Gladstones / Euro Car Parks / CCJ / Wrong Address

[Deleted User]

Civil Procedure Rules (CPR) 6.9(3) are your friend. These state:

(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) [i.e. referring to the Defendant's usual or last known address] is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

(4) Where, having taken the reasonable steps required by paragraph (3), the claimant –
(a) ascertains the defendant’s current address, the claim form must be served at that address; or
(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is
(i) an alternative place where; or
(ii) an alternative method by which, service may be effected.


The point is that in 2017, can the Claimant reasonably assume that the Defendant still lives where they did in 2014? In my view that should be NO (but if, for example, they obtained your details only recently from a V5C that you hadn't updated, the converse would be true).

There are few authorities on the point, but Marshall Rankinve v Maggs is helpful (at para 71)
What is the position where the address is one at which the individual to be served has resided at some time? The point does not arise for decision in the present case. But in view of the uncertainty that exists as to the meaning of "last known residence", we think that it may be helpful if we express our view in particular on the interesting suggestion made by Mr Zuckerman. What state of mind in the server is connoted by the words "last known"? In our judgment, Mr Zuckerman's interpretation goes too far. As we have said, there is an important distinction between belief and knowledge. It is a distinction particularly well understood in the criminal law, but elsewhere too. The draftsman of the rules deliberately chose the word "known". In our view, knowledge in this context refers to the serving party's actual knowledge or what might be called his constructive knowledge, ie knowledge which he could have acquired exercising reasonable diligence. We arrive at this conclusion on the basis of what we understand the words to mean. We do not believe that there are any policy reasons which require us to give the words a strained or unusual meaning. The risk of satellite litigation is inherent in whatever interpretation is adopted. It is true that a defendant who has not in fact received the claim form should have no difficulty in setting aside a default judgment. But it is not desirable that defendants should be put to the trouble and expense of making applications to set aside default judgments.

The above has my emphasis in bold. So, given the passage of time, with even the most basic of checks would they have been able to rely on the address they did for service?
Probably not.
Was there a need to serve urgently because of the risk of the time limits expiring
Probably not, given that there is a 6 year limitation

So what you have is a default judgment because the claimant (i) took no due diligence to check that the details that they had on their systems were up to date (ii) had no recent correspondence from you to allow them to assume the address was still current; and (iii) despite having no affirmation that the address was current and ample time to check, they issued proceedings anyway.

That then leads you to CPR 13.2
13.2 The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because–
(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

MUST is imperative. In effect, the judgment should not have been granted because service was not correctly affected. See for example, Tanir v Tanir where the Court had failed to serve the proceedings.
http://www.bailii.org/ew/cases/EWHC/QB/2015/3363.html

[Deleted User]

i'd agree with much of what nosferatu1001 says above, save that I would not say that there is no need to see the Particulars to prepare a defence. It is correct that it will probably take a standard form and a template is likely good enough, but assumptions lead to errors...

In most cases the PoC are endorsed on the claim form. It is a 2 minute enquiry to make of the Court and you should have it available before the hearing to avoid any surprises.

theblackfox

Thank you nosferatu1001 and Johnersh,

@nosferatu1001
1. I have already done my draft order and sent it along with my witness statement when applying for set aside
2. Agreed. That's the approach I went with in my witness statement, that I have not been served correctly and that the default judgment contains no details of the alleged incident.
3. I understand I need to write a draft defence and can use templated information for most of it, but looking for advice on the defense elements of my individual case based on what I have created in my witness statement.

@Johnersh
Thank you for the CPR information, I take it I list this as a reference point of evidence in my draft defense?

I obtained a copy of the judgment from the court (which I included a copy of with my witness statement) which contains no PoC, just the obscure amount requested to pay.

Just to recap in my previous posts I've based my approach on the Saggi case as it felt very similar to my situation, so when submitting the N244 I included only the Witness Statement, Draft Order and Copy of Judgement which was sent to the court, gladstones and kept a copy for myself.

nosferatu1001

That isnt a defence point, but a reason why the set aside must be granted

Defence - why youre not liable for the charge
Set aside - that the jdugment should not have been entered and so should be set to one side, as if it never happened.

[Deleted User]

In my view you should be entitled to a set aside without even needing to consider whether there is a valid defence, for the sole reason that the claimant was never entitled to default judgment to begin with.

If the court doesn't accept that argument, they then consider whether you acted promptly and whether you have a decent defence. Two, slightly different, tests to think on....

theblackfox

Thanks Joshnersh.

So to prepare for my set aside hearing would my next plan of action be:

- Prepare draft defence document covering everything starting with the fact the keeper has no liability in this matter (as Gladstones clients don't comply with POFA) like nosferatu1001 suggested

- Prepare a bundle including the application notice, statement, particulars, draft defence, photos (Would these be my parked car photos I have?), a site plan etc and send to the defendant and the court no fewer than 7 days prior to the set aside hearing as you suggested in a previous post.

- Submit the above bundle to the defendant and the court no fewer than 7 days prior to the set aside hearing as you suggested in a previous post.

Again, all the above would be based on templated information as I have no particulars from Gladstones yet.

Would it also be ok to post my draft defence in this thread for review before I submit it?

Redx

yes , post it in this thread , one thread , one topic is the rule

keep it all together

and CM wont be replying because unfortunately she has been PPR`d by mse staff

Umkomaas

and CM wont be replying because unfortunately she has been PPR`d by mse staff

Any idea for how long? Usually it’s about 2 weeks, but it seems a little longer than that at the moment.

It always happens when a certain individual pops up under yet another guise, then disappears once a seeming objective is achieved.

theblackfox

Hey guys, still putting a draft defence document together but have a query:

As my situation is very close to the Saggi case, in her results post it mentions nothing about a Defence for the Set aside hearing:
forums.moneysavingexpert.com/showthread.php?t=5581374&highlight=saggi+case&page=2#25

How do I defend myself if I have no information from the claimant?
Do I base my defence on what I wrote in my witness statement?
Do I just turn up to the set aside hearing without a draft defence?

The_Deep

It is her fault, she does not have to take the bait.

I am puzzled about why you are concerning yourself with defending this. Has the judge told you to? Has the PPC indicated that they wish to have the case relisted?

MUI that a set aside is usually automatic if the papers were not properly served, and acted in timely manner.