UK CPM - CCJ issued

hiphop99

henrik777 said:

I'll post more shortly, but i have to be the bearer of bad news.

This isn't a small claims track hearing as the case hasn't been allocated yet. 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27/pd_part27#3.1

Representation at a hearing

3.1 In this paragraph:

(1) a lawyer means a barrister, a solicitor or a legal executive employed by a solicitor or any other person authorised under the Legal Services Act 2007 to act as a litigator or advocate; and

(2) a lay representative means any other person.

3.2

(1) A party may present his own case at a hearing or a lawyer or lay representative may present it for him.

(2) The Lay Representatives (Right of Audience) Order 1999 provides that a lay representative may not exercise any right of audience:–

(a) where his client does not attend the hearing;

(b) at any stage after judgment; or

(c) on any appeal brought against any decision made by the district judge in the proceedings.

(3) However the court, exercising its general discretion to hear anybody, may hear a lay representative even in circumstances excluded by the Order.

(4) Any of its officers or employees may represent a corporate party.

http://www.legislation.gov.uk/uksi/1999/1225/made

Now in many cases it won't matter as nobody will notice or care, especially when the opponent is unrepresented, but if the judge shuts you down they are technically correct.

Wait what??? So I cannot represent her tomorrow???

henrik777

hiphop99 said:

henrik777 said:

I'll post more shortly, but i have to be the bearer of bad news.

This isn't a small claims track hearing as the case hasn't been allocated yet. 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part27/pd_part27#3.1

Representation at a hearing

3.1 In this paragraph:

(1) a lawyer means a barrister, a solicitor or a legal executive employed by a solicitor or any other person authorised under the Legal Services Act 2007 to act as a litigator or advocate; and

(2) a lay representative means any other person.

3.2

(1) A party may present his own case at a hearing or a lawyer or lay representative may present it for him.

(2) The Lay Representatives (Right of Audience) Order 1999 provides that a lay representative may not exercise any right of audience:–

(a) where his client does not attend the hearing;

(b) at any stage after judgment; or

(c) on any appeal brought against any decision made by the district judge in the proceedings.

(3) However the court, exercising its general discretion to hear anybody, may hear a lay representative even in circumstances excluded by the Order.

(4) Any of its officers or employees may represent a corporate party.

http://www.legislation.gov.uk/uksi/1999/1225/made

Now in many cases it won't matter as nobody will notice or care, especially when the opponent is unrepresented, but if the judge shuts you down they are technically correct.

Wait what??? So I cannot represent her tomorrow???

99/100 you will be able to but technically, no. If it were on the small claims track you would be perfectly entitled to do so, but without reaching the allocation stage it is not a small claim.

It's a remote possibility that you won't be allowed to speak but ....

Johnersh

Noted. It is technically after the judgment, too. 

Nevertheless, since the Claimant is not attending, they are not there to object.  Nothing to stop you passing notes of exactly what to say either... 

henrik777

The judgment should be set aside as the particulars of claim have not been served and thus the claimant was never entitled to default judgment.

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.

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

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’).

The claimant, or their legal team, clearly felt they had "reason to believe" that they had an old, or incorrect address as they have submitted to the court, xxxxxx, which states that they ran an Experian trace.

The claimant was contacted on,xxxx, by xxxxx and this is how the old address was obtained and not from DVLA as xxx was never the registered keeper. Further this should have alerted the claimant that when contacted, xxxx, did normally respond and that they did in fact have reason to believe they had an out of date address.




As the claimant had "reason to believe" the mandatory steps in 6.9(4) must be taken before using a last known address. Sajid -v- Nuur (Central London County court 30/7/18)

 (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).

The claimant has shown no evidence of taking any serious steps to locate xxxx and as such purported service is bad.


Richard Salter QC in Idemia France SAS v Decatur Europe Ltd & Ors [2019] EWHC 946 (Comm) (15 April 2019) said

The intention behind these substituted provisions of the CPR is plain. It is to provide a simple, clear and straightforward code relating to service, balancing the interests of claimants against the:

.. fundamental principle of our law that no one is to be found guilty or made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them ..[33]

Under that code, a claimant is entitled to serve a defendant at his "usual or last-known residence" within the jurisdiction. However, the claimant can only rely upon "last-known" if it he has no reason to believe that that is not still the defendant's usual residence. If the claimant does have reason to believe that the defendant is no longer usually resident at that address, the claimant cannot validly serve the defendant at that address, but must take reasonable steps to find out where the defendant does now live, or a place and/or method by which the proceedings may effectively be brought to the defendant's attention. If the claimant can ascertain the current address or a way in which the proceedings can effectively be brought to the defendant's attention, the claimant must apply to the court under CPR 6.15 for an order permitting service by an alternative method or at an alternative place. Only in the exceptional case where, having taken the required reasonable steps, the claimant cannot discover the defendant's current address or any alternative means of bringing the proceedings effectively to the defendant's attention, can the claimant revert to service at the "last-known" address of the defendant.

