** STRUCK OUT *** Need help to apply for CCJ to be set aside

[thonvh2017]

Re: Need help to apply for CCJ to be set aside

Dear R0b,

Sorry did not see your above posts before I posted the message below. Updated has been made.

First of all, thank you for your great help.

May I ask you the following questions:

1. Do I need to write a separate defence statement similar to the one I posted above; but no legal arguments should be included; just the facts in cronological order?

2. Then send to the court the followings:

-N244 form
-Witness statement
-Defence statement or statement of support
-All evidences stated in the defence statement (emails, legal fee receipts, appointment letter, unsigned medical report, one-page particulars of claim, etc.)

3. Do I need to send all the above documents to the Claimant too?

I very appreciate your help.

Cheers
Thon

[R0b]

Re: Need help to apply for CCJ to be set aside

It is usually prudent to include a draft defence to show you have a reasonably prospect of defending the claim against you. If you don't judges might sometimes adjourn and ask you to provide one causing further delays or if you don't provide one and the judge disagrees that there is not any other good reason to set aside the CCJ, then you are stuck unless you appeal.

If you are going to write a draft defence then you set it out in the same way as your Witness Statement but instead of the heading saying "Witness Statement of ...." it should say "Draft Defence". But in order to write a defence you need to know what the particulars of claim states, you can't write it blindly, though if you can't get access to the particulars within a sufficient time then you could have a stab at it to show that there is some merit in your case, but you would want the right to file a proper defence following the set aside and upon receiving the particulars of claim - all of this bit goes into the draft order which is also recommended that you include as part of your application so that the judge knows what type of order you are seeking.

In your first attempt of your witness statement, paragraph 9 onwards reads like a defence, though you need to be concise with it rather than the way you have written it. In your defence you would normally say that something is admitted, not admitted or denied. If you deny something you need to provide a reason why it is denied e.g. 'It is denied that the Defendant entered into the said contract in which he agreed to pay the Claimant for their services at an hourly rate. The Defendant will say that in the initial consultation, the solicitor employed by the Claimant verbally agreed that ....'

If you post up a copy of the particulars I could give some pointers but without seeing what is said, its difficult to say much more. I would suggest though that you go back to the link I provided which shows how a defence should be set out and several revisions. You can also see another example here -> Click here for another defence example

-All evidences stated in the defence statement (emails, legal fee receipts, appointment letter, unsigned medical report, one-page particulars of claim, etc.)

You don't send any of this to the court at this stage. Only the exhibits contained in your witness statement, if any is referred to.

Ordinarily you don't need to send it to the Claimants as the court will do this, but you can do so if you want to as a precaution in case they say it was never received. It's best to get your application right first time than risk having it struck out or your application denied.

If you want to post up your draft defence for comments feel free.

[thonvh2017]

Re: Need help to apply for CCJ to be set aside

Thanks for great advice, R0b.

I have phoned the court again today as I am very worried about a delay in submitting N244 with other docs which might be, and at the same time the court Bailiff will come to my house?
Moreover, I also found out that the court has not sent me all documents (claim form N1, judgement, etc.) I requested yesterday as I need to pay for them. I am required to put it in writing so that they will phone me back to make a payment; the court clerk has sent N244 to me instead. I have sent an email to the court today requesting those documents. I am glad I have called the court today; otherwise, I will wait to receive nothing!
As soon as I receive them including particulars of claim, I will prepare my Defence statement and post both particulars and that statement so that you can correct them.

Many thanks again for you and your team helping thousands of people and victims

Cheers
Thon

[thonvh2017]

Re: Need help to apply for CCJ to be set aside

Dear R0b,

Update: I have received claim form and ccj judgment against me from the court today. There are no particulars of claims; I has spoken to the court again this morning who advised that there were not particulars of claim submitted by the claimant to the court.

I attached the followings for your information:

1. Claim form
2. CCJ judgement against me




How would the Judge makes a quick decision to award the defendant based only on the claim form; no evidences have been provided; no hearing has been arranged?

Plus I did not even received so called invoice of 9th Setptember 2016 mentioned in the claim form. I had been disputing throughtout the period with them. It seems they make a fake invoice!

I very appreciate your advice.

Cheers
Thon

[Amethyst]

Re: Need help to apply for CCJ to be set aside

Just editing the docs for you... two mins

here

[thonvh2017]

Re: Need help to apply for CCJ to be set aside

Hi R0b,

I prepared my Defence Draft yesterday based on your above advice.

