N244 Application Notice Q10 Evidence

[pinede12]

Any advice would be greatly appreciated

Set a judgement aside because:

• I would like to put in a defence as I did not have the opportunity to do this.
• I believe the process has not been correctly followed. The wrong address was supplied to the court and therefore I was unaware of the claim against me which resulted in the default judgement to occur.
• The court was provided with the postal address of my elderly grandmother who has Alzheimer’s. The letter was returned to sender without my knowledge.
• The email address the claimant provided the court was an e mail address I had set up especially to remarket the room back in May 2020. When the claimant refused to accept new tenants that I found for her, I ceased to use that e mail address.
• I missed the hearing as I did not receive any correspondence from the court. I would have challenged the claim had I received the paperwork.
• I lost my job during the COVID lockdown and therefore was unable to find another position nor pay rent. The global crisis and the impact on businesses also made it difficult to find employment. I therefore notified the agency of my urgent situation who then contacted the landlord.
• I have evidence of the landlord/agency agreeing for the rent to be reduced by exactly my share (625 pcm) and from the date I vacated the property (04 May 2020) which clearly indicates, as the agent stated in their email to myself and the remaining tenants, that it was to relieve me of my payments.
• The remaining tenants did not incur an increase in rent due to the discontinuation of my payments towards the rent. They continued to pay the same rent.
• I did not pay the rental payments from 01 May as I understood I was relieved of this due to my circumstances and the kindness of the landlord who reduced the rent by exactly my share. I found the claimant’s threats to be unreasonable and an abuse of the landlord’s goodwill.
• The claimant nor the other tenant had any losses as they continued to pay the same rent that they had agreed to pay at the start of the tenancy agreement. The claimant clearly wants to take financial advantage of the landlord’s goodwill.
• I never received a letter/email on the 01st June 2020, as stated by the claimant in her claim, asking me to provide evidence that the rent reduction relieved me of my obligations to pay.
• The claimant in her claim form doesn’t mention the email from the agent stating “the remaining tenants will pay the amount outstanding and are happy to cover the new monthly rent themselves…”
• The claimant had moved her boyfriend in to the property without consent of the agency or the landlord before I moved in and which I had never agreed to. I therefore felt the agreement was broken, particularly as the HMO was for only 3 tenants. As we were legally obliged to remain in lockdown during this period I was told by the claimant that he would be occupying the property until the end of lockdown.
• The property was advertised as a three people share but the whole time I was there this was not provided in practice therefore the contract was being breached and I didn’t agree to this.
• I felt unsafe and worried for my health as the claimant and her partner were visiting other family members during the COVID lockdown, breaking the lockdown rules.
• The claimant in her claim form doesn’t mention about her live-in boyfriend who was occupying the property and a significant share of my living space.

TIMELINE
12 March – I signed contract to share the property with two other females. The total rent of the tenancy agreement that I signed for was £2,000. Being £625 pcm for (CLAIMANT), £750 pcm for (TENANT 3) and £625 pcm for myself.
23 March – I moved into the property to find that the claimant’s boyfriend was also occupying the property, he was NOT on the tenancy agreement, nor did he contribute to the rent. I have photographic evidence to prove this.
I had signed the tenancy agreement believing I would be sharing with two females. I did NOT at any time agree to share my living space, bathroom and kitchen with a male. I was also surprised when I moved into the property to see the claimant’s boyfriend had set up his office space in the living room. I, consequently, had to work from the kitchen which made it difficult for me to work. They slept together in the room directly above mine making disturbing noises until late.
The claimant and her boyfriend did not respect the social distancing laws and often met with family. I have evidence to prove this. I became extremely anxious for my health and unable to sleep nor concentrate on my work.
30 April - I lost my employment.
04 May - I left the property and notified the agency of the situation, having had to share with the claimant's boyfriend not on the agreement and having lost my employment.
The agent understood my situation and asked the landlord if he could reduce the rent by my share.
04 May – 21 May I did not communicate with the remaining tenants after I left the property as I was homeless and had limited access to internet. I contacted the agents and trusted they would contact the remaining tenants to advise of the situation.
20 May – Agent advised myself and remaining tenants that in order to ensure the remaining tenants were not made homeless nor would they be out of pocket, the landlord had kindly reduced the rent by my share of 625 and had backdated it to the 01 May so the remaining tenants on the agreement could continue paying the same rent they had signed for on the contract.
The rent was reduced by a specific amount (my share) from a specific date (the date I lost my employment)
20 May - I relied on what I had been told by the agent that the remaining tenants were happy with the new agreement and happy to cover the new monthly rent themselves and so I found accommodation elsewhere.
20 May - The agency stated that if I were to find a replacement tenant I would be able to end the tenancy earlier.
17 June – I advised the agent that I had found two prospective tenants from adverts I had placed.
19 June - I received an email from the claimant claiming that:

• the rent had not been reduced to relieve me of my obligations to pay my share of the rent and demanded I pay a third of the new reduced rent.
• they had been forced into paying my share of the Council tax for May, June, July and August.

19 June – I called Oxford County Council and I was told that I had not been registered to pay Council tax, despite the other tenant telling me she had registered me. I therefore thought the claimant was just being unreasonable as the issue had been resolved one month previously and neither her nor the other remaining tenant had had an increase in their rental payments nor Council tax.
08 July - The claimant rejected the two prospective tenants that I had put forward on the 17th June saying they were not comfortable with another person moving in due to the coronavirus risk.
23 August – I received an email from the claimant saying that she had filed a claim against me.
06 January – I received an email from the claimant with an attachment of the county court judgement. My grandmother’s address had been supplied to the court and, consequently, I had not been informed of the date of the hearing, which allowed the default judgement to occur.

[jpkeates]

You're massively overthinking this.

You should have asked for the judgement to be set aside on the basis that you didn't receive any of the paperwork because the claimant used the wrong address.

All of the rest of the information is only relevant if the court agrees and allows your case to be reheard.

And, being fair, you were given that advice a while ago when you posted the same query under a different user name.

[hybrice]

Agreed, a N244 is a one-line application with a small box for expansion. IF the court agrees to hear your case then you can submit a Witness Statement.

Literally:
"What order are you asking the Court to make"
"I am asking the Court to set aside the Order dated X of Y 2021, as the Claimant did not comply with CPR 6.9(2) by serving the documents at an address I am not registered to, meaning I had no knowledge of the claim"

Feel free to expand upon that in the evidence section, but it really isn't necessary.

Please bear this in mind (I mean it), this will not end things - your case will be re-heard and if you have defended it, and the Court chooses to uphold the order against you then you could personally be on the hook for the costs involved with re-litigating it. I have seen these extend into the tens of thousands and bankrupt people, proceed with extreme care and see a solicitor.

If you do intend on applying to set aside, you had better get your application in sharpish - after 28 days it's unlikely they'd agree to hear it.

[pinede12]

jpkeates,

Thank you for your reply. My mum posted in the previous threads as she was really worried about me having a CCJ and going to court.
I'll take your advice on board and re structure the evidence letter.

I was informed by National Debt Line that I would be able to add the evidence in the application notice and should they require further evidence I would have time to submit it then.
Many thanks

[bethy]

I would agree with the other posters - the reasons to have a judgement set aside are clearly defined so focus only on the correspondence address issues at this stage as this is a procedural thing for now. If they agree to that then it goes back to the previous step and you'd have a chance to put together a defence.

I had a situation where I was the claimant and a default judgement was issued. The other side applied to have it set aside but included every possible argument going on the set aside document and it was a confused mess, and also showed me every argument they thought they could structure on the topic. It didn't go well approaching it like that!

[Interlaken]

Surely if you can post that lot on here you can defend it yourself in a simpler format.

[hybrice]

Thank you for your reply. My mum posted in the previous threads as she was really worried about me having a CCJ and going to court.
I'll take your advice on board and re structure the evidence letter.

I was informed by National Debt Line that I would be able to add the evidence in the application notice and should they require further evidence I would have time to submit it then.
Many thanks

This is a procedural defect, you don't argue your defense here - you make the application, hopefuly a Judge will order the last judgment "set aside" (cancelled) then it'll go back to a hearing, THAT'S when you make your defense, not in the N244.

Make the application, if they set it for hearing then file your evidence in the form of a Witness Statement along with an N11 defence form, I'll link a guide on how to format those below. Send a copy to the Court and one to the Claimant ahead of the hearing (post it in person at a Post Office and get a certificate of posting for both).

Then a few days before the hearing call the Court and ensure they got the copy and added it to the bundle for the Judge.

