CCJ from civil enforcement limited for a pcn...offer sent via email. Do I settle prior to hearing?

abisharpe1989

Hi, 
I am limited to my legal knowledge so any help advice would be brilliant.
Long story short I have unfairly been handed a CCJ from CEL. I have paid the ccj off (as I panicked and just wanted it off my record ASAP or the worst case scenario have a settled ccj) I have sent off and paid for a set aside which is due in court on the 6th July. CEL have emailed me which I have only just received which states they will not be attending court,  "judgment for the Claimant in this matter be set aside forthwith, proceedings in the action are dismissed and each party shall bear its own costs of this application and the claim in general." 
My main question is should I accept this but obviously not get any money back, which is over £500. (The ccj was £225 and then the set aside fee) or do I go to court (via phone) which they won't attend?
Am I likely to still come out with the same outcome or am I likely to loose?
Help!
Many thanks 
Abi 

KeithP

This forum is about parking tickets.

Your questions have absolutely nothing to do with parking tickets.

Perhaps for the purely legal answers you are looking for, you would be best asking on a much more legally focused forum. Maybe LegalBeagles.

henrik777

No idea. You've said very little of note.

Why did you get a ccj. Ignored court papers or didn't get any (if not why not) ? 

What is the basis of the application? What is your priority, no ccj or getting justice ?

Is that letter actually an offer to consent ?  It reads like they should refund all payments excluding the fee.

abisharpe1989

Sorry I tried to make the post as short as possible without going into the background of the ccj. This is my witness statement regarding the matter. 

1. County Court Judgement.

1. On the 11th May 2020 I came to the understanding that I had a CCJ on my credit file. This had been issued on the 30th March 2020. This claim had not been served to my current address and therefore I was unaware of the CCJ against me. I have since found out this was served at a previous ###. However I had moved to my in laws house, ###, for a short period before purchasing our house #### in September 2019. In support of this I can provide confirmation from ### City council showing my updated details for the purpose of paying council tax.

1. After moving into our new house, whilst I was heavily pregnant with my second child, we had essential work to improve the house to ensure it was safe and clean for my young son and my unborn child. I received a letter from my in law’s address. This letter dated in September, was from DRP stating I owed for several fines from my place of work as a nurse at the ##### Hospital.

2. I immediately phoned DRP on the date I received the letter on the 10th September and was met with a very unhelpful and aggressive employee. During the conversation I stated that I never received evidence of said fines.

3. I updated the DRP on the 10th September with my new address and stated I was Mrs ####and #### was my maiden name and also correspondence should go to ####.

4. Whilst having a conversation with DRP I requested to have the evidence sent through to me via email, which I was met with more aggression. Later I realised no response or email had been sent. I had also requested whilst on the phone that the information be sent to me via post, which again did not come to fruition.

5. Due to not receiving any email I took it upon myself to write to the Civil Enforcement ltd Liverpool in a letter covering my new address and updated surname. Again I was met with no response.

6. Due to being heavily pregnant in September 2019, and moving into a new house that required essential work to live in, the V5 book was sent off later than planned in the October of 2019. 

7. I had set up postal redirection for all our post should it have ended up at #### I did not receive any further information. 

8. Both the V5 and my driving licence have been in my married name and our new address for a considerable amount of time. As shown in the attached evidence. 

9. In November 2019 I unfortunately had a traumatic birth with my second child and as I’m sure you can appreciate matters of everyday life change with a new born.

10. Since September 2019 I had not received any further correspondence regarding the fine’s issued to me at my place of work.

11. I believe the claimant has behaved unreasonably in pursuing this county court judgement against me without ensuring they held the defendants current and correct contact details. Which were given on two separate occasions. According to publicly available information my circumstances are far from being unique. The claimant’s persistent failure to use correct and current addresses results in an unnecessary burden for individuals and the justice system across the country. This practice has come under stipulation on the 23rd December 2016 with the ministry of Justice announcing new measures to protect consumers from debt claims. (see evidence). It was stated by Justice Minister Sir Oliver Heald: “It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgements. 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”. 

12. As stated in the Civil Procedure 6.9 it requires that “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 defendants current residence or place of business (‘current address’). 

13. Following the phone call and letter sent from the defendant to the claimant with updated information, very reasonable and simple steps would have quickly rectified the above issues. However even if this wasn’t the case there are ways and means found easily, to provide the claimant with both confirmation that the address they had was no longer where the defendant resides, and information they needed to aquire a current address.  