I have put all events in cronological order to help support my witness statement as you can see below:

BIRMINGHAM COUNTY COURT CLAIM No. ######
BETWEEN
COTTAMS SOLICITORS COTTAMS SOLICITORS
-V-
[DEFENDANT’S NAME] DEFENDANT

__________________________________________________ _______________________
DEFENCE DRAFT
__________________________________________________ _______________________

1. In this Defence:
   1. except as expressly admitted, the Defendant requires the Claimant to prove its claims; and
   2. entirely without prejudice to that requirement and except as expressly admitted, the Defendant denies each and every allegation in the Particulars of Claim.
   
   
2. Proceedings have been issued against me by Cottams Solicitors (“Cottams Solicitors”).
3. I confirm that the address on the Claim Form is my old address and that matter is at issue. I have left a flat at 351 Halesowen Road, Cradley Heath, B64 6PH (“351 Halesowen Road”), since 25/11/2016. Because of that I did not receive the Claim Form at that address.
4. Had the Claim Form been received I would have defended the Claim. However, as it was not received I cannot defend a claim I know nothing about. I believe that the claim originated from the County Court Business Centre in Northampton which is not my home Court. May be it possible for the claim to be transferred to Stoke-on-Trent Combined Court?

The Agreement

1. I confirm that I have never entered into any agreement with Cottams Solicitors to pay their legal fees per hour.
2. In February 2016 I contacted Cottams Solicitors, and on 09/02/2016 I had an initial discussion with Cottams Solicitors in Mr H. Cottam’s office. It sounds too good to be true that Cottams Solicitors charges only £90 for unlimited discussions/advice. I believe I spent about 30 minutes discussing my personal injury case with Cottams Solicitors. I was required to pay £90 to Cottams Solicitors before I left Mr Cottam’s office.
3. During the above meeting, Cottams Solicitors agreed with me on a fixed legal fee contract. Cottams Solicitors stated that he would charge a fixed legal fee of £600 including VAT for the following work: drafting particulars of claims and general legal advice, plus another £500 including VAT for instructing a plastic surgeon to produce a medical report for my personal injury case. I agreed with the fixed fee which I could get some financial help from my family to pay.
4. On 22/03/2016 I had another meeting with Cottams Solicitors in Mr Cottam’s office after I received stamped claim forms from the court. I believe the meeting last less than 15 minutes, but I was required to pay another £90 before I left Cottams Solicitors’s office.