But all that evidence is wasted if they decline a hearing. There is a rule that you must apply to set aside within 28 days, or "without delay", as you were made aware of it via the email from your landlord at the start of the month (which they can/probably will submit as evidence) then you need to get that application in asap, or you'll likely be declined and the judgement will stand.

Witness statements:
https://www.justice.gov.uk/courts/pr...ess-statements

[pinede12]

I've received a general form for judgement or order saying the court deems this matter, an application to set aside the judgement, suitable for determination by way of telephone hearing.
It says that both parties must email the court attaching copies of all documents they intend to rely on or refer to at the New telephone hearing next week and send those documents to the other party.

Does anyone know if this will be the final hearing or is this to set aside the judgement?
Obviously I dont want to the claimant to see all my evidence against her. Or will this be the final hearing.

[bethy]

Hi, I had one of these last year. It shouldn't be a full hearing - the matter being considered is whether or not to set the judgement aside.

However, if they set it aside then it moves back to the previous stage, where there is an opportunity to defend the claim.

So in my experience, part 1 considered the arguments/reasons to set the judgement aside. This is the primary focus and if you have documents that support this side these are important (basically that you followed the right process, right address, etc).

Part 2 then looked briefly at what might happen if the judgement were to be set aside and whether a defence is likely to be successful, so that bit would look to some extent at the arguments, but I wouldn't have thought you'd benefit from sending all your docs.

Thankfully in our case the respondent failed on both counts.

Best of luck - I found it difficult to find out much about the process and that made it more stressful than it ought to have been.

[jpkeates]

Obviously I dont want to the claimant to see all my evidence against her. Or will this be the final hearing.

That's just not how court cases work.
Both sides see the other side's evidence in advance and the court has a record of what's been declared.
Each side is allowed time to respond to or explain the other's evidence.

You're not allowed to surprise the court with new evidence on the day (particularly on a remote session).
Anything you don't submit to the court will either be ignored or cause the hearing to be adjourned to allow the new information to be circulated and for the other side to be able to respond to it.

And, having to take that latter option will really hack the judge off and make your job much tougher.

[pinede12]

jpkeates,

Thank you so much for your reply. I understand I need to suply the evidence before the hearing. However, I was unsure with the order I received for the telephone hearing if it was just to set aside the judgement or in fact the final hearing.

[pinede12]

Thank you very much! I have now submitted the evidence for the set aside hearing next week. Fingers crossed!

[pinede12]

I am seeking advise on court appeals after a denied application to set aside judgement. The reason for setting aside the judgement was because I had no idea that the letter from the court was sent to my grandmother's address being the address that was on the tenancy agreement.
My grandmother, who has Alzheimer's, returned the letter from the court back to sender and never told me. I therefore had no idea about the hearing.


I had a telephone hearing last Friday 19th March, the Judge denied setting aside the judgement saying that:
Physical letters are what the court relies on to contact the defendant and if I (defendant) use my grandmothers address why do I not check the post?

I replied that due to online paperless options all my post is online so have no reason to go to my grandmothers to check the post.


The Judge also claimed that my grandmother's Alzheimer's clearly did not impact her state of mind when she returned to sender the court letters as he said "she was capable of identifying the person on the letter (me) writing return to sender and walking to the post office to send the letter".


The judge denied my appeal and gave the option to appeal to the courts.


Would I need to complete a 206 applying for permission to appeal to the court of appeal or the N164 appellants notice small claims?

[hybrice]

I wouldn't bother, you have practically no chance of winning this. The Court of appeals are not there because you don't like the outcome, they're there to review if the law was followed and are VERY reluctant to fetter a Judge in their decision-making. In this case it seems the law was followed, the address you yourself provided on the tenancy agreement was the one to which they served paperwork.

The law simply requires the "last known address" to be used, which it was. And the fact your grandmother returned to sender the letters is pretty damning to your case.

This will cost you a fortune, you'd need to get the court of appeals to set aside, which the claimant can defend, if you lose - you'd be slapped with costs (could be several thousand). If you're successful and they set it aside, that isn't the end - it goes back to trial and you could still lose, and be slapped with costs. And your case is shaky at best. Pay up and move on, in my opinion.

[jpkeates]

I agree.
I can't see anyone allowing an appeal to go ahead.

You're required by law to give a tenant an address in England or Wales where "notices in proceedings" can be served.
Your argument would have to be that you failed to do what you had, by law, to do - which isn't a great start point.