CCJ at previous address from PPC

Umkomaas

drewwhonumba2 wrote: »

I may be clutching at straws here but i do have a chronic back condition that i have been recieving physiotherapy and osteopath treatment for.

Would this be an argument for using a disabled bay in a private car park?

You need to check it out against EA 2010. You will need your head around all of the relevant aspects of EA in order to persuade a Judge of your entitlement to use a disabled bay.

But he may take a very narrow view, that of the PPC, no blue badge, no parking in a disabled bay. There again he may totally overlook that on the basis of some other technical/legal aspect(s) you put forward.

22/3/18 parked in hotel car park in a disabled bay - it was late at night and i was in a rush

So as you were in a rush, exactly how much time was saved by parking in a disabled bay as opposed to a standard parking bay?

What was so urgent that forced you to deny parking to someone who might have needed that space, and was fully entitled to use it?

You need to think about all these (and probably many more) - as the next time you're asked, it might be by a Judge.

Why do you think landowners employ PPCs when their parking spaces are being abused?

drewwhonumba2

Umkomaas wrote: »

You need to check it out against EA 2010. You will need your head around all of the relevant aspects of EA in order to persuade a Judge of your entitlement to use a disabled bay.

But he may take a very narrow view, that of the PPC, no blue badge, no parking in a disabled bay. There again he may totally overlook that on the basis of some other technical/legal aspect(s) you put forward.


So as you were in a rush, exactly how much time was saved by parking in a disabled bay as opposed to a standard parking bay?

What was so urgent that forced you to deny parking to someone who might have needed that space, and was fully entitled to use it?

You need to think about all these (and probably many more) - as the next time you're asked, it might be by a Judge.

Why do you think landowners employ PPCs when their parking spaces are being abused?

Thank you so much for your reply l, please can you let me know your thoughts on this however?

My main goal is removal of CCJ not to defend the parking charge

Is this enough of a defence to get a set aside even if i then dont win the defence?

drewwhonumba2

henrik777 wrote: »

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."

Thanks Henrik, such an amazing response but can you help me to understand the following in terms of a defence?

Is this the reason to set aside or is this the defence in the witness statement?

I know that i need to have a reason to set aside and a defence otherwise i might not get set aside alone based on CCJ summons not being sent to correct address

I really appreciate your help to understand this nuance

Umkomaas

Your set aside will cost you £255 and a failed defence will likely cost you whatever the PPC was originally awarded in the original default judgment.

Even being posted to an incorrect address, if that was all the PPC had available to them, and they made no errors in their approach it's a strong possibility that you won't recover your £255.

Looking at your CCJ record (in your signature), do you have difficulty in dealing with court claims against you?

henrik777

drewwhonumba2 wrote: »

Thanks Henrik, such an amazing response but can you help me to understand the following in terms of a defence?

Is this the reason to set aside or is this the defence in the witness statement?

I know that i need to have a reason to set aside and a defence otherwise i might not get set aside alone based on CCJ summons not being sent to correct address

I really appreciate your help to understand this nuance

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

There are 2 types of set aside.

1. Mandatory

2. Discretionary


Mandatory set aside

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

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

(c) the whole of the claim was satisfied before judgment was entered.





Discretionary

Cases where the court may set aside or vary judgment entered under Part 12
13.3

(1) In any other case, the court may set aside(GL) or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

(2) In considering whether to set aside(GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.


As you can see, a mandatory set aside has less conditions to be met. Most notably, no time limit AND no requirement that you need to show you can defend the case.

If a claim form has not been server, it's a mandatory set aside. (although always have a discretionary set aside with a defendable case as a secondary option!)

henrik777

Perhaps this might clarify it for you ? https://forums.moneysavingexpert.com/showpost.php?p=76112670&postcount=17

drewwhonumba2

Umkomaas wrote: »

Your set aside will cost you £255 and a failed defence will likely cost you whatever the PPC was originally awarded in the original default judgment.

Even being posted to an incorrect address, if that was all the PPC had available to them, and they made no errors in their approach it's a strong possibility that you won't recover your £255.

Looking at your CCJ record (in your signature), do you have difficulty in dealing with court claims against you?

If i dont want to recover these costs,.that is, im happy to pay anything as long as the CCJ is removed, do you still think i have case for set aside given the circumstances?

I genuinely had no idea about this until i checked my credit report

Umkomaas

drewwhonumba2 wrote: »

If i dont want to recover these costs,.that is, im happy to pay anything as long as the CCJ is removed, do you still think i have case for set aside given the circumstances?

I genuinely had no idea about this until i checked my credit report

Henrik is by far much more experienced in this than I am, to give any view on how this might pan out.

Sometimes we find it impossible to provide posters with the cast-iron guarantees they are looking to squeeze out of forum volunteers.

drewwhonumba2

Umkomaas wrote: »

Henrik is by far much more experienced in this than I am, to give any view on how this might pan out.

Sometimes we find it impossible to provide posters with the cast-iron guarantees they are looking to squeeze out of forum volunteers.

I understand and really do appreciate your response.

My previous CCJ's were from way back when i was at university and i didnt even try to defend them and they were for a different kind of debt.

This is totally different, ive moved on and am now financially secure i simply didnt know about the court proceedings otherwise id have paid just to get out of the CCJ

I do see your point as looking at my signature you can see i had past problems but that was a different era where i basically ignored the summons

Right now i could have easily paid and would have settled given the opportunity

I was essentially following pat advice of ignoring private parkings charges which i definitely will not be moving forwards

henrik777

drewwhonumba2 wrote: »

If i dont want to recover these costs,.that is, im happy to pay anything as long as the CCJ is removed, do you still think i have case for set aside given the circumstances?

I genuinely had no idea about this until i checked my credit report

No matter which avenue you take you'll be asking the claimant to consent.

You have a pretty strong chance to set aside on the facts.

Another potential avenue is to ask them to consent to a set aside as long as you pay the money once it's set aside.