Legal Fee’s Disputes

1. On 11/04/2016 I had the third meeting with Cottams Solicitors in his office after I obtained a medical report from Queen Elizabeth Hospital where I had a treatment, and a postal address of the Defendant (in my personal injury case) from a tracing agency. During the meeting Cottams Solicitors had taken the original copies of my medical report and police letter which they had never returned to me despite my repeated requests. I was required to pay £600 as a deposit so that Cottams Solicitors could start working on my case. I paid that amount of £600 using Cottams Solicitors’s payment machine before I left their office.
2. After the above payment, Cottams Solicitors did not provide, straight away, the agreement that they would charge a fixed legal fee as agreed during my above initial meeting despite my repeated requests.
3. On 29/04/2016 Cottams Solicitors sent me an email and required me to sign an agreement contract letter in which their legal fee was £201 per hour different from what Cottams Solicitors agreed with me on 09/02/2016.
4. Because of that, on 03/05/2016 I emailed Cottams Solicitors and refused to sign the above agreement. Since that time I confirm that my disputes with the legal fee agreement had been made aware to Cottams Solicitors who failed to respond to me whether they would charge a fixed legal fee or a fee per an hour basis.
5. I do not recall signing that agreement at that time, and do not hold a copy of the agreement or terms of that agreement. I can confirm that no major legal work described above had been done yet by Cottams Solicitors at that time except a letter sent to the Defendant (in my personal injury case), and an instruction Cottams Solicitors claimed to have sent to a plastic surgeon.
6. Because of the above and due to the court deadline approaching, I was also looking for an alternative solicitor or barrister who could help me with my personal injury while the disputes were going on.
7. On 19/05/2016 a Public Access Barrister agreed to assist in my case. Based on his clerk email his legal fee was only £420 plus VAT. That fee included the draft of particulars of claim, and general legal advice which I believed I had requested.
8. After I found the Barrister above, I believed I had sent emails to Cottams Solicitors to further disagree with their legal fee contract letter, and on 31/05/2016 I phoned Cottams Solicitors and gave a deadline to them to respond, through their clerk, to my concerns over the fee agreement letter he had asked me to sign. I said to his clerk that if Cottams Solicitors (Mr H. Cottam) did not answer me by next day, I had no choice, but to move on to a different solicitor/barrister.
9. Therefore, on 01/06/2016, Mr H. Cottams phoned me and said “that was what he was saying or agreed” in his responses to my repeated questions about whether he kindly agreed with a fixed legal fee contract agreed verbally on 09/02/2016 in his office. Mr H. Cottams seemed to avoid saying his agreement explicitly on that phone conversation with me.
10. Because of the above conversation, I decided not to transfer my case to the public access barrister I found above. I then made an application, to the court, for extension to the deadline of service of submitting particulars of claim and medical report from a plastic surgeon.
11. I believed after the above phone conversation, I informed Cottams Solicitors, by email, of the application for extension I had made, as well as a record of what he agreed with me on the phone call of 01/06/2016.
12. That was why on 15/06/2016 Cottams Solicitors emailed me to acknowledge the receipt of my email, and to confirm what Mr H. Cottams said during the above phone conversation by stating that “I confirm what I have already made clear as to the level of fees”. His statement was not clear to me at all at that time. I therefore started to worry about Cottams Solicitors’ behaviour again due to their unclear statement of the legal fee in that email.
13. In case Cottams Solicitors claimed I agreed to pay him a legal fee per hour during the phone call on 01/06/2016, I had a good reason to dispute their claim. If Cottams Solicitors had not agreed with me during that phone conversation, I would have instructed the Public Access Barrister for only £420 plus VAT which was less than £600 including VAT charged by Cottams Solicitors.
14. During the above period of disputes, I also contacted three different plastic surgeon firms regarding a medical report, and found one of them to which Cottams Solicitors referred; it was Atul Khanna’s surgeon who stated that they had not received an instruction from Cottams Solicitors who claimed to have sent it to the surgeon when they sent an email to me on 29/04/2016. Three of them advised me that it would take only up to only three weeks to arrange an appointment to see a surgeon for a medical report.
15. Because of the above, I was upset with a long delay caused by Cottams Solicitors as I could not submit my court paperwork before the deadline to which I had to make an application for the extension as stated above. I believe I had informed Cottams Solicitors of his instruction not received by the surgeon, and then Cottams Solicitors phoned me to confirm they had sent another instruction to the surgeon.
16. On 27/07/2016 I went to see the plastic surgeon, Mr Atul Khanna, after I received an appointment letter from his surgeon firm.
17. For many days after my appointment with the plastic surgeon above, I had still not heard anything from Cottams Solicitors whether they had obtained a medical report from the surgeon or finished a draft of particulars of claim. I had been very worried and distressed about this delay as my new court deadline was 30/09/2016. On 15/08/2017 I phoned Cottams Solicitors who called me back to confirm that they would send me the draft of particulars of claim plus medical report from the surgeon soon.
18. I believed at around the end of August 2016, Cottams Solicitors emailed me the particulars of claim and a medical report from the plastic surgeon with a new legal fee they stated in that email. I could remember that they required me to pay much more than I agreed with him which was only £500 including VAT on top of £600 I had already paid.
