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Response to Effect of CCJ set aside on 6 years limit

from Guy Skipwith (guy@skipwith107.freeserve.co.uk)
I am afraid that I do not agree with what David has said.

If a claim was issued within the limitation period and a judgment entered which is then set aside, it is correct to say that the parties are put back in the position as if no judgment was entered. But this does not strike out the claim. The claim still exists and as it was (originally) issued within the limitation period, there is no limitation defence. If a judgment is set aside it is not necessary for a new claim to be issued. The case proceeds on the origanal claim.

If a claim is struck out it is an entirely different matter. A new claim would have to be issued and it would be statute barred if this is more than 6 years since the last acknowledgment or payment (see Tupper v Hopkinson and cases cited there).

Re set asides - if a judgment was entered in default, it can be set aside if there is a reasonable chance of successfully defending the claim and the defendant acted promptly, e.g. soon after s/he became aware of the judgment (See CPR part 13 PART 13). In practice, the judgment should be set aside if it would be a miscarriage of justice not to do so. There is lots of case law to support this view and it is in line with the 'Overriding Objective' (CPR 1) of dealing with cases justly. There have been lots of possession orders set aside many years after they were made when it was discovered subsequently that the secured CCA agreement upon which they were based was unenforceable, so I don't think that a delay of four years would necessarily be fatal.

But, in any event, I think that a set aside in this case is academic for the reasons that I have seen above.

All the best

Guy

(posted 7122 days ago)

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