The scheme of this code gives rise to 2 subsidiary questions: first, what is the date by reference to which the claimant's knowledge and belief is to be assessed; and, secondly, what standard of "reason to believe" is required in order to trigger the procedure required by CPR6.9(3)?

With regard to the relevant date, questions of jurisdiction are normally to be determined by reference to the date of the commencement of proceedings, here 6 June 2018[34]. The reason for that is to enable the claimant to know at the time proceedings are commenced that they have been commenced on the right court. In accordance with that principle, in her recent judgment in the case of Tugushev v Orlov[35], Carr J held that:

The time for determination of [the defendant's] domicile or usual residence is the date of issue of the claim form.

The use of the date of the commencement of proceedings, however, makes much less practical sense in the context of the code which I have just described. In the present case, Idemia properly wrote pre-action letters. However, the position can better be tested by considering a claimant who has failed to take that sensible course, has issued proceedings believing that the defendant is usually resident at a particular address within the jurisdiction, but has thereafter expressly been told that the defendant has moved to a different address within the jurisdiction (which is supplied). Could it be right that that claimant could still validly serve at the original address as the "last-known" address, while actually knowing that it was no longer a valid address for the defendant? It seems to me that that is unlikely to have been what the framers of the code intended.

As is pointed out in the notes at paragraph 12.3.2 of Civil Procedure, a default judgment obtained after valid service under CPR 6.9 at the defendant's last-known address cannot be set aside as of right simply because the proceedings have not come to the attention of the defendant. Such a defendant must comply with CPR 13.3(1), and must satisfy the court that they have applied promptly and that their defence has a real prospect of success or that there is some other compelling reason why a trial should be conducted. That all suggests that the rules should be interpreted in a way which limits the circumstances in which valid service can be effected at an address which the claimant has reason to believe at the moment of service is no longer current.

As for what amounts to "reason to believe", it would not be helpful for me to attempt to gloss the words of the CPR. However, the fact that Idemia persisted in serving the present action at York Way, despite having been expressly told that Mr Rahman no longer lived there, may perhaps indicate their belief that claimants are entitled under CPR 6.9 to disregard what they are told by defendants about where they actually live, on the basis that defendants have an incentive to lie about such matters in order to evade service.

In my judgment, the wording and structure of the new code means that any such belief would be misconceived. There may, perhaps, be cases in which a claimant would be entitled to continue to believe (for the purposes of relying on an address as the "last-known" address) that a defendant continued to live at a particular address, despite that defendant's protestations to the contrary. But, in my judgment, such cases will be rare. The requirement under CPR 6.9(3) to "take reasonable steps to ascertain the address of the defendant's current residence" is not an onerous one. If, as in the present case, the defendant can be contacted, a simple first step would be to ask the defendant for their address. Claimants who choose not to take such reasonable steps, in the face of protestations by a defendant that the address which the claimant has for them is wrong, do so at their own risk.

The consequences of bad service is summed up by  LJ Treacy 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)."

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 they suspected or to quote cpr, had "reason to believe" xxx no longer resided at.

Add in your other bits at the required times.  (where i say claimant, respondent is more accurate but i'm sure the court will distinguish)

henrik777

www.bailii.org to print the cases off.

zhonguonuren

OP, say (very respectfully) your wife would be at a serious disadvantage if you were not able to speak for her, she is there with you but suffers from anxiety in these situations.  It does depend on the judge of course but this will be on tape and I think it would be seen as unreasonable not to allow you to help her.  

It’s daunting for most people but I hope she is ok.  Best of luck Zhong.  

hiphop99

Henrik - Thanks so much for that summary.

Just to ask - Salter/Treacey/McCombe - Should I be quoting these verbatim or just making mention of those?

Just wondering how I weave these into the conversation.

henrik777

You should quote exactly, if the judge needs it explained.

Don't be so relieved at the end that you forget to ask for costs.

hiphop99

Firstly, my HUGE thanks to everyone here.

Set Aside instantly.

I had pages and pages printed but Judge set it aside instantly and said the submission in January was robust and detailed enough.

He did say that just because you moved, that does not mean they were incorrect at serving at the last known address. However, he looked at what they served to that address and basically inferred it was dismal, lacked any detail and he seemed well aware of the antics of these scammers. He did not say anything much beyond that.

He mentioned the impact of a CCJ and the likelihood that anyone would rationally either challenge it or pay it - That led his thinking too in his decision to Set Aside.

He also said the fact that they are not here to defend any position says a lot too.

He has given them 4 weeks to reissue and he awarded £305 (£255+ £50 Conf Call) to us. He would not give costs for me and my morning off work as I was the representative.

Time for Round 2 UK CPM!

Johnersh

Awesome.

Reissue, not serve. So the claim is dead and they have to file a new claim form all over again? Nice. The correct order inmho. And presumably with the fee which that entails.

The idiots. They've already spent more than the face value of a £100 ticket and for what?  There's a decent chance they won't reissue, but keep an eye out.