19. I believe that I did dispute that legal fee in an email sent to Cottams Solicitors. I believed I was initially trying to offer an extra amount of money to avoid unnecessary disputes. But Cottams Solicitors did not agree with my offer.
20. I believe Cottams Solicitors counted every single email I had sent to him toward a legal fee which was charged per hour whose agreement I never signed. That may be one of the reasons that Cottams Solicitors delayed completing my court paperwork and were very slow to respond to my enquiries or concerns which resulted in my great worries about the court deadline.
21. I believe one or two days later I found out that Cottams Solicitors’s particulars of claim contained no legal arguments compared to what I found on the Internet; it was similar to a normal letter. Because of this, I no longer offered extra fee I suggested above. I believed on 01/06/2016 and 03/06/2016 I informed Cottams Solicitors, by phone/email, of their particulars of claims not containing legal arguments or legislations.
22. I believe on 03/09/2016 Mr H. Cottams phoned me back as usually. There were loud arguments between Mr H. Cottams and me during that phone call, and I said to Mr H. Cottams that his particulars of claim did not contain legal arguments which would not be accepted by the court as a legal document. But Mr H. Cottams seemed to avoid that discussion, and tried to talk about his instruction to the plastic surgeon instead. I said to Mr H. Cottams that was not a case anymore; the issue was his particulars were just a normal letter.
23. Because of that, I decided to go back to the above Public Access Barrister’s clerk for legal help. Because the Barrister’s clerk was too slow to respond to my email, due to the court deadline (30/09/2016) approaching, on 07/09/2016 I decided to instruct a different Public Access Barrister, Mr John Meredith Hardy, who helped draft particulars of claim and provided general legal advice for a fixed legal fee of £600 including VAT. It took him only two days to finish drafting the particulars of claim for my case instead of weeks of delay caused by Cottams Solicitors.
24. However, Mr J. Meredith had later found out that the medical report from Cottams Solicitors was not signed by the plastic surgeon, Mr Atul Khanna. I confirm that during my legal consultations with Mr J. Meredith, I was advised to file a professional negligence case against Cottams Solicitors. That was when I started to write a brief of my case against Cottams Solicitors.
25. I confirm that I informed Mr Meredith that because I was very unwell due to permanent illnesses I had suffered since early 2015 which were Diabetes Type 2 and Hepatitis C with Cirrhosis, I was not able to cope with that case against Cottams Solicitors. Therefore, Mr Meredith advised me to write a letter which I did on 30/09/2016 to Cottams Solicitors to request a signed copy of medical report for which I had paid a fee of £600.
26. I confirm that I did not get a response to my above letter from Cottams Solicitors during the period I was living in the rented flat at 351 Halesowen Road. I did not phone nor email Cottams Solicitors for their response to my letter because I decided to move on with my personal injury case. This was also because it was hard for me to get on with my above illnesses; I was having a Hepatitis C treatment till July 2016 at Queen Elizabeth Hospital, and during and after the treatment I usually had blood coming from my nose.
27. And due to the end of the tenancy agreement, on 25/11/2017 I decided to leave that flat for a new accommodation at 64 King William Stret, Stoke-On-Trent, ST6 6EH (“64 King William Street”)
28. However, on 13/12/2016 I received an email from Cottams Solicitors in a response to my letter of 30/09/2016 above. At that time I was living in the above new accommodation in Stoke-On-Trent, and I did not see whether Cottams Solicitors would like to make a claim against me.
29. I confirm that I have lost most of my email communications with Cottams Solicitors due to the fact that my computer was crashing in January 2017, and I had to reinstall an Operation System (MS Windows 7) on it wiping out Thunderbird email application which stored those emails. Those emails were not stored in original Yahoo mail box due to the way I configured Thunderbird. I managed to print out some main documents especially during September 2016 while I was receiving legal advice from Mr J. Meredith. Moreover, I managed to print out some main emails as evidences used to support my statement.
30. Although I could remember that I might have encouraged Cottams Solicitors to file a claim against me during the disputes, or Cottams Solicitors threatened to sue me, I do not recall Cottams Solicitors actually filing a case against me even I was living in Stoke-On-Trent.
31. I had no intention to escape from the claim filed by Cottams Solicitors against me because I did not believe I owe Cottams Solicitors any amount of money. I never signed an agreement to pay Cottams Solicitors on a per hour basis. I confirm that as soon as I arrived in my new accommodation in Stoke-On-Trent, I updated my electoral record with Stoke-On-Trent Council, my records with my bank and council tax, etc. On 10/01/2017, Stoke-On-Trent City Council sent me a letter to confirm my electoral registration. If I had been willing to escape from a claim against me, why would I have updated those of my records?
32. To comply with the court order, I had been legally advised to submit a signed medical report so that my case stayed valid. Therefore, on 15/03/2017 I paid another surgeon, Mr Janardan Kantilal Vyas, for a signed medical report as the unsigned medical report provided by Cottams Solicitors was not accepted by the court. Mr J Vyas’s fee was only £250 including VAT.
33. I confirm that I have received no Deed of Assigment from Cottams Solicitors.
34. I do not believe that Cottams Solicitors has any right to make a claim against me. I do not believe that I am indebted to Cottams Solicitors whether as alleged or at all.
35. In the circumstances I should be grateful if the Court would take into account that I did not receive the Claim Form and have, therefore, been deprived of the opportunity of defending the Claim.
36. Further that I have reasonable prospects of successfully defending the Claim.

