CCJ at previous address from PPC

drewwhonumba2

hi all,

i hope everyone has had a nice Christmas?

Please can you cast your eye over my draft N244 submission as i'd like to get this processed asap

I've included a block of information that Henrik kindly sent but i'm unsure how much of this i need to include on the actual form or if it was just as an FYI


DRAFT ORDER

IN THE COUNTY COURT AT: xxxxxx

UK CAR PARK MANAGEMENT LIMITED (Claimant)

And

MR ********************* (Defendant)


CLAIM No:**********


IT IS ORDERED that:

1. The default judgment dated 05/07/19 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.

---

I am NAME and I am the Defendant in this matter. This my supporting Statement in support of my application dated 31st of December 2019 to:

1. Set aside the Default Judgement dated 5th of July 2019 should be set aside under CPR 13.2 (a) as it was not properly served at my current address and order for the Claimant to pay the Defendant £255 as reimbursement for the set aside fee;
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."

2. Order for the original claim to be dismissed.

1. Default Judgement

1.1. I understand that the Claimant obtained a Default Judgement against me as the Defendant on the 5th of July 2019. I am aware that the Claimant is UK Car Park Management LTD and that the claim is in respect of an unpaid Parking Charge Notice from the 22nd March 2018 at Car Park – De Vere Village Farnborough

1.1 I was previously unaware of this Claimant, UK Car Park Management LTD and have now ascertained that the claim is in respect of an unpaid Parking Charge Notice from the 22nd March 2018 at Car Park – De Vere Village Farnborough. 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

1.2 On the 18 of December 2019 I contacted County Court business to find out details of the default judgement. The details sent to me contain sparse particulars of claim, making is exceedingly difficult for me to lodge an effective defence. I would also like to make the court aware that once I discovered this alleged offence I acted promptly, completing the N244 and sending off my claim for the set-aside process within 14 days.
1.3 On 19th December 2019 I contacted Leaseplan who are the owners of the vehicle and was informed that my contact details were provided to UK Car Park Management LTD on 2nd May 2018. I moved to a new address on 30th June 2018

1.3. The claim form was not served at my current address and I thus was not aware of the Default Judgement until 18 December 2019, when I carried out a routine check of my credit report. I understand that this claim was served at,OLD ADDRESS . However, I moved to a new address at, NEW ADDRESS on the 30th June 2018. In support of this I can provide a solicitor’s completion statement showing the date of completion, confirmation from my employer of my address, updated DVLA records and confirmation from Rushmoor Borough Council showing my updated details for the purposes of paying Council tax. All documents are attached.

1.4 I have also never received any previous documentation from the Claimant in this matter and I thus was never able to challenge the Claimant’s claim. On 19th December 2019 I was unable to contact the Claimant using information given to me by the County Court Business Centre, I have contacted the Claimant by phone and email and have not received a response. This means as the defendant I have not had any details of the incident the Claimant alleges has taken place, other than the summary of the charges owed, which is shown on the court papers.

1.5 At the time of this alleged incident I was not the registered keeper of any vehicle and this PCN was issued to the address of Leaseplan UK Ltd, a fleet management company. Further notice was supposedly issued as I was named as the vehicle driver at the time. I had moved house in the year it took for the claimant to issue proceedings, in this time they made no contact with me at all despite Leaseplan UK Ltd, the DVLA and the electoral register all having updated address details.

1.6 I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring I was the correct defendant and that they held the Defendant’s correct contact details. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country. This is a topical issue: I note that the Justice Minister The Rt Hon Sir Oliver Heald QC MP announced on the 23rd December 2016 a consultation and information campaign to help protect consumers from debt claims. The consultation will look at ways to; “better protect consumers who are sent mail to inaccurate addresses and verify addresses again before a claim is sent.” The Minister added that “In the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.”

1.7 I have at no time tried to avoid paying for any known debt, and was at all times there to be found by a simple trace. It is submitted that the Claimant should have taken those reasonable steps, and would have known or should have surmised that it was likely that I was not at the old address, or that they had been provided with incorrect contact details, given the length of time from the alleged parking charge and the fact that the Claimant was receiving no reply from the Defendant.

1.8 I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim.

1.9. Considering the above I was unable to defend this claim. I thus believe that the Default Judgement against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.


2. Order dismissing the Claim

2.1 I further believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand the Claimant to be a Private Parking Company that issues “Parking Charge Notices” which the Claimant believes are due as a result of an alleged breach of contract for parking by a motorist.

2.2. It appears that the Claimant has obtained details of the vehicle for which I am the alleged driver and used those details to make a claim for a ‘Parking Charge Notice’. Any Notice to Keeper served by the Claimant must comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012. This includes the requirement to issue the Notice to Keeper within 14 days of the alleged incident. If the Claimant has not complied with the requirements of the Act they cannot claim this charge against me in any case. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me.

2.3 As I have been named as The Driver the Claimant is required to comply with The Protection of Freedom Act 2012, namely paragraphs 13 and 14 whereby they must include a copy of the signed hire or lease documents in order to pursue a claim against a Driver. I submit that the Claimant will have not complied with the requirements of the Act and thus cannot claim this charge against me.


2.4 If the Claimant has obtained details of the vehicle for which I am the alleged driver, and used those details to make a claim for a Parking Charge Notice, I thus dispute the claim in its entirety as I do not know the wording of the contract nor do I know the means by which the contract was alleged to come into force.

