Mystery CCJ - any support appreciated

LJG83

Coupon-mad said:

There is a post by Johnersh last week with a suggested new point for a CCJ draft order.

I’ve tried to find it however struggling with the search facility - would you be able to point me in the right direction please Coupon-mad? 

Also, a question around my statement if it’s okay. I’ve simply stated that they served papers to the wrong address, and what my actual address is - however haven’t put why they’ll have done this (my car V5c not bring up to date) - should I include this in your opinion and hold my hands up for the start or wait for possible questioning? 

Obviously in leaving it out I’m trying to cover up that it’s partially my fault. 

Umkomaas

I’ve tried to find it however struggling with the search facility - would you be able to point me in the right direction please Coupon-mad? 

Unfortunately it's the same search facility we have to use, it's pretty poor. If you put 'Johnersh' into the search engine, it should find his posts where he has commented. Click on his username to get to his profile page, click on 'Replies' (on the l/h side of his page), then scroll down, which should show all the posts he has made in chronological order (latest from the top), then go through those. A ball ache, but we'd have to do the same. The slight blessing in regard to volume is that Johnersh hasn't made that many posts at the moment. 

Also, a question around my statement if it’s okay. I’ve simply stated that they served papers to the wrong address, and what my actual address is - however haven’t put why they’ll have done this (my car V5c not bring up to date) - should I include this in your opinion and hold my hands up for the start or wait for possible questioning? 

I wouldn't, Judges are more than capable of asking that question if they need an answer. The bottom line is that the papers were served to the wrong address - an automatic set aside criterion. PPCs and their legal firms have access to plenty of resources to enable them to acquire a current address. 

LJG83

Umkomaas said:

I’ve tried to find it however struggling with the search facility - would you be able to point me in the right direction please Coupon-mad? 

Unfortunately it's the same search facility we have to use, it's pretty poor. If you put 'Johnersh' into the search engine, it should find his posts where he has commented. Click on his username to get to his profile page, click on 'Replies' (on the l/h side of his page), then scroll down, which should show all the posts he has made in chronological order (latest from the top), then go through those. A ball ache, but we'd have to do the same. The slight blessing in regard to volume is that Johnersh hasn't made that many posts at the moment. 

Also, a question around my statement if it’s okay. I’ve simply stated that they served papers to the wrong address, and what my actual address is - however haven’t put why they’ll have done this (my car V5c not bring up to date) - should I include this in your opinion and hold my hands up for the start or wait for possible questioning? 

I wouldn't, Judges are more than capable of asking that question if they need an answer. The bottom line is that the papers were served to the wrong address - an automatic set aside criterion. PPCs and their legal firms have access to plenty of resources to enable them to acquire a current address. 

Thank you Umkomaas. Not sure if you know what Coupon-mad is referencing - if so does this look right? 

Johnersh said:

Not perfect, but something like this? 

UPON the application of the Defendant dated xx/xx/xx
AND UPON hearing from the agent for the Claimant and from the Defendant in person
AND UPON the court finding that the Claimant had failed to take the necessary steps required by CPR 6.9(3) and 6.9(4) before serving proceedings at a last known address
IT IS ORDERED THAT
1. The judgment dated xx/xx/xxxx be set aside
2. Pursuant to CPR 7.5, the claim issued on xx/xx/xx be struck out, the Claimant having failed to validly serve proceedings within 4 months of issue
3. The Defendant do provide the Claimant with an address for service within 7 days of this order, should the claimant wish to issue a new claim
5. The Claimant do pay the Defendant's costs of the application summarily assessed at £xxx. 

LJG83

Umkomaas said:

I’ve tried to find it however struggling with the search facility - would you be able to point me in the right direction please Coupon-mad? 

Unfortunately it's the same search facility we have to use, it's pretty poor. If you put 'Johnersh' into the search engine, it should find his posts where he has commented. Click on his username to get to his profile page, click on 'Replies' (on the l/h side of his page), then scroll down, which should show all the posts he has made in chronological order (latest from the top), then go through those. A ball ache, but we'd have to do the same. The slight blessing in regard to volume is that Johnersh hasn't made that many posts at the moment. 

Also, a question around my statement if it’s okay. I’ve simply stated that they served papers to the wrong address, and what my actual address is - however haven’t put why they’ll have done this (my car V5c not bring up to date) - should I include this in your opinion and hold my hands up for the start or wait for possible questioning? 

I wouldn't, Judges are more than capable of asking that question if they need an answer. The bottom line is that the papers were served to the wrong address - an automatic set aside criterion. PPCs and their legal firms have access to plenty of resources to enable them to acquire a current address. 