STATEMENT OF TRUTH
I believe that the facts stated in this Witness Statement are true.
Signed: _____________________________
Dated: _______________________________
[Defendant's Name]
DEFENDANT



Would you kindly help have comments on my Defence Draft above?

Cheers
Thon

[R0b]

Re: Need help to apply for CCJ to be set aside

Hi Thorn I will have a look at it over lunch today

[R0b]

Re: Need help to apply for CCJ to be set aside

Hi Thorn,


I've taken a look at your defence and I have a few comments.


1. Your defence should be in third person not first. So change the 'I' to 'the Defendant'.


2. The defence should relate to why you deny that Cottams should not be entitled to the sums owed. Paras. 2-4 read as if they should be in your witness statement as to why they should be set aside (see below quote).

1. Proceedings have been issued against me by Cottams Solicitors (“Cottams Solicitors”).
2. I confirm that the address on the Claim Form is my old address and that matter is at issue. I have left a flat at 351 Halesowen Road, Cradley Heath, B64 6PH (“351 Halesowen Road”), since 25/11/2016. Because of that I did not receive the Claim Form at that address.
3. Had the Claim Form been received I would have defended the Claim. However, as it was not received I cannot defend a claim I know nothing about. I believe that the claim originated from the County Court Business Centre in Northampton which is not my home Court. May be it possible for the claim to be transferred to Stoke-on-Trent Combined Court?

3. Before you get into how the agreement was formed and what not, you need to set out specifically that their claim is denied. So, following paragraph 1, you would then need to state something along the lines of:

2. The Defendant denies that he is liable for the invoice as alleged in the Particulars of Claim or at all.

4. Following that you can then set out the basis of the contract that was agreed. Where you reference dates as to what happened, you should only do so if you are certain. If you cannot remember the exact date that something happened you should instead say "on or about [date] ..." or "in or around [month] ..." so for example, you would say "in or around February 2016, I attended the Claimant's ("Cottams") offices for an initial consultation in respect of a personal injury claim. The attending solicitor was [name] who was a [associate, senior associate, partner] of the firm."

5. You've said that Cottams charges £90 for unlimited discussions / advice but you paid a further £90 at a later date - why was this if discussions were unlimited for £90 and who told you they were £90 for unlimited discussions? Or were you under the impression that each consultation would be a fixed rate of £90 at a time? What was the fixed fee amount (see next point below)?


6. You should be more specific as to what was agreed. For example, following the above suggested wording, you might want to say something like "Following the consultation, the Defendant and [Mr. Cottam] verbally agreed the following terms: (a) a fixed fee of £[amount] to obtain a medical report

(b) [a fixed sum of £90 for each consultation that the Defendant had with Cottams]

(c) any other relevant terms"

7. You are not allowed to insert your own opinions into the defence (see below quote).

It sounds too good to be true

8. You would be wise be more specific as to the contract that was sent to you which you refused to sign. Suggested wording could be "By an email dated [date] Mr Cottam sought to introduce new terms of the agreement and requested that the Defendant sign the attached agreement and letter of which Cottams were now seeking an hourly rate of £201 per hour. The Defendant did not accept the revised proposals and will rely on an email dated [date] which makes explicitly clear that the new terms of the agreement were not accepted."

9. I would suggest you remove paras. 32-36 of your defence. I would simply substitute all of that for one paragraph saying something like " By reason of the matters set out above, the Defendant denies that the Claimant is entitled to the relief claimed in the Particulars of Claim or any relief and the Court is respectfully invited to dismiss the claim."

10. The remainder of the defence reads like a witness statement, so you should not try to confuse the two. The purpose of the Defence is to set out clearly and concisely why the claim is denied. The majority of the history and background can be kept to the Witness Statement which would be required at a later date if the court sets aside the claim.

There's alot more I could say on this but i'm running out of time and have things to do. I don't think it is in a good enough standard yet but if you want to get it sent off today it is up to you, but you might be better off sending it first thing Monday so you have the weekend to tweak and revise both the defence and your witness statement (if necessary). You definitely need to cut out quite a bit of the Defence and reserve it for the witness statement.

What your defence should ideally contain is the following:

1. a brief background as to how the agreement come about e.g. as I suggest above you went to their offices, it was verbally agreed that Cottams would do XY in return for Z.

2. The crux of the argument is whether the agreement was entered into, soyou are right to mention that the agreement was neither signed nor accepted and refer to the relevant email.

3. You could make an alternative argument that even if there was deemed to be an agreement (which you deny) you had no reasonable opportunity to review the invoices as to whether the charges were fair and reasonable.

You mentioned in your draft defence that you lost your emails, if that is the case then Cottams should have copies of this. You might be wise making a subject access request for them to hand over any personal data they hold on you, including any email correspondence between you and Mr Cottam. That should then provide you with the necessary email correspondence you have to strengthen your defence. I would caution however against you making specific mention to any emails or the contents of the emails because if you do (and I am not saying Mr Cottam would do this) then they may just avoid disclosing that email or suggest that the email does not exist but that's my view.

Anyway that's all I have for now, I am sure you could use the above to make any necessary amendments.

[thonvh2017]

Re: Need help to apply for CCJ to be set aside

Dear R0b,

Thank you so much for your help.

I will correct all things you advised above. Does that document need to be marked with an initial XX1 you mentioned in my witness statement.

No, I wont send it today; I will do it carefully and may post my final draft here for your comments.

God bless you & your team.

