CCJ at previous address from PPC

henrik777

You've taken the basic arguments and copied some stuff which is fine in itself but it neither flows correctly nor applies your own circumstances to the argument.



The summary is pretty much nothing to do with the set aside application itself.


This is the first hearing of an application made under an Application Notice dated [date] of the Defendant, [name], for setting aside default judgment. The claimant (name), file a court claim (number xxx) on (date) and obtained judgment in default on (date) having used an address that i know longer lived at, which they knew.

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.

The current CPR 6.9 (3)

(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) 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.

(5) If, under paragraph (4)(b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15.

(6) Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant –

(a) cannot ascertain the defendant’s current residence or place of business; and

(b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b).”



I sent a subject access request to (xxx) on (date) (exhibit xxx) which further shows that (xxx) attempted to write to myself at my new address but they had failed to use my complete address, missing out my flat number, which appears to have meant that i did not receive it. (exhibit xxx). I submit there can be no clearer "reason to believe" as per cpr 6.9(3) than this, which added to the total non response elicited from my old address, means that (xxxx) should follow the procedure mandated by cpr 6.9.

These steps are 

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) 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.

(5) If, under paragraph (4)(b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15.

(6) Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant –

(a) cannot ascertain the defendant’s current residence or place of business; and

(b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b).



Cpr 6.9(4) is a mandatory requirement Sajid -v- Nuur (Central London County court 30/7/18) (xxx) it is believed (xxx) has not performed such.


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 Treacy

"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)."

And LJ McCombe

"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."


I would conclude that a set aside is mandatory under CPR 13.2 due to the claimants incorrect service to an address their own paperwork shows was no longer a last known address.





This is more akin to what i'd argue, whilst noting you have no back up plan for a discretionary set aside (which you really shouldn't need btw)

henrik777

NUUR v Sajid

drewwhonumba2

Thanks Henrik, 
I have actually already submitted a witness statement and draft defence but this was my 'attempt' at a skeleton argument and cost schedule 
I completely see your point and thanks again for such a detailed response and additional advice 
I will resubmit a new skeleton argument 

henrik777

Costs

There appears to be confusion between indemnity costs and small claims rules.

This case never reached the allocation stage as no defence was submitted. This means that small claims rules should not apply. (i would say do not apply but there are some judges who use their own rules )


CPR 44 deals withe the costs regime which should apply.

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part-44-general-rules-about-costs#rule44.3

Basis of assessment

44.3

(1) Where the court is to assess the amount of costs (whether by summary or detailed assessment) it will assess those costs –

(a) on the standard basis; or

(b) on the indemnity basis,

but the court will not in either case allow costs which have been unreasonably incurred or are unreasonable in amount.

(Rule 44.5 sets out how the court decides the amount of costs payable under a contract.)

(2) Where the amount of costs is to be assessed on the standard basis, the court will –

(a) only allow costs which are proportionate to the matters in issue. Costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred; and

(b) resolve any doubt which it may have as to whether costs were reasonably and proportionately incurred or were reasonable and proportionate in amount in favour of the paying party.

(Factors which the court may take into account are set out in rule 44.4.)

(3) Where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether costs were reasonably incurred or were reasonable in amount in favour of the receiving party.

(4) Where –

(a) the court makes an order about costs without indicating the basis on which the costs are to be assessed; or

(b) the court makes an order for costs to be assessed on a basis other than the standard basis or the indemnity basis,

the costs will be assessed on the standard basis.

(5) Costs incurred are proportionate if they bear a reasonable relationship to –

(a) the sums in issue in the proceedings;

(b) the value of any non-monetary relief in issue in the proceedings;

(c) the complexity of the litigation;

(d) any additional work generated by the conduct of the paying party; and

(e) any wider factors involved in the proceedings, such as reputation or public importance



You can read cpr 44 as a whole if you want. Indemnity means proportionality doesn't matter and the court starts with the notion that the costs are due (broadly speaking, they won't say that if you try to claim your sky subscription !) where as standard costs it's the opposite and the costs need to be proportionate.



If you get a non compliant judge then you should be aware of unreasonable costs on the small claims track to get roughly the same result but it really shouldn't be discussed as it's technically wrong.




