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1. At the outset, a payment wrongly paid under a mistake of law or fact, such as a mistake that you are working for them, will always be recoverable by the person or the financial institution which mistakenly made the payment. There is no defence to such an action if you have received the money. This means that it would be impossible to defend the proceedings on the basis you didn't know about it, or the bank didn't properly inform you before they got judgment against you. Additionally, as you owe the money, a court will not grant you leave to defend an action where judgment has already been granted in relation to the mistaken payment. This is because in order to get leave to defend the legal proceedings now, you will have to show good grounds for a defence. Good grounds for a defence would be if you gave the extra money to charity or otherwise altered your position to your detriment in reliance on the mistaken payment. However, as things stand, you have not suggested anything of this nature. So as things stand, you do not have valid grounds for a defence.
2. Your options now are either to pay the money and forget about it. Or else, apply for a set aside application and move to defend the proceedings. If you have grounds for defence, you may or may not have to lodge the monies in court. However, there is no need to pay the amount now at the Court if you intend to apply to set aside the judgment. You should instead move quickly to set aside the judgment and contest the proceedings on some good grounds for defence such as change of position. In such a case you will have good grounds to set aside the judgment and defend the proceedings.
Thanks. Could you please explain what do you mean by phrases "defence such as change of position" and "altered your position to your detriment in reliance on the mistaken payment". I would like to understand how should I write these points on the set aside application form in plain english.
3. A defence of change of position is where something has occurred which has altered the situation and changes the fact you should have to repay the monies. The second altering your position means that you have acted on the basis you received the payments
Thanks. I discuss this case with another solicitor who advised that another option is to ask claimant for consent order and pay the money. Then apply to the court to remove ccj on behalf of a consent order. Do you think this is a viable option?
4. This approach is only really operable if you have the cooperation and consent of the judgment creditor as it effectively involves them weakening their position. It is another approach and has much to recommend. Ultimately what you do depends upon what outcome you wish to have. This second approach obviously involves full payment and a level of cooperation from the employer.