Cheers
Thon

[thonvh2017]

Re: Need help to apply for CCJ to be set aside

Dear R0b and your team,

I will keep you updated with my above case ccj shortly and post both witness statement and defence statement which have been drafted mainly by you.

Cheers
Thon

[thonvh2017]

Re: Need help to apply for CCJ to be set aside

Dear R0b,

Please find the following documents I have submitted to the CCMCC court:

A. N244 form

B. Witness Statement:

On behalf of: Defendant
Witness: DEFENDANT’S NAME
No. of Witness Statement: First
Exhibit: TH1
Date: ########

IN THE CCMCC COURT	CLAIM NO: #########
B E T W E E N

	COTTAMS SOLICITORS
		Claimant
	-and-
	DEFENDANT’S NAME
		Defendant

	WITNESS STATEMENT OF DEFENDANT’S NAME

I, Defendant’s Name of Defendant’s Postal Address will state as follows:

1. I am a Website Designer (self-employed) and I make this Witness Statement in support of an application to set aside the default judgment (“CCJ”) entered on 15/02/2017 in favour of the Claimant (“Cottams Solicitors”).

1. The facts and matters set out in this statement are within my own knowledge unless otherwise stated, and I believe them to be true. Where I refer to information supplied by others, the source of the information is identified; the facts and matters derived from other sources are true to the best of my knowledge and belief.

1. There is now produced and shown to me a paginated bundle of true copy documents marked "TH1". All references to documents in this statement are to Exhibit TH1 unless otherwise stated.

INTRODUCTION

1. I wish to apply for the judgment in default entered on 15/02/2017 against the Defendant to be set aside on the basis that pursuant to CPR 13.3(1)(a) and CPR 13.3(1)(a):

(i) the Defendant has a real prospect of successfully defending the claim brought against it; and

(ii) there is some other good reason why the CCJ should be set aside.

BACKGROUND

1. I first became aware of the CCJ on 28/09/2017 when I logged into a free credit rating website at www.noddle.co.uk to which I had not been for months.

1. I was completely unaware that Cottams Solicitors had issued proceedings against me in relation, I believe, to a dispute with a legal fee. I did not receive the claim form or any correspondence from Cottams Solicitors referring to their claim.

1. As soon as I became aware of the judgment, I acted promptly by phoning the Court on 03/10/2017 to inform it that I would like to apply for the CCJ to be set aside; and on 04/10/2017 I called the court to request the claim form N1, judgment against me and all other relevant documents so that I could file an appropriate defence against the claim.

DRAFT DEFENCE

1. I believe that I have a real prospect of success in defending this claim and as can be seen from the draft defence which is attached to the application notice that this statement supports.

THERE IS SOME OTHER GOOD REASON

1. The address 351 Halesowen Road, Cradley Heath, B64 6PH (“351 Halesowen Road”) is stated on the claim form but this is not my current place of residence. I lived at this property from 21/05/2016 until 25/11/2016. Following my home move, I updated all records to reflect my change of address which included: notifying my local council and updating the electoral roll, the DVLA and all credit reference agencies.

1. It is assumed that several letters would have been to my address prior to the issue of proceedings, and it is therefore reasonable to suggest that given my lack of response to those letters, Cottams Solicitors ought to have taken reasonable steps in ascertaining my last known address pursuant to rule 6.9 of the CPR. If Cottams Solicitors had done this, then it would have realised that I no longer resided at 351 Halesowen Road. For these reasons, I believe that Cottams Solicitors failed to take reasonable steps to locate my current whereabouts and accordingly, the claim form was not validly served.

1. Alternative to the above and as already stated in paragraph [6], I received no notice of the claim form and which I was afforded no opportunity to defend the allegations made against me. Dyson LJ acknowledged this in Estate Acquisition and Development Ltd v Wiltshire [2006] EWCA Civ 533 where he observed that:

"A person is under no obligation to make himself amenable to potential claims of which he has no notice. It must follow that, if he fails to attend a hearing in proceedings of which he is unaware, he has a good reason for failing to attend."

1. Furthermore, had I become aware of the claim, it was more likely than not that I would have defended the claim and/or settled the debt, but I was not given this chance. I refer to the Court of Appeal case Godwin v Swindon Borough Council [2001] EWCA Civ 1478 where LJ May said the following:

“Rule 13.3(1)(b) has a disjunctive alternative, so that the court may set aside or vary judgment entered in default if it appears to the court that there is some other good reason why the judgment should be set aside or varied or the defendant should be allowed to defend the claim. In my view, this is plainly capable of extending to circumstances where the defendant has not received the claim form and particulars of claim before judgment was entered against him. It is not an absolute right, but does not have to depend on the defendant having a real prospect of successfully defending the claim. The court therefore has sufficient power to do justice in these cases and will, no doubt, normally exercise this discretion in favour of a defendant who establishes that he had no knowledge of the claim before judgment in default was entered unless it is pointless to do so. The defendant, for instance, may have no defence to the claim, but may justifiably want to have the judgment set aside on the basis that, had he known about the claim, he would have satisfied it immediately without having an embarrassing judgment recorded against him.

