Back to previous
Newer version available

There is a newer version of this publication available:
Debt Advice Handbook 14th edition

3. Taking court action
The person or organisation bringing court action is called the ‘claimant’. The person or organisation against whom court action is brought is called the ‘defendant’.
Most forms used in court proceedings are prescribed and can be identified by their number and title in the bottom left-hand corner. It is important that debt advisers familiarise themselves with these. The forms advisers most commonly encounter are available at gov.uk/government/collections/court-and-tribunal-forms.
Types of claim
Court action may involve the following.
    Money-only claims – eg, for repayment of an amount due under a loan, overdraft or credit card agreement. See Chapter 11 for more information.
    Claims relating to agreements regulated by the Consumer Credit Act that are not for money only – eg, for possession of goods supplied under a hire purchase agreement. See Chapter 12 for more information.
    Claims relating to land – eg, for possession of a house by a mortgage lender or landlord. See Chapter 12 for more information.
    All other claims – eg, a claim for the return of goods supplied under an agreement not regulated by the Consumer Credit Act. These differ from money-only claims in that, if the client does not respond to the claim, the creditor must make a formal application to the court for judgment and submit supporting evidence. You should obtain specialist help if you come across these claims.
Applications: Form N244
Applications are usually made on Form N244 – eg, an application to set aside a judgment or to stay (ie, put a hold on) execution of a High Court writ of control or to stay enforcement of a judgment debt.1CPR PD 23 Guidance notes to help complete the form are in leaflet N244 (available here). The court fee on an application made on Form N244 is usually but not invariably £275 for court fee 2.4(a), which is payable ‘on an application on notice where no other fee is specified’. A commonly found example of another fee being specified is court fee 2.7, which is ‘payable on an application to vary a judgment or suspend enforcement’, which is currently £14 and that would apply to the applications for a stay referred to above. See here for details of how to apply for a full or partial remission of the fee.
An application can also be made verbally at a hearing that has already been fixed and can be made without using Form N244, but the creditor and the court should be informed (if possible in writing) as soon as possible.2CPR PD 23, paras 2.10 and 3(5)
The various sections of Form N244 should be completed as follows.
    Header. The court name is likely to be ‘In the County Court Business Centre’, but otherwise will be the name of the court which last contacted the client – eg, ‘In the county court at Northampton’. ‘Fee account’ is a fee payment system available for businesses who regularly use the courts. The ‘Help with fees - Ref no.’ box should be completed with the reference number provided by the court if the client has successfully applied online for full or partial remission of the court fee (see here).
    Section 1 should be completed with details of the client’s name, unless s/he has a legal representative (eg, a solicitor) acting for her/him.
    Section 2 should usually indicate that the client is the defendant (unless s/he has a legal representative acting for her/him or, exceptionally, if s/he is the claimant).
    Section 3 asks what order the client is seeking and why. This information must be supplied.3r23.6 CPR The following are suggested wordings for some common applications.
      Redetermination/reconsideration: ’The judgment be paid by instalments of £x per month because I cannot afford to pay at the rate determined.’
      Variation: ’Payment of the judgment debt be varied to £x per month because my circumstances have changed and I can no longer afford to pay at the rate ordered.’
      Suspension: ’Payment of the judgment debt be suspended under s71(2) of the County Courts Act 1984 on the ground that I am no longer able to pay it because…’
      Stay of enforcement: ’Any enforcement proceedings against me be stayed until a further order is made (Rule 83.7 of the Civil Procedure Rules).’
      Stay of execution: ‘Execution of the Writ of Control be stayed under Rule 83.7(4)(b) of the Civil Procedure Rules so long as I pay the judgment debt and costs by instalments of £x per month because I am unable to pay the amount due in a lump sum’.
    Section 4 asks whether a draft of the order being applied for has been attached. This is not usually required unless the application is being made by consent.
    Sections 5 and 6 ask for information about the application. The client must indicate whether or not s/he wants the court to deal with the application at a hearing or at a telephone hearing. If a hearing is requested, the court fixes a time and date, and notifies the parties at the same time as it serves Form N244. You should use your experience to estimate hearing times, but can just leave the box(es) blank. If no hearing is requested, the application is referred to a district judge to decide whether it is suitable for consideration without a hearing. If no hearing is requested, the district judge may disagree and order a hearing anyway and the other party can apply to set aside or vary any order made without a hearing.4CPR PD 23, para 2.4 You should only ask the court to deal with an application without a hearing if it will not automatically be transferred to the client’s local court, and should also ask the court to use its discretion to transfer the case to the client’s local court if it decides that a hearing should take place.5Quoting r30.2(1) CPR
If it is not possible (or it will be extremely difficult) for the client to attend a hearing in person, s/he can ask the court to arrange a telephone hearing on Form N244. If it is the creditor’s or lender’s application, the client can request a telephone hearing in writing.6CPR PD 23A, para 6
    Section 7 should contain details of any hearing date already allocated for the case.
    Section 8 should usually specify a district judge for the hearing.
    Section 9 should usually specify the other party/ies as the persons to be served with the application.
    Section 9a asks for the address of any party named in the response to the previous section who is not the claimant or defendant.
    Section 10 should indicate whether the client is relying on a separate witness statement, her/his statement of the case or the evidence set out in the box on Form N244 in support of her/his application. The amount of text that can be fitted into the box is limited to 840 characters and so, in many cases, a separate witness statement may be needed. Evidence is required in certain cases (eg, set-aside applications) and the court can ask for evidence in support of an application. The client will not usually have served a defence and so any facts that s/he wants the court to consider should be set out in the box and any written evidence referred to and attached – eg, a financial statement. The client should sign the statement of truth at the foot of the box.7Since 06/04/20, the following wording must be added to a statement of truth: ‘I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth’. CPR 22 PD There is no need for a financial statement to contain a statement of truth.
    Section 11 reflects the additional wording required in a statement of truth since 6 April 2020, acknowledging that the maker understands that contempt of court proceedings may be taken against anyone who makes a false statement in a document verified by a statement of truth without an honest belief in its truth. You should point this out to the client and the form should then be signed and dated, and the details of the client’s address completed.
 
1     CPR PD 23 »
2     CPR PD 23, paras 2.10 and 3(5) »
3     r23.6 CPR »
4     CPR PD 23, para 2.4 »
5     Quoting r30.2(1) CPR »
6     CPR PD 23A, para 6 »
7     Since 06/04/20, the following wording must be added to a statement of truth: ‘I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth’. CPR 22 PD »
Clients with mental health problems
A client who ’lacks capacity’ for the purposes of the Mental Capacity Act 2005 (see here) is a ’protected party’ in any county court proceedings and can only take part in them through another person, known as a ’litigation friend’.
A creditor can issue a claim and it can be served on a client who is a protected party even if s/he does not have a litigation friend, but any further steps taken before a litigation friend has been appointed (eg, entering default judgment (see here) or taking enforcement action – see here) is of no effect unless the court subsequently ratifies it.1r21.3(4) CPR. See also C Bradley, ‘The MCA 2005 and Litigation Issues’, Adviser 127
 
1     r21.3(4) CPR. See also C Bradley, ‘The MCA 2005 and Litigation Issues’, Adviser 127 »