NHS appointment ParkingEYE CCJ Default Judgement Address - Second Address

lostCCJ · 27 February 2021 at 11:34PM

Oh dear - it sounds like I might have been decidedly unlucky in timing of moves etc. and mistaken in turning down the offer of a Tomlin order (I was worried about the court assuming I was merely credit record cleaning)

EEK!

I will put together an anonymous copy of my WS and an outline of my argument tomorrow and would really appreciate views on how to increase its chance of a set-aside. I hope that I have sufficient discretionary grounds if the lack of service isn't reliable.

Thanks for all your thoughts - I really appreciate it.

lostCCJ · 28 February 2021 at 12:06PM

OK, I've now properly read all that they had to say and I think my Mandatory argument as below. I struggle to see whether this is legally reasonable or wishful thinking on my part! Also, will I get a chance to argue this at the hearing or do I need to 'update' my witness statement [copied below].

My basic argument for the non-mandatory is around being in a delayed appointment and the NHS guidelines saying that's all you need to be (and also only to give fines to repeat offenders). Further, their signage is crap - and their submission is a 'signage plan' of what appears to be a different site. As you can see I added the 'standard' defences from the newbies' thread, too, but feel less confident in arguing these (especially as PE's response is detailed).

So I guess that I'm asking for is help to increase the chance that this results in a set aside. Surely people must move before CRAs are updated and they simply must be aware of it - that seems to be the strongest 'should have tried harder to find me despite finding two old addresses' argument?

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OUTLINE ARGUMENT FOR HEARING - HELP!?

Addresses + fact it’s possible to have lived at an address move out for 5 years and then return to it (in this case because of COVID financial stress made worse by this claim).

Mandatory [13.2]

CPR 6.9(3) says if the Claimant has “reason to believe” that a defendant is not resident at an address, they must trace the Defendant.
They admit “non-response” gave them this reason to believe in the case of DVLA address and thus logically must have done so in the case of A2.
The Claimant did nothing to ascertain that A2 was a current address. Indeed, by their own logic they had ascertained it was NOT a current address.
Thus, the Claimant had both reason to believe not only that neither address was current but that both addresses were NOT current.
Further, full details of the CRA report are not forthcoming from Claimant - just a line in a database on SAR. Were other addresses listed, for example? Is it sufficient effort to trace someone, indeed, how were they sure they traced the right person?
Here the CRA report gave an old address as the Defendant had moved regularly for work. Presumably, CRA reports take some months to update. In (23) of their response, the claimant freely states they deal with thousands of cases a month. It seems likely therefore that they are aware of this fact and that this precise situation will have occurred for the Claimant before.
Can it, then, be considered the “due diligence” required by [PARAGRAPH] to trace someone in a way that the Claimant knows is not consistently reliable?
So many other easily accessible means are available (see Exhibits x-x of witness statement) to trace the defendant.
Thus papers were served at an address known by the claimant not to be the last known address and thus mandatory set aside is required by CPR 13.2 under CPR 6.9.

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Thanks to

henrik777 for this:

Not in WS since found since: 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." These comments 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)

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lostCCJ · 28 February 2021 at 12:11PM

Redx said:
The fact is they should have initiated a trace , if they didn't , they failed , because it's a common and known issue they should have pre empted with a trace

Are there any good 'trace' arguments on here - because is a CRA 'initiating a trace'. Just having gestured towards doing something doesn't in my line of work, result in doing it! If I sign up for a gym but do not go to it, I do not get fit. It seems this will hand on whether one CRA check is the same as finding