Parking CCJ - ANPR camera and CCJ docs sent to old address

Coupon-mad

How about, instead of your wording:

I was previously unaware of this Claimant, Civil Enforcement Limited and have now ascertained that the claim is in respect of an unpaid Parking Charge Notice from the XXrd March 2017 at Car Park – The Golden Lion between 14:56pm-15:04pm. This is a case where the Claimant has not followed the Protection of Freedoms Act 2012 provisions in Schedule 4, which may otherwise have allowed them to hold me liable as one of the lessee/hirers of the vehicle around that date. As such I was never liable and if I had known about it, I would have defended the entire claim had it not been defectively served.

thehopcat123

Thank you Coupon! Have updated.

Coupon-mad

What about your 6 point order, copied from other set aside threads?

thehopcat123

My six point order:

1. The default judgment dated 18/05/18 be set aside.

2. Costs to be reserved.

3. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4pm on XXXXXX paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 and the claim shall be struck out.

4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm XXXXXX

5. Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 plus the Defendant's costs for attending the hearing.

6. All enforcement be put on hold pending the outcome of the application.

Coupon-mad

Nice work. :T

thehopcat123

Thanks! I’ve got everything together (inc the supporting docs), I’m getting them printed and it all handed into the court tomorrow morning. From there on in it’s a waiting game I guess!

henrik777

I'm not a lawyer or legally trained. (i mean me not that you should say that to the judge !)

I submit that the CCJ should be set aside under CPR 13.2 (a) as the claim form was never served.

CPR 13.2 states

13.2 The court must set aside 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


CPR 12.3(1) states

12.3

(1) The claimant may obtain judgment in default of an acknowledgment of service only if –

(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and

(b) the relevant time for doing so has expired.

The relevant CPR for acknowledgment of service is cpr 10.3 which states

10.3

(1) The general rule is that the period for filing an acknowledgment of service is –

(a) where the defendant is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim


CPR 6 deals with service.

As i did not give an address to the claimant at which i could be served, primarily because i was not asked, CPR 6.9 applies.

CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence."

The claimant, having not obtained an address directly from myself, and having obtained an address from a 3rd party quite some time ago and received no response, did not have the requisite knowledge nor perform the requisite "reasonable diligence" required to find my correct address in order to serve the claim form.

In Collier v Williams [2006] 1 WLR 1945 (CA) LJ Dyson said

"What state of mind in the server is connoted by the words "last known"? … 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, i.e. 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."

Whilst these comments were obiter they were given further credence by

HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)

HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012)


In Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012) it would appear that obtaining the information from a source that an individual is required by law to keep updated is adequate knowledge. However, i would submit that it is incumbent to have recent knowledge and not outdated knowledge as HHJ Hacon put it in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)

"However I am in any event not persuaded by Ms Michaels on this point. The logic of her submission is that a claimant must conduct his inquiries into a defendant's whereabouts on the very date on which the step required for service within the meaning of CPR 7.5(1) is carried out, e.g. posting the documents. That seems to me to be an unnecessary burden and I doubt that it is what the Court of Appeal had in mind in Collier v Williams. I take the view that if a claimant has carried out inquiries with reasonable diligence as to the defendant's last known residence before that date and on that date it was objectively reasonable for the claimant to believe that the defendant's residence remained unchanged, then on that date it is still the defendant's last known residence for the purposes of service by that claimant. Of course the longer the delay between the inquiries and the date of the step required for service the harder it will be for a claimant to establish that there was good service.
In the present case MBGB's inquiries were sufficient to give it actual knowledge on 8 November 2012 that Mr Burton lived at 23 Irvine Place (which he did). No reason has been advanced as to why MBGB should not reasonably have believed on 12 November 2012 that he still lived there. In my view his last known residence on that date was still 23 Irvine Place so far as MBGB were concerned."

I would submit that an address obtained on or around INSERT DATE HERE is not reasonable knowledge a significant time later (adapt using actual dates !)

I could easily have been found as i updated my driving licence, V5, voters roll .............. although i understand private parking firms are not allowed to use the electronic dvla access that they have more than once per ticket and they would have to find an up to date address via other sources.

I would respectfully submit there has been no service of the claim form and as such the claim form must be set aside under CPR 13.2

As it was put in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016) by LJ McCombe

"Moreover, I do not consider that the CPR presents an obstacle in the circumstances of this case to setting aside judgment. CPR 13.2 provides that the court must set aside a default judgment where any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied. The latter provision does not apply, but the former is relevant. CPR 12.3(1) states that a claimant may obtain judgment in default of an acknowledgment of service only if (a) the defendant has not filed an acknowledgment of service or a defence and (b) the relevant time for doing so has expired (my italics). I accept Mr McLaren's argument that, when an order for retrospective validation of an alternative method of service has been made pursuant to CPR 6.15(2) the relevant time for filing an acknowledgment of service is the period which the court must specify under CPR 6.15(4)(c). Where, as in this case, the court did not specify any such time there can be no relevant time which has expired for the purposes of CPR 12.3(1). If this analysis is correct the requirements of CPR 12.3(1)(b) have not been satisfied and so the court is obliged to set aside the default judgment pursuant to CPR 13.2(a).

I do not see it as a draconian consequence that a judgment, obtained after deemed service has been effected without specifying a time for that service to be acknowledged, should be set aside as of right in such a case. I agree that CPR 13.2 specifies the circumstances in which a default judgment must be set aside and in my judgment one of those circumstances is when judgment is entered in default of an acknowledgment of service when "any of the conditions in rule 12.3(1)…was not satisfied". Here one such condition was not satisfied, namely the time for acknowledgement of service had not expired, because none had ever become applicable.
This, to my mind, is not "playing technical games" (c.f. the passage from the Abela case, cited at paragraph 11 in the judgment of Longmore LJ). It is merely applying the principle that due process should be followed. If a defendant has never become under a valid obligation to acknowledge service, either as specified under the rules or by order of the court, I do not see how it can be that a judgment can be entered against him in default of such acknowledgment. He is simply not in default at all."






If the court is not with me on this i submit that the court should use it's discretion under cpr 13.3 ........................................................



Edit and adapt your own circumstances as you see fit. Case listed can be found on Bailii.org

Coupon-mad

Nice template henrik777, your valuable input here is great help with all the set asides.

thehopcat123

Thanks Henrikk! That is absolutely brilliant. I’ve been away the past week but I’ve got back to find a notice of transfer of proceedings, am awaiting a court date, an having to put my re-mortgage application on hold while all this goes through so hoping things move sooner rather than later. Thanks again for all your help in this matter.

thehopcat123

So I have an update.

Another letter arrived today...from Civil Enforcement Limited...hopefully the image above has worked but basically they will send me a draft order which will contain the following terms:

1. CCJ to be set aside
2. Claim dismissed
3. No order for costs

So. I can accept their offer or, as the letter states, I can 'show this letter to the judge on the issue of who should pay the costs of your application;.

Now there's part of me that wants this done and dusted and thinks I should just swallow the £255, but there's also part of me that says they know they don't have a claim so I want my £255 back from them!!

Any advice on how to proceed? Contact them to say I will only accept their offer if they agree to pay the £255 set aside fee, or take it to court and risk seeing what the judge says?

The other thing that weighs on my mind is that even though I told the courts the dates I am out of the country for the rest of this year, that the court date will be on one of those dates, will that have implications on me if I say I can't do the trial date they propose?