Thanks for the advice on the V5C too - this was my preferred approach 

nosferatu1001

To be clear
- they cant ask the DVLA more than once 
- so if they asked when it was correct and it later wasnt, thats unimportant - they had to check your address another way at that point.
For example
On 1.1.2015 they checked your address with the DVLA, and it was correct
on 1.1.2020 they file a court claim to the address they found 5 years ago, but youve moved
In this case, they had no reason to presume the address they had was still correct. That you did or didnt change your address on the V5C is UTTERLY irrelevant to this discussion, because they couldnt check with the DVLA - theyre supposed to use a tracing service. 
Does this make sense?

Umkomaas

LJG83 said:

Umkomaas said:

I’ve tried to find it however struggling with the search facility - would you be able to point me in the right direction please Coupon-mad? 

Unfortunately it's the same search facility we have to use, it's pretty poor. If you put 'Johnersh' into the search engine, it should find his posts where he has commented. Click on his username to get to his profile page, click on 'Replies' (on the l/h side of his page), then scroll down, which should show all the posts he has made in chronological order (latest from the top), then go through those. A ball ache, but we'd have to do the same. The slight blessing in regard to volume is that Johnersh hasn't made that many posts at the moment. 

Also, a question around my statement if it’s okay. I’ve simply stated that they served papers to the wrong address, and what my actual address is - however haven’t put why they’ll have done this (my car V5c not bring up to date) - should I include this in your opinion and hold my hands up for the start or wait for possible questioning? 

I wouldn't, Judges are more than capable of asking that question if they need an answer. The bottom line is that the papers were served to the wrong address - an automatic set aside criterion. PPCs and their legal firms have access to plenty of resources to enable them to acquire a current address. 

Thank you Umkomaas. Not sure if you know what Coupon-mad is referencing - if so does this look right? 

Johnersh said:

Not perfect, but something like this? 

UPON the application of the Defendant dated xx/xx/xx
AND UPON hearing from the agent for the Claimant and from the Defendant in person
AND UPON the court finding that the Claimant had failed to take the necessary steps required by CPR 6.9(3) and 6.9(4) before serving proceedings at a last known address
IT IS ORDERED THAT
1. The judgment dated xx/xx/xxxx be set aside
2. Pursuant to CPR 7.5, the claim issued on xx/xx/xx be struck out, the Claimant having failed to validly serve proceedings within 4 months of issue
3. The Defendant do provide the Claimant with an address for service within 7 days of this order, should the claimant wish to issue a new claim
5. The Claimant do pay the Defendant's costs of the application summarily assessed at £xxx. 

I can't be sure, but that looks a recent familiar input from @Johnersh - although you need to check that the CPR references are applicable to your case. I'm no legal expert, so i don't know, off the top of my head, what they refer to. 

Coupon-mad

Yes that is what I meant.  We were saying that Judges should be taking the view that a claim where service was held to be defective has not been served (there is just 4 months to SERVE a claim having applied to the courts.  Thus Judges should be 'invited to find' that the original claim is dead, but could issue Directions after the successful set aside, telling the D to confirm their correct address for service and then a new claim from the C can be served, if they decide to proceed. 

Then the D can properly defend and gets the usual stages including WS and evidence, stages that Judges have been bypassing in set aside cases which seems hugely unfair on Defendants.

henrik777

nosferatu1001 said:

To be clear
- they cant ask the DVLA more than once 
- so if they asked when it was correct and it later wasnt, thats unimportant - they had to check your address another way at that point.
For example
On 1.1.2015 they checked your address with the DVLA, and it was correct
on 1.1.2020 they file a court claim to the address they found 5 years ago, but youve moved
In this case, they had no reason to presume the address they had was still correct. That you did or didnt change your address on the V5C is UTTERLY irrelevant to this discussion, because they couldnt check with the DVLA - theyre supposed to use a tracing service. 
Does this make sense?

The rules state

"(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’)."

Thus it's not about what they can or can't assume but more about whether they have a reason to believe. In your example, had they sent a LBC and had no response, i would submit, that 5 years and no reply would amount to a "reason to believe" but had it been 5 weeks or so then most courts would say it doesn't.

LJG83

henrik777 said:

nosferatu1001 said:

To be clear
- they cant ask the DVLA more than once 
- so if they asked when it was correct and it later wasnt, thats unimportant - they had to check your address another way at that point.
For example
On 1.1.2015 they checked your address with the DVLA, and it was correct
on 1.1.2020 they file a court claim to the address they found 5 years ago, but youve moved
In this case, they had no reason to presume the address they had was still correct. That you did or didnt change your address on the V5C is UTTERLY irrelevant to this discussion, because they couldnt check with the DVLA - theyre supposed to use a tracing service. 
Does this make sense?

The rules state

"(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’)."