Why should you get indemnity costs,

They, perhaps deliberately (but will claim poor admin), used an incorrect address for service, which their own paper trail shows they knew was incorrect. They did not follow the clear guidelines of cpr 6.9. They did not consent to the application
 despite being told of their failures contrary to the over riding objectives of CPR.





I realise this might be a little late in your case (hopefully not) but it may assist future readers.

drewwhonumba2

I have just returned from the set aside hearing and i'm pleased to say that it went in my favour, apologies any spelling errors as i'm still shaking with joy. 

I arrived at the court early and handed the usher spare bundles for the judge and claimant. The hearing was back to back and cases were called as per the judges wishes so i could have been waiting all day. Various other solicitors and their clients arrived and the room started to become full. I'd heard a number of legal representatives attempt to talk to the other parties and was wondering when UKCPM would try and talk to me. All cases were heard at 10am but at 10:30 the usher handed me back the bundle i had prepared for the claimant stating that nobody has arrived for them so i may as well have it back. 

Around 10:50 I overheard the usher on the phone to the judge discussing which case to see, she mentioned my name stating claimant hadn't shown up and another case where the defendant hadn't shown up. I was then asked to go through which i was happy about. 

As i was waiting i read which judge it would be and googled him, there was a case with BW Legal that he had heard a few months previous and which he struck out quickly so I was getting confident at this stage 

Into the court, the judge was very polite and friendly, asked me to take a seat and asked how i was. He then told me that he has read my skeleton very carefully from the bundle i provided but had a couple of questions just to make sure his understanding was correct. He run through the main points asking me if it was correct, i told him yes. 

He was slightly confused that the address on the judgement was my current address but led the question 'what i'm asking is, did you update the address upon finding out about the judgement or did the court already have it?' I explained that I had updated it with Northampton business centre to ensure all future correspondence would be sent to the correct address, he nodded and was happy with this. 

Onto the set aside, he walked through the argument, looked at my evidence and said words to the effect 'they clearly knew you wasn't living at the old address so i have no problem in granting the set aside' 

He then said 'but there is now the case of the original claim and i see you have already prepared a defense and you and the claimant will need to file this within 7 days'. His attitude was very much along the lines that you've already done the work, lets just get it in quickly. 

Onto the costs he said 'I presume you have had to pay for this hearing?' I responded yes £255 he then said 'and i see you have prepared a schedule of costs' 

'As UKCPM have not show up I have no problem in asking them to pay the set aside fee' 

'Parking and mileage no problem' i then told the judge i'd actually paid £10 parking not the £5 on my schedule and I have a receipt, he just nodded and said its fine

Onto loss of earning he mulled this over and i think he was going to reject it but then said 'I cannot pay the amount you have requested as the maxim is £90, i will award this' he then proceed to make notes and read out the costs. 

I asked about costs for unreasonable behavior and he went on to talk about the bar being very high for that type of costs to be awarded as its a small claims court. He also said that as UKCPM were not here and hadn't filed any documents he couldn't determine unreasonable as they may believe they are justifed. But he advised me that an additional costs schedule should be filed with the defense and there it could be considered. He then gave me directions on filing the defence and would endeavour to the notes etc written up quickly and sent out today. He thanked me for my time and told me to have a very pleasant day

Total costs awarded: £357

Obviously i could never have done this without the support and advice from this forum and special thanks to Coupon-Mad and Henrik for their detailed responses and guidance. 

Castle

A very helpful Judge.

henrik777

They got off lightly. A sterner judge who dislikes people wasting precious court time may have awarded more costs. But thankfully you got the costs you did and, importantly, the set aside.

drewwhonumba2

henrik777 said:

They got off lightly. A sterner judge who dislikes people wasting precious court time may have awarded more costs. But thankfully you got the costs you did and, importantly, the set aside.

Indeed, im very pleased with the outcome especially as 6 weeks ago id have been prepared to pay the original claim just to get rid of the judgement! Im so pleased i perservered and put in the work, thanks so much again for your help. 

Now onto the defence! 

D_P_Dance

So, for all you time and effort you were rewarded with a paltry £102, which I understand leaves you considerably out of pocket.  I hope if/when you wiin the orignal claim you will be seeking recompense, read this

https://www.citizensadvice.org.uk/law-and-courts/legal-system/taking-legal-action/small-claims/making-a-small-claim/  

Le_Kirk

Well done, what a shame the judge (who sounds like a nice one) didn't strike out the original claim for you but still a good day all round.