1. In summary, I have acted promptly when I found out about the judgment. I have explained why I did not respond to the claim issued and I believe that service of the claim form was invalidly served. Furthermore, I also have a reasonable prospect of successfully defending the claim as set out in the draft defence. The prejudice that I would suffer by not being allowed to defend this claim greatly exceeds the prejudice to Cottams Solicitors if the judgment is set aside. For these reasons, I respectfully ask the Court to set aside the judgment under CPR Part 13.

I believe that the facts in this witness statement are true.

Signed: _____________________________
Dated: _______________________________
DEFENDANT’S NAME
DEFENDANT


C. Defence statement:

CCMCC CLAIM No. #####
BETWEEN

	COTTAMS SOLICITORS
		Claimant
	-and-
	DEFENDANT’S NAME
		Defendant

__________________________________________________ ___________________
DEFENCE STATEMENT
__________________________________________________ ___________________

1. In this Defence:
   1. Except as expressly admitted, the Defendant requires the Claimant (“Cottams Solicitors”) to prove its claims; and
   2. Entirely without prejudice to that requirement and except as expressly admitted, The Defendant denies each and every allegation in the Particulars of Claim.
   
   
2. The Defendant denies that he is liable for the invoice as alleged in the Particulars of Claim or at all.

The Agreement

1. The Defendant confirms that he has never entered into any agreement with Cottams Solicitors to pay their legal fees per hour.
2. On 09/02/2016 the Defendant attended Cottams Solicitors’ offices for an initial consultation in respect of a personal injury claim. The attending solicitor was Mr Harry Cottam (“Mr Cottam”) who was the main solicitor of the firm. Cottams Solicitors charged a fee of £90 for unlimited discussions/advice for each consultation which was mentioned to the Defendant when he phoned Cottams Solicitors at around the beginning of February 2016.
3. During the above consultation, Mr Cottam verbally agreed the following terms:
   1. A fixed legal fee of £600 including VAT for the draft of the particulars of claim and general legal advice;
   2. A fee of £500 including VAT for instructing a plastic surgeon to produce a medical report for the Defendant’s personal injury case.
   
   
4. On 22/03/2016 the Defendant had another meeting with Mr Cottam in his office after the Defendant received stamped claim forms from the court. The Defendant believes the meeting last less than 15 minutes, but the Defendant was required to pay another fee of £90 before he left Cottams Solicitors’ offices.

Legal Fee’s Disputes

1. On 11/04/2016 the Defendant had the third meeting with Mr Cottam in his office. The Defendant was required to pay a fee of £600 as a deposit so that Cottams Solicitors could start working on his case. The Defendant paid that amount of £600 using Cottams Solicitors’ payment machine before he left their offices.
2. After the above payment, Cottams Solicitors did not provide a written agreement that they would charge a fixed legal fee as agreed during the Defendant’s initial meeting despite the Defendant’s repeated requests.
3. However, on 29/04/2016 Cottams Solicitors sent the Defendant an email in which they sought to introduce new terms of the agreement and requested that the Defendant sign the attached agreement and letter of which Cottams Solicitors were seeking an hourly rate of £201 per hour. The Defendant did not accept the revised proposals and would rely on his email sent to Cottams Solicitors on 03/05/2016 which made explicitly clear that the new terms of the agreement were not accepted.
4. The disputes with the legal fee were going on.
5. The Defendant believes at around the end of August 2016, Cottams Solicitors emailed the Defendant the attachments of the particulars of claim and a medical report from the plastic surgeon. In that email Cottams Solicitors required the Defendant to pay a much higher legal fee than what the Defendant agreed with Mr Cottam which was only £500 including VAT on top of £600 the Defendant had already paid.
6. However, the particulars of claim provided by Cottams Solicitors contained no legal arguments or legislations compared to what the Defendant found on the Internet; it was similar to a normal letter.
7. Because of the above, on 07/09/2016 the Defendant decided to instruct a Public Access Barrister who later also found out that the medical report provided by Cottams Solicitors was not signed by a plastic surgeon. The Barrister’s fee was £600 including VAT for a draft of the particulars of claim and general legal advice.
8. On 15/03/2017 the Defendant instructed a Surgeon to produce a medical report on his personal injury so that his personal injury claim stayed valid. The surgeon’s fee was only £250 including VAT.
9. By reason of the matters set out above, the Defendant denies that the Claimant is entitled to the relief claimed in the Particulars of Claim or any relief and the Court is respectfully invited to dismiss the claim.