Thus it's not about what they can or can't assume but more about whether they have a reason to believe. In your example, had they sent a LBC and had no response, i would submit, that 5 years and no reply would amount to a "reason to believe" but had it been 5 weeks or so then most courts would say it doesn't.

henrik777 said:

nosferatu1001 said:

To be clear
- they cant ask the DVLA more than once 
- so if they asked when it was correct and it later wasnt, thats unimportant - they had to check your address another way at that point.
For example
On 1.1.2015 they checked your address with the DVLA, and it was correct
on 1.1.2020 they file a court claim to the address they found 5 years ago, but youve moved
In this case, they had no reason to presume the address they had was still correct. That you did or didnt change your address on the V5C is UTTERLY irrelevant to this discussion, because they couldnt check with the DVLA - theyre supposed to use a tracing service. 
Does this make sense?

The rules state

"(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’)."

Thus it's not about what they can or can't assume but more about whether they have a reason to believe. In your example, had they sent a LBC and had no response, i would submit, that 5 years and no reply would amount to a "reason to believe" but had it been 5 weeks or so then most courts would say it doesn't.

henrik777 said:

nosferatu1001 said:

To be clear
- they cant ask the DVLA more than once 
- so if they asked when it was correct and it later wasnt, thats unimportant - they had to check your address another way at that point.
For example
On 1.1.2015 they checked your address with the DVLA, and it was correct
on 1.1.2020 they file a court claim to the address they found 5 years ago, but youve moved
In this case, they had no reason to presume the address they had was still correct. That you did or didnt change your address on the V5C is UTTERLY irrelevant to this discussion, because they couldnt check with the DVLA - theyre supposed to use a tracing service. 
Does this make sense?

The rules state

"(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’)."

Thus it's not about what they can or can't assume but more about whether they have a reason to believe. In your example, had they sent a LBC and had no response, i would submit, that 5 years and no reply would amount to a "reason to believe" but had it been 5 weeks or so then most courts would say it doesn't.

henrik777 said:

nosferatu1001 said:

To be clear
- they cant ask the DVLA more than once 
- so if they asked when it was correct and it later wasnt, thats unimportant - they had to check your address another way at that point.
For example
On 1.1.2015 they checked your address with the DVLA, and it was correct
on 1.1.2020 they file a court claim to the address they found 5 years ago, but youve moved
In this case, they had no reason to presume the address they had was still correct. That you did or didnt change your address on the V5C is UTTERLY irrelevant to this discussion, because they couldnt check with the DVLA - theyre supposed to use a tracing service. 
Does this make sense?

The rules state

"(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’)."

Thus it's not about what they can or can't assume but more about whether they have a reason to believe. In your example, had they sent a LBC and had no response, i would submit, that 5 years and no reply would amount to a "reason to believe" but had it been 5 weeks or so then most courts would say it doesn't.

5 months in my case so you’d hope there is a strong argument they’ve not done enough. 

LJG83

Coupon-mad said:

Yes that is what I meant.  We were saying that Judges should be taking the view that a claim where service was held to be defective has not been served (there is just 4 months to SERVE a claim having applied to the courts.  Thus Judges should be 'invited to find' that the original claim is dead, but could issue Directions after the successful set aside, telling the D to confirm their correct address for service and then a new claim from the C can be served, if they decide to proceed. 

Then the D can properly defend and gets the usual stages including WS and evidence, stages that Judges have been bypassing in set aside cases which seems hugely unfair on Defendants.

Makes sense - thank you. Does the below look okay if you don’t mind quickly skimming it? 

DRAFT ORDER

IN THE COUNTY COURT AT: xxxxxx

VEHICLE CONTROL SERVICES LTD (Claimant)

And

MR ---- (Defendant)

CLAIM No: ---

UPON the application of the Defendant dated xx/xx/xxnn
AND UPON hearing from the agent for the Claimant and from the Defendant in person
AND UPON the court finding that the Claimant had failed to take the necessary steps required by CPR 6.9(3) and 6.9(4) before serving proceedings at a last known address

IT IS ORDERED that:

1. The default judgment dated XXX must be set aside judgement entered under Part 12 due to defective service under Rule 13.2 as it was not properly served to my current address.

2. Pursuant to CPR 7.5, the claim issued on xx/xx/xx be struck out, the Claimant having failed to validly serve proceedings within 4 months of issue.

3. The Defendant do provide the Claimant with an address for service within 7 days of this order, should the claimant wish to issue a new claim.

4. The Claimant do pay the Defendant's costs of the application summarily assessed at £255 as reimbursement for the set aside fee.

WITNESS STATEMENT 

1.1. I am XXX and I am the defendant in this matter. This is my supporting statement to my application dated XXX.