have the right, if it went to court, to have a judge
examine the evidence and decide who is right and who is wrong. The only
reason a judgement was made was by default and that was due to the
claimant not using the correct name and address to serve the claim.
As far as I can tell, the claimant did not serve the claim to the last
known address. The claimant did return a cheque to the last known
address but subsequently continued to send all correspondence to the
previous address.
Just had some legal advice and I was told that if I wanted, I can just
ignore it as there is no judgement against me but against someone else.
However, I I wish to do the right thing and get the judgement set aside,
I need to get the court to let me know the claim number and what the
claim and the judgement was. All I know at the moment is that a bailiff
has tried to serve a warrant to someone else at an old address. I have
never received anything official from anyone.
I'm off to try ad get the court to give me more details.
--
QuePasa
Roland Perry
>us is because the Royal Mail is only supposed to forward mail to a new
>address if the name is correct.
The forwarding process is implemented by the postman for the local
delivery round recognising (by eye/hand etc prompted by a note he once
got from central office) the letters that need redirecting.
How strict his pattern-matching is for *exact* rather than *approximate*
or *common sense* names is entirely down to the individual.
You've never actually told us how "wrong" the name was, to which some of
the correspondence was addressed.
--
Roland Perry
QuePasa
Thanks for the responses so far. I have now filled in the form and
complied the evidence. I have copies of all correspondence that I sent
and copies of their correspondence that they sent to me up to the end
of 2006. I have also highlighted the number of times I pointed out to
them the errors. I have also highlighted the fact that they did indeed
use the correct name and address a few times midway through the process
but then reverted to the errors again and up until the last
correspondence.
The details about the mail forwarding show that the receipt of
correspondence addressed to the wrong name and address was erratic. The
last correspondence received was the package of the claimants
correspondence addressed to the wrong name and address but delivered by
the postman on his own initiative. In that package I found copies of
correspondence that I never received.
I finally tracked down which county court the judgement was made and
called them today. The claim was indeed filed to the wrong name and
address. In my evidence, I have pointed out that several times, early
on and after the dispute became official, the claimant had used the
correct name and address. If the claimant then reverted back to using
the wrong address, I believe I have a defence to have the judgement
set-aside.
I moved in December 2006 to completely different part of the country.
My mail was forwarded until September 2007. The claim was entered on
March 2007 and judgement made in July 2007. If the correct name and
address had been used, I would have been served with the claim and I
could have responded and defended the claim in my local jurisdiction.
As it is, the claim was entered and heard in a county court outside of
my local jurisdiction, even if I had still been living there.
I'll await a response from the court. Many thanks for the assistance.
--
QuePasa