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Buachaill
Buachaill, Barrister
Category: Law
Satisfied Customers: 10176
Experience:  Barrister 17 years experience
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Hi, I was selected for a job with a UK bank in early 2013;

Customer Question

Hi, I was selected for a job with a UK bank in early 2013; however, I didn't join it. Instead, I joined another organisation. Irrespective of that partial salary was paid into my current account in June 13. In the same month I received dues from past employer and I overlooked it. I also have credit card account with the same bank. The bank supposedly sends letters asking me to return the wrongly paid salaried amount after Jun 13. As I moved out of rented property in Feb 2013, all communication sent to old address and subsequently without me knowing anything about it bank's solicitors got a CCJ on 1 April 2014. Again, communication from the court was sent to the old address and I missed all deadlines to respond. Now on 7th Oct, somehow the debt collectors found my new address and sent me a letter asking for money. On calling them they sent on 14th Oct copy of old letters and copy of CCJ letter with Court Stamp issues on April 1 2014.
My question is should I make set aside application at the court? My reasons are
1) I was wrongly paid money in my account at first instance.
2) All communication sent to wrong address when the bank could find my correct address as I updated address on my credit card account with them.
3) Last but more importantly, I wasn't given any chance to defend or pay back the amount mistakenly paid to me at first instance.
The actual amount was £1030 which is now around £1400.
My another question is should I pay all the amount due now and get Certificate of Satisfaction from the court and then apply for set aside application?
Thanks
MM
Submitted: 2 years ago.
Category: Law
Expert:  Buachaill replied 2 years ago.
Customer:

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.

Customer:

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.

JACUSTOMER-65ml7tuk- :

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.

Customer:

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

JACUSTOMER-65ml7tuk- :

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?

Customer:

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.

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