STATEMENT OF TRUTH
The Defendant believes that the facts stated in this statement are true.
Signed: _____________________________
Dated: _______________________________
DEFENDANT’S NAME
DEFENDANT


I have also received a letter from CCMCC which transferred my case to Dudley County Court. I spoke to CCMCC today which advised that Dudley court will send a letter to me and Claimant if they need to arrange a hearing; alternatively, the court may set CCJ aside without a hearing.

I ll keep you updated of my case.

Many thanks again for your support.

Regards
Thon

[thonvh2017]

Hi R0b,

I got a letter from the Dudley court ordering a hearing for 11 April 2018. I attached it for your information.

[R0b]

Thanks for the update.

So really the next steps are to prepare for your hearing, it might seem a while away but it will come around before you know it. The sooner you prepare the better and you will be in a good position to anticipate any questions thrown at you by the judge.

Out of curiosity, have Cottams been in touch with you or are you aware that they are resisting your application to set the CCJ aside?

You might want to read the link below to give you a refresher on set aside applications, also note the points towards the end about claiming costs, particularly your application fees if you are successful.

http://legalbeagles.info/forums/foru...tailed-version

[thonvh2017]

Hi R0b,

Thank you for your prompt reply.

No. Cottams Solicitors has not been in touch with me; I think they knew their claim is bogus!

I have emailed you privately. Have you received it?

Keep in touch, I love your guys here who can help small people to beat the system!

Cheers
Thon

[thonvh2017]

Hi R0b,

I got a response from the Claimant by email today shown below, but not sure they want to have a different hearing from that of the court's order?


What should I do with this respoonse?

Do I need to write a witness statement and submit to the court?

I very appreciate your help.

Regards
Thon



Dear DEFENDANT’S NAME,

I am in receipt of a notice of hearing of your application together with copy of your application of 6^th November 2017 and attached witness statement.

It is my view your application would succeed for the following reasons:

1. Although there is no corroborative evidence of your having moved address on the 25^th November 2016 on balance the court will probably accept your contention that you have moved address at that date.
2. The reasoning of Lord Justice May in Godwin -v- Swindon Borough Council 2001 EWCACIV1478 that there is some other good reason why the judgment should be set aside on the basis that you had not received the claim form and particulars of claim (if it is accepted that you had moved address as I believe the court will probably do) prior to judgment being entered, you would not need to show that you had a reasonable prospect of success for you defending the case in these circumstances.
3. I believe that on balance it would be accepted by the court that your delay of 6 weeks before making your application as would appear to have been the case would not constitute lack of promptness on your part. Although there is no evidence of the date when you filed your application it is dated 6^th November 2017 (I assume this is the date you did file it) It is not evidence of lack of promptness on your part and I believe only a delay of 2 months would ordinarily lead to court concluding there was lack of promptness.

In the above circumstances I consent to judgment being set aside and therefore there is no need to have the hearing on 11^th April 2018 and I have notified the court accordingly and asked the court to forward this email to a District Judge for further directions to be made leading to a small claim hearing.

I suggest you write in similar vein to the court asking for the hearing to be vacated and for directions to be made with a view to a small claim hearing being held in due course with the usual directions for a small claim set of proceedings.

I suggest the directions should be as follows:

1. That you be excused the need to file and serve a defence, the defence being deemed to have been filed and served with accordance with the draft submitted.
2. The claim be allocated to the small claims track.
3. That requirement for the parties to file Directions Questionnaire be waived.
4. That both parties be required to file and serve any copies of documents upon which they intend to rely no later than 2 weeks prior to the hearing of the small claim.
5. That the parties file and serve witness statements there being one witness each in these proceedings. Such statements are to be served on a mutual basis and filed no later than 2 weeks prior to the date of the small claims hearing.
6. That the small claims hearing should take place in the period between 1^st May 2018 and 1^st July 2018 with a time estimate of 3 hours.

Please let me know whether you agree those directions or alternatively if you don’t please advise the court of what alternative directions you would like and let me have a copy of any letters sent to the court.

Yours sincerely

H F COTTAM

Director
Cottams Solicitors Limited
1102 Straford Road
Hall Green
Birmingham
B28 8AD
Tel: 0121 777 0210
Fax: 0121 777 7471
Regulated by the Solicitors Regulation Authority