14. On the basis held above I argue that the claimant did not fulfil their duty to update the defendants current address that was given. Following that, the claimant did not attempt to or take reasonable measures to ensure they had my updated details when issuing the county court judgement on the 30th March 2020. The defendant’s details were there to be found if alternative methods had been used.

15. Considering the above I was unable to defend this claim properly. I therefore believe that the county court judgement against me was issued incorrectly and therefore should be set aside. 

16. I believe I have made a reasonable case as I have applied for this set aside application extremely promptly, within 24 hours of finding the CCJ on my file. Also within this time I have contacted the claimant and paid the £278.98 via the phone. Due to the current global pandemic I was unable to speak to any representatives.

17. This payment was made as it has caused me excessive stress and undue upset, on top of what already is a very stressful and upsetting time with this global pandemic.

Do you think I have a reasonable chance at winning or should I settle with what they have put forward?
Thanks for any help 

henrik777

Winning is always at the risk of losing.

That being said, the steps you took to inform them of the current address are absolute gold and i would say you're chances, based on what you have written in your witness statement are pretty high. Of course you must understand and be able to articulate the argument on service in case you get a judge that's not understanding the argument or just pretty much not in favour of you.

The more solid your evidence backing up the communications to both of them are the better, although they're not going to be thereto cast any doubt.

abisharpe1989

Thats what I am concerned about is becoming nervous on the phone on the day, or having a less than understanding judge. 
Am I right in thinking I will not receive any money back as this was one of their points : "Each party shall bear its own costs of this application and the claim in general."
Or could I get back the money I have paid for the set aside as it will not be going to hearing?

henrik777

You're on the phone so reading it shouldn't be a big deal.

My reading of the  "Each party shall bear its own costs of this application and the claim in general." is that you'd get the money paid refunded as it is not a "cost" in the case or the application. Makes me wonder if the person who made the offer even knows it has been paid.

abisharpe1989

I have minimal legal understanding so the jargon really throws me. But hopefully that will be the case, thanks very much for your help. I will contact them tomorrow and hopefully get a clearer idea of what to do.

henrik777

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 sentxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. 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.

Coupon-mad

abisharpe1989 said:

Or could I get back the money I have paid for the set aside as it will not be going to hearing?

No.  From my reading of what's happened, you've already paid £255 for a hearing to set aside the CCJ and have a chance that the Judge might order CEL to pay that back to you!

IMHO it is a no-brainer to carry on.   I can't see why you would agree to lose your £255 and not have a chance to ask the Judge to award it back to you - and there's more. 

In fact, why not send the court a draft order and submission to suggest that the claim itself was exaggerated and tainted by an abuse of process from the start, and that the claim should also be struck out and that CEL should be ordered to repay you the sum you paid them in a panic in May?  Worth a try.  

bargepole reported a similar case to our email group, which has just happened and it went like this (bargepole's words):

I had a telephone hearing with Willesden County Court last week, applying for a set aside of a Judgment.
The D had been working away from home for an extended period, and had missed the Claim Form and subsequent Default Judgment. DCB Legal had then passed it to DCBL for enforcement (total of over £1,200), and they had obtained a High Court Writ.

I drafted a submission for the Judge, applying for the Judgment to be set aside and the Writ stayed. I also submitted that the entire claim should be struck out as an abuse of process, because they had added £60 to each of the £100 PCNs, so in this instance the add-ons were more than 50% of the total claimed. I included DJ Grand’s Southampton judgment, and various other striking out orders. Also a Draft Order, which appears to have been copied into the official Order.

The Judge agreed with all of it – happy days!

The D has agreed that this can be shared.

The order is uploaded below, along with the submission made.  The DRAFT ORDER was more or less word for word what Willesden Court used.

I've also merged the Willesden Order with all the other useful strike outs, into one document that this OP can use to attach to his/her new submission and Draft Order, to show this Judge what other courts are doing.  

The fact you paid them was because you were intimidated (Jeez I really wish you hadn't - big mistake and you might not get it back...but worth a try based on what happened at Willesden).  You never know how your Judge will view this. 

I would NOT accept CEL's pathetic 'offer'.  They are trying to avoid this scenario and your £255 fee!

henrik777

Much harder to get costs for a 13.3 set aside. Mind you if they're booting the claim out they've got to really 

Nice work