VCS CCJ successfully set aside Leeds Crown Street

Ferrybird

Hi all,
I have a familiar story - credit rating plummeted, checked credit report, surprise CCJ etc. I had already applied for a set aside hearing before finding this forum. My telephone hearing is this week and I need to submit my documents on Monday. I have read 'Newbies' (repeatedly - its sinking in at last) and lots of other threads, plus posts by Henrik777. Thank you so much to everyone who gives their time and advice so freely, it has helped me feel less despairing although I'm still pretty frazzled and not sleeping well.

I was wondering if people would be kind enough to look over my main document? The court has asked for "a skeleton arguments or written submissions which shall be limited to 6 single pages" - there is no reference to a witness statement and separate skeleton arguments, so I have combined both as this is what the claimant seems to have done in their documents.
Briefly the circumstances of my case are (I actually only found out what the claim related to 2 days ago):
Someone else was driving the car. They parked and paid using 'parkopedia' app. The app defaulted to an old reg rather than the reg of my car. I had not updated my V5C when I moved 5 years ago (now done this after reading this forum) so all correspondence went to an old address. I'd updated everything else including electoral role and driving license. 
Here is what I have written........

 

CLAIMANT: Vehicle Control Services Limited

- V-

DEFENDANT: XXXXX

 

I XXXX am the defendant in this matter. I am unrepresented, with no experience of court procedures. Please excuse my inexperience if this is reflected in my submitted documentation and oral argument.

This is my written submission in support of my application dated 1st August 2020. I would like to respectfully request that the court:

a.    Set aside the default judgment dated 29th April 2019 as it was defectively served using an old address.

b.    Make an order for the claimant to pay the defendant £255 as reimbursement for the set aside fee.


SKELETON ARGUMENTS & WRITTEN SUBMISSIONS

Introduction

1)    I was the registered keeper of the vehicle at the time of the alleged offence.

2)    I understand that the Claimant obtained a default judgement against me as the Defendant on 29th April 2019. I am aware that the Claimant is Vehicle Control Services Limited, and that the assumed claim is in respect of unpaid Parking Charge Notice (PCN) issued on 5th October 2018.

Service of claim form

3)    The claim form was not served at my current address, and I thus was not aware of the Default Judgement until 26th July 2020 when I obtained a copy of my credit report; as found in Schedule (X)

4)    Documents supplied to me by the Claimant on 3/9/20 with regards to this hearing confirm that the claim form was issued to XXOldAddresssXX

5)    I took ownership of my current address at XXNew addressXX on the XX August 2015. In support of this I can provide a scanned copy of my mortgage agreement.

6)    I have resided at the property since September 2015 as evidenced by the utility bill in schedule (x).

7)    The DVLA was notified of my new address in October 2015 and an updated driving licence photo-card showing my new address was issued accordingly. A copy can be viewed in (X).

8)    Additionally, as can be seen from my credit report I left the electoral register at my previous address and joined at my current address in 2015

9)    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.

10)  I submit that the CCJ should be set aside pursuant to CPR 13.2 (a) as the claim form was never served, therefore The Claimant is not entitled to judgment and the court must set aside the claim.

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 acknowledgement 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 acknowledgement of service only if –
(a) the defendant has not filed an acknowledgement 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 acknowledgement of service is CPR 10.3 which states:
10.3
(1) The general rule is that the period for filing an acknowledgement 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 some time ago and received no response, did not have the requisite knowledge nor perform the requisite "reasonable diligence" needed 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."

The current CPR 6.9 (3) goes on to state

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).”

11) I have at no time tried to avoid paying for any known debt as is reflected in my credit report (schedule 1). Points 5, 6, 7 and 8 demonstrate that I made no attempts to avoid being located. I was available to be found via a tracing service (for example).

12) I propose that it would have been reasonable for the Claimant to infer that it was not my correct address when they received no response from the time of the alleged incident until the time that the claim was made.

13)  According to widely available information my circumstances are not unique. The parking industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country. I would like to highlight the following in support of this point:

a.    Former Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016.

b.    The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses."

The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. 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.”

c.     Further to the above in December 2017, The Right Honourable Dominic Raab in his role as Justice Minister launched a consultation on how CCJs are issued. This was prompted by concern that some companies were deliberately sending claims to consumers using incorrect addresses.

He commented “We want to protect vulnerable consumers from abuse by rogue companies that can destroy the credit rating of innocent people without them even knowing about it”

14)  If the court is not satisfied that my case meets the criteria relating to a mandatory order to set aside due to defective service according to CPR 13.2(a), I will say that I also meet the criteria for the CCJ to be set aside on the grounds of 13.3 (a) and (b) such being:
(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if – 
(a) the defendant has a real prospect of successfully defending the claim; or
(b) it appears to the court that there is some other good reason why - 
(i) the judgment should be set aside or varied; or
(ii) the defendant should be allowed to defend the claim.

(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

Promptness of the Application

14) With regards to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

a) I discovered a CCJ was lodged onto my credit file on the 26th July 2020.

b) On 27th July 2020 I contacted the County Court Business Centre by telephone to obtain relevant information relating to this default judgement.

C) On 1st August 2020 I have promptly submitted my case in order to set-aside this judgement.

Prospect of Success

15) Considering the above highlighted defective service, I was unable to defend this claim. I believe that the original Claim by the Claimant has no merit and should thus be dismissed. I understand that the issue to be determined today is whether the default judgment should be set aside, and not to produce a defence in response to the claim. However, I would like to offer for consideration some points which I may rely on for defence in order that the Court can consider my prospects of defending such a claim.

 16) 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 driver.

 17) 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’. At this juncture I neither accept nor deny that I was the driver on the day in question.

 18)  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 the Defendant. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement on 26th July 2020, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me.

 19)  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 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.

 a.     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

 20) 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 would ask the court of its own volition to strike out this claim and to order the Claimant to refund the Defendant's costs.

 

 

 

Coupon-mad

Very good effort.   You need to add a statement of truth and signature and date at the bottom.

Re this, there is more:

18)  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 the Defendant. Since I have not received any documentation from the Claimant prior to finding out about the Default Judgement on 26th July 2020, I submit the Claimant will not have complied with the requirements of the Act and thus cannot claim this charge against me.

The point is, regardless of dates, VCS have never used the POFA, never got the wording right and just 'assume the keeper was driving' which is the opposite of the keeper liability rights under the POFA.  Win that argument with the Judge and you CANNOT be held liable and hopefully they will also strike out the entire claim as having no prospects of success against a keeper who was not the driver.

Judges are not POFA experts.  We are!

Go to the Parking Prankster's case law (Google it) and grab the full transcripts to Excel v Smith (appeal case, so it's is 'persuasive' on Judges) and VCS v Quayle.  Read and understand and use them if you can get them on the 'up to six pages' if not then use Excel v Smith because that's an Appeal level case.

Ferrybird

Hi coupon-mad
Thank you very much for your comments.
I added the POFA bits tonight after reading another thread and definitely need to brush up my understanding. Your guidance is helpful. 

Ferrybird

I've been thinking over what @Coupon-mad said in the comments above. I'm hoping that I have sufficient grounds for a mandatory set aside, but I'd like to ensure I can argue my case for discretionary.
I'm interested in the comment:
"VCS have never used the POFA, never got the wording right and just 'assume the keeper was driving' which is the opposite of the keeper liability rights under the POFA"
Do VCS try to use POFA in court but fail due to poor wording? 

Overnight I was looking over the copies of the documents VCS sent me which includes the NTK. I can't see any glaring errors- however I was on a night shift. (I'm a nurse and I've worked 120hrs in the past 15 days and I'm currently on nights!) I'm trying to do as much reading before Thur (hearing) as possible but I'm feeling a bit frazzled. Any pointers would be greatly appreciated. I plan to go back over 'Newbies' if I get chance for a break tonight. 
I'll attach pictures of the NTK and sign too. 

Le_Kirk

Ferrybird said:

I'm trying to do as much reading before Thur (hearing) as possible but I'm feeling a bit frazzled. 

Your thread title says 18/09 for the hearing but in your post you say Thursday, which is 17th?  Don't mistake your actual hearing date!

Ferrybird

@Le_Kirk
 
....I need to go to bed!
It's Friday 18th! 

henrik777

5)    I took ownership of my current address at XXNew addressXX on the XX August 2015. In support of this I can provide a scanned copy of my mortgage agreement.

6)    I have resided at the property since September 2015 as evidenced by the utility bill in schedule (x).

7)    The DVLA was notified of my new address in October 2015 and an updated driving licence photo-card showing my new address was issued accordingly. A copy can be viewed in (X).

8)    Additionally, as can be seen from my credit report I left the electoral register at my previous address and joined at my current address in 2015

9)    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.

The big thing that appears to come from people attempting this argument is that Judges are under the impression that there is  continuing access to the DVLA database and any changes would almost automatically be communicated to the claimant.

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/455973/Annex_A_-_KADOE_Fee_Paying_Contract_V4.pdf

B5.2. The Customer may request Data relating to events that occurred on

the day that the request is made, or in the preceding 26 weeks.

I'm led to believe they can only access the data once per incident but cannot find authority to back that up.

Coupon-mad

That is definitely true but in my replies to the consultation on the Wider Framework to support the new PAS, I am suggesting that there needs to be a new, specific PAP for PPC cases, that requires PPCs to ask the DVLA again for the last known address of the data subject they previously had the address for under KADOE.   

I realise that would be a first, but an important step to prevent default CCJs.

And I am saying that a PPC must re-offer the Single Appeals Service at LBC stage, if not already used by the Defendant.

And I am suggesting that the DVLA are currently breaking the GDPR and DPA 2018, by failing to update all the address data of someone they KNOW has moved house.  When I complained to the DVLA this year, they told me that it's because the V5C Dept is not the same people as the driving licence Dept.  Not good enough, no excuse for breach of the data principles...that has to stop.

nosferatu1001

Driving licence is irrelevant. What matters is V5. When was V5 updated?

Coupon-mad

Point is though, it should not be irrelevant (If the DVLA complied with the GDPR data protection principles) and is good evidence for a Judge that the person did inform the DVLA.

Ferrybird

@henrik777 Although I had updated my driving licence and everything else (ctax, utilities, electoral roll) I did not update my V5C until two weeks ago. I did not realise the importance of this, so I am at fault in this respect. So even if they had accessed the date before the MCOL was issued my address was still 'wrong' according to DVLA. 
That's a good point @Coupon-mad about DVLA and GDPR. It seems wrong that consumers are punished as a consequence of fragmented admin systems.
Also, the case law you pointed out above was helpful but I had to omit this from my written submission as it was already 6 pages. Reading those has made me wonder about your comments about VCS not relying on POFA. I think in at least one of those cases, maybe both (I don't have them in front of me), the judge said something to the effect of 'if you'd complied with POFA things would have gone the claimants way'. Which makes me worry that in response to those cases they've tightened their compliance. Hence I was looking over the NTK and sign to try find ways they don't comply. 
I think as the person who was driving used the parkonomy app I will argue that it was impossible to comply with their (VCS) terms as per their signs as there is no ticket to physically display and their signs make no mention of the parkonomy app and entering correct VRN.
Thanks for your comments and nudging me in the right direction.