2.5. The Claimant has provided no evidence that I was the driver at the time and date of the PCN being issued. The Defendant avers that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA"). In addition, the Claimant will not have transferred liability to the hirer in the prescribed manner under paragraphs 13 and 14 of Schedule 4 of the POFA. So even if the Court is minded to believe that a purported ‘Notice to Diver’ or Notice to hirer' being sent to an old address is acceptable, the lack of enclosures renders the document as not properly served under the statute. Thus, a vehicle hirer who, on the balance of probabilities was not the driver on that occasion, has an absolute defence in this instance and the Claimant's claim has no merit.

2.6. I submit that this is not a penalty charge notice but a private one based on contract law and therefore the Claimant must:

a) show evidence that they have complied with the POFA or alternatively, show evidence of the driver's identity, to prove that this is the right defendant

b) set out the facts on which it is asserted that the claimant has a cause of action against this defendant, and

c) identify the 'relevant obligation' of the defendant to pay parking charges and the 'relevant land' on which the parking is said to have occurred

d) state whether the claim is in relation to a 'relevant contract' or in respect of an alleged trespass or other tort (as per the POFA 2012 Schedule 4)

e) disclose full particulars and a contract, in order to evidence a claim in law

3.6. On this basis I believe that the Claimant has not provided any reasonable cause of action and absent the above being produced in short order, I ask the court of its own volition to strike out this claim and to order the Claimant to refund the Defendant's costs for attending, namely the £255 Court fee in bringing this set aside case, despite not being shown to be liable for any parking charge at all.

3.7 If required to defend at a further hearing, I will require all copies of paperwork, letters and other documentation including pictures of all signage from the Claimant in order to make informed decisions and statements in a comprehensive defence as alleged driver.

Coupon-mad

Your first action was to ask them to consent to set aside, though, and that doesn't cost £255. What you have shown us is a non-consent set aside application.

drewwhonumba2

Coupon-mad wrote: »

Your first action was to ask them to consent to set aside, though, and that doesn't cost £255. What you have shown us is a non-consent set aside application.

I'm conscious that i need to get the N244 form in promptly

If im happy to pay the £255 for a non consent set aside application is my draft acceptable?

Coupon-mad

Yes, I really like what you have put together!

drewwhonumba2

Thanks Coupon-Mad, the information that you and Henrik provided has been hugely helpful

I think i may have found something interesting to suggest that Gladstones did have my current address before the CCJ was served at my old address

As a result of this I've gone about putting a couple of other PCN's in order that i had previously chosen, incorrectly, to ignore.

I have found a letter from DRP chasing a PCN on behalf of 'Smart Parking Ltd' dated 5th February 2019 - 5 months before the CCJ from UKCPM Ltd

It states:

"Due to there being no response following correspondence sent to this address, we have utilised a tracing service which has provided the above new address as your most current address'

Now, presuming that UKCPM also uses DRP it suggests that my new address would have already been in their records and that they do see the need to carry out a trace once no reply has been made at a previous address

I'll only know for sure when DRP respond to the SAR that i put in for

Umkomaas

I'd guess they deal with every PCN separately. Don't forget they're dealing with this stuff on an industrial scale. PPCs issued 7 million tickets in the past 12 months. No one at DRP will be inputting any human brain cell into any of this.

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."

Henrik - i'm almost ready to submit the N244, I just wanted a final piece of advice on the structure


Am I ok to include this text in the WS or shall I include it as a separate Skeleton argument?

henrik777

My preference is to keep legal argument in a skeleton/oral argument and witness evidence in a witness statement.

So I would include in the witness statement, such things that compliment the argument i'm trying to make. So things like, i registered on the electoral role on xxxx. I moved on xxxx. I found out i had a CCCJ on xxx because i ........ etc etc


Argument such as rules and cases are not "witness" evidence so belong to the argument.

drewwhonumba2

thanks Henrik, i think i now have everything i need to submit this tomorrow.

Upon reflection of my previous comments about seeking a set-aside with consent I actually think that I also have a robust argument to defend the original claim anyway using POFA 2012 so am keen to see if i can get this struck out completely and recover costs

"Claimant is required to comply with The Protection of Freedom Act 2012, namely paragraphs 13 and 14 whereby they must include a copy of the signed hire or lease documents in order to pursue a claim against a Driver"

I now have the communication that the lease company sent to UKCPM and it doesn't actually name a driver anyway just that i have 'Full use of the vehicle' - Note also the use of the wording 'Penalty Charge Notice'

To whom it may concern
THIRD PARTY AUTHORISATION LETTER
Please accept this letter as confirmation that LeasePlan UK Ltd authorise you to communicate directly with the nominated
person detailed below in relation to the Penalty Charge Notice they have received:
Vehicle Registration: XXX
Reference: XXX
Make/Model: XXX
Contract Start Date XXX
Contract End Date XXX
Driver/Customer Name XXX
Driver/Customer Address XXX

The above vehicle is on long term lease with LeasePlan UK Ltd and the nominated person above has full use of the
vehicle.

I certainly don't think this constitutes providing a full lease agreement

Coupon-mad

Are you able to show that more than one driver drove it? Otherwise a Judge might conclude on the Balance of Probabilities that the driver was you, anyway.

Your Smart Parking letter is a good example to show the Judge what OTHER ATA member parking firms do, and paint the Claimant in this set aside case in a worse light, by comparison.