Parking CCJ set aside advise

henrik777

Confusedbylaw wrote: »

Date of service was 12/10/2019 which is when letters were sent to my address. The court agent on the phone said date of issue was 5 days prior to that which means 7/10/2019

Write to them asking for a consented set aside with them paying costs. They employed an agent and that agent clearly KNEW you did not reside at the address they attempted to serve.

Use https://forums.moneysavingexpert.com/showpost.php?p=76433288&postcount=16 to assist your understanding and use YOUR circumstances to compose your email to them requesting consented set aside.

nosferatu1001

I would immedaitley do as above
Tell them you expect them to consent to the set aside as their agent
1) foudn the correct address
2) knew it was the correct address as it was confirmed
3) they failed to then use this correct updated address.

As such they are aware that the claim form was ne ver validly served, and that was their responsibility. This is an automatic set aside should they force you to go for a contest ed set aside at £255, and should they do so, you will claim your full costs. This was they save £155 AND the courts time.

Confusedbylaw

nosferatu1001 wrote: »

I would immedaitley do as above
Tell them you expect them to consent to the set aside as their agent
1) foudn the correct address
2) knew it was the correct address as it was confirmed
3) they failed to then use this correct updated address.

As such they are aware that the claim form was ne ver validly served, and that was their responsibility. This is an automatic set aside should they force you to go for a contest ed set aside at £255, and should they do so, you will claim your full costs. This was they save £155 AND the courts time.

For consented set aside do I make contact with the parking company or Gladstones their solicitors also should it be done over the phone? Thanks

Coupon-mad

Not over the phone, certainly not a call to PCM who will talk crap at you (their offices were shown on Watchdog on TV, as Rogue Traders, and the staff were laughing that they 'make it up most of the time' to get money from people.

Show us your draft as so many people make them too polite, yet in this case the parking firm knew or should have known from their agent's data that was collected on behalf of PCM, who were the main data controllers, that your address had changed.

TRACE knew what it was well before the claim was filed, and they were PCM's agent and the new address data was harvested for PCM, so this is PCM's fault. So no polite 'kind regards'.

I would contact the parking firm as Gs won't get involved in a consented set aside.

This needs to be a formal letter, sent at a local PO Counter, where you get a free 'certificate of posting' receipt, and keep it as proof (NOT 'SIGNED FOR' post, of course not to PCM...think about it).

Confusedbylaw

Coupon-mad wrote: »

I would contact the parking firm as Gs won't get involved in a consented set aside.
.

Do you think I should still send them a written request for consented set aside when my 30days run out on the 30/11.

Confusedbylaw

Coupon-mad wrote: »

Show us your draft as so many people make them too polite

This is my draft letter to PCM

PCM
[their address]
[today's date]

Dear Sir or Madam
Consented set aside for case reference xx

My details:
My name, resident of xx
Previous address: xx
Registered keeper of [car reg]

I have recently learned about a CCJ which was processed on your behalf by Gladstones Solicitors. I would like to offer you to consent to the set-aside application I intend to make as you do not have the legal grounds to pursue the parking charges due to breach of following rules:
1. You obtained a default judgment on XX/11/19. I was unable to respond to the claim pack because you have used my previous address X
2. Trace Recoveries, your debt collections agency found my new address X and made contact on XX/07/19
3. The address was confirmed by the registered keeper of the car by contacting Trace Recoveries in July 2019 following the receipt of the letter
4. You have behaved unreasonably in pursuing a claim against me using my old address when your agent knew of my new address.
5. Claim amount of £262 includes additional charges which are non-recoverable under POFA2012

Considering the above I was unable to defend your claim properly. I thus believe that the Default Judgement against me was issued incorrectly and thus should be consented to set aside

By consenting to set aside you pay £100 for the court fees, otherwise, I will be filing for the full £255 of the Court fees to be paid by you

Confirm your consent or refusal

[Signature]


What else can I add to the letter I send them?

Le_Kirk

I would like to offer you to consent to the set-aside application I intend to make........

That doesn't make sense, what were you trying to say?
Read the post #13 by nosferatu1001 again, he almost gave you the words for the letter.

henrik777

Dear Parking Control Management Ltd,

On xxx a CCJ which was processed on your behalf by Gladstones Solicitors. They attempted to serve the claim form at xxxx.

On xxx your agents, Trace xxxx, sent a letter to a different address, xxx, as presumably they discovered i no longer resided at xxx. You therefore knew, or should have known, that the address where you sent the claim forms was an address at which i no longer resided. Indeed, contact between myself and Trace xx was effected once they wrote to me at my new address of xxxxx

As service was defective the court must set aside your judgment pursuant to CPR 13.2




http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13#13.2

Cases where the court must set aside judgment entered under Part 12

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







Conditions to be satisfied
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.

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part12#12.3




The relevant time for filing an acknowledgement of service

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part10#10.3

The period for filing an acknowledgment of service
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; and

(b) in any other case, 14 days after service of the claim form.

(2) The general rule is subject to the following rules –

(a) rule 6.35 (which specifies how the period for filing an acknowledgment of service is calculated where the claim form is served out of the jurisdiction under rule 6.32 or 6.33);

(b) rule 6.12(3) (which requires the court to specify the period for responding to the particulars of claim when it makes an order under that rule); and

(c) rule 6.37(5) (which requires the court to specify the period within which the defendant may file an acknowledgment of service calculated by reference to Practice Direction 6B when it makes an order giving permission to serve a claim form out of the jurisdiction).



If the claim form was not served (or validly served as some may put it) the time limit for acknowledging service has not begun. If it hasn't begun it can't have expired. If it hasn't expired that is a mandatory set aside.



This is on point with the court of appeal in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016)

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.


In light of the above, and the over riding objectives (CPR 1) i invite you to consent to a mandatory set aside, with the costs bourne by yourselves which will be cheaper than obtaining the same result without consent.

Please respond within 7 days.

Yours etc

Give them 3 days then ask what's up. Then after 7 apply.


I would try email but if you wish to post then you can (or email followed up by letter).





That's my rough idea which should be edited appropriately should you wish to use.

Confusedbylaw

Thanks henrik777, this is really helpful as I was on course to send a very informal letter.

Was thinking if time has actually run out for a consented set aside because my 30 days ends on 30/Nov therefore should I be preparing for a standard set aside? Think can use some of the points for my witness statement from above?

henrik777

Confusedbylaw wrote: »

Thanks henrik777, this is really helpful as I was on course to send a very informal letter.

Was thinking if time has actually run out for a consented set aside because my 30 days ends on 30/Nov therefore should I be preparing for a standard set aside? Think can use some of the points for my witness statement from above?

There isn't a 30 day time limit for a set aside. I assume you mean paying so that your credit rating doesn't suffer.

If that's correct, i can't see why you can't do both.