Need help with CCJ Set Aside and issues relating to SAR

Jeff_Goldblum

Wonderful, as always, a massive help!! Can't thank you enough. Will be here to report how it went tomorrow!

Johnersh

Trying to track this back.

If they issued at different addresses at broadly the same time (? Do you know the dates of issue?) For at least one of those claims they knew or anticipated that you had moved away (if not both) as the car was presumably the same. 

The fact that newyln had no issues, shows how easy the search was. This needs to go, with your costs being paid, because I'm struggling to see how they can provide a legit explanation for how they brought proceedings suggesting your habitual address was at two locations. 

Jeff_Goldblum

Both CCJs were in early September 2020 on the exact same date.
Here is an excerpt from their case about the address fiasco.

29. Unfortunately, the aforementioned parking charge notice (XXX) when referred to GSL for pursuit was referred under the address of XXXX; as opposed to those which are the subject of this Claim being referred under the DVLA Address.

30. As a result of the separate addresses, these charges were assigned separate case files, namely GSL references XXXX and XXXX respectively, with XXXX being relevant to this Claim and XXXX and Claim Number XXXX (the “Other Claim”) to XXXX.

31. Prior to legal proceedings being issued and owing to the error, GSL first issued the Letters Before Claim (“LBCs”) for this Claim (to the DVLA Address) and the Other Claim (XXXX) on XX February, however both LBCs went without response from the Defendant.

32. GSL therefore conducted their own Experian trace on the Defendant at both the DVLA Address for this Claim and XXXX for the Other Claim. For both, the Experian trace was run on XXXXX MARCH 2020 (9 MONTHS AFTER I LEFT ADDRESS) and confirmed as of XXXX 2020, the Defendant may reside at XXXX as opposed the DVLA Address for this Claim and was confirmed as likely to be an active address for the Other Claim. Despite the LBCs being sent to both addresses, there was no response forthcoming from the Defendant.

33. The error resulted in the cases being considered in isolation as opposed to together, which resulted in the alternative place to effect service for this Claim was deemed to be the DVLA Address; whereas the Defendant’s active credit confirmation for XXXX matched the referred address, resulting in it being deemed the ‘last known address’ for the Defendant, which sets out the Claimant’s position for service in accordance with CPR 6.9 for both Claims.

34. As a result of the above determinations, for this Claim proceedings were issued at the DVLA Address on XX August 2020 and deemed served on the Defendant on XX August 2020. For the Other Claim, proceedings were issued at XXX on XX August 2020 and deemed served on XX August 2020. 26. As no response was received with respect to either Claim, Judgment was entered in default for both Claims on XX September 2020.

Jeff_Goldblum

They've also put me under strict proof for confirmation of address eg Utility bill but I don't actually have anything like this as I'm living with parents!

KeithP

Jeff_Goldblum said:

They've also put me under strict proof for confirmation of address eg Utility bill but I don't actually have anything like this as I'm living with parents!

Do you have a bank account with the right address on it?

Do you have a Driving Licence with the correct address on it?

Do you have any car insurance policy documentation with the correct address on it?

Do you have a mobile telephone contract with the correct address on it?

Do you have any imagination?

Coupon-mad

Your parents could write a brief witness statement (corroborating the dates and the addresses) and sign & date it under a statement of truth right now, and email it to you so if needed you can show it at the hearing if the Judge wants evidence.

What Gs have said simply confirms their errors.  They knew there were two addresses in play and just took a punt, yet Newlyn found out  which was right, very easily.  An Experian Trace costs from 28p (and alternatives, such as Equifax, cost 40p a unit) so why were further steps not taken, given they knew there was an error and electronic tracing services are easy to access and cheap as chips?

https://www.digitalmarketplace.service.gov.uk/g-cloud/services/435094443943409

Have @Johnersh's words (below) handy to guide you, as your crib sheet, as he is a solicitor and puts things in a succinct way that covers the crux of the issue for the Judge:

If they issued at different addresses at broadly the same time...for at least one of those claims they knew or anticipated that you had moved away (if not both) as the car was presumably the same. 

The fact that newyln had no issues, shows how easy the search was. This needs to go, with your costs being paid, because I'm struggling to see how they can provide a legit explanation for how they brought proceedings suggesting your habitual address was at two locations. 

Don't forget to ask for ALL your costs because this conduct, by a serial litigator and their robo-claim solicitors, must meet the high bar of unreasonableness, such that the Claimant should be ordered to repay your costs within xx days once the CCJs are set aside.

Johnersh

From Para 32 above it appears that they did have info from a credit check to establish D had left and resided elsewhere. Even on their own account it can't be the last known address, so I don't see that they were entitled to ask for default judgment. 

henrik777

Jeff_Goldblum said:

They've also put me under strict proof for confirmation of address eg Utility bill but I don't actually have anything like this as I'm living with parents!

You don't have to prove any address.

You have to show they had "reason to believe"

(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’).


Given you have evidence kindly provided by them that is not a significant hurdle for you.


The burden of proof is then on them to convince the court they follow all the steps required by CPR to allow a "last known address" to be used. Very much more difficult when you've used 2 different ones for 2 different claims at broadly the same time.

henrik777

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.





That will guide you through the rules but needs tweaking to suit your circumstances.

Johnersh

Well it goes a bit beyond that since the Claimant served 2 claims at 2 addresses then *on the same day* sought default judgment (form N205a) certifying that there was no response and where the notes for guidance point out the claim form must be served (presumably to the last known address).

Since that's a contradictory position, one of those certifications would have been obviously wrong - the request in respect of both claims was therefore to mislead the court. This shouldn't be taken lightly given the sums claimed in respect of each. 

Cs correspondence with D insinuates that D was avoiding the claim, but the failure to respond has a simpler explanation - it was going to an incorrect address and they should've redoubled their efforts to check. There's a 6 year limitation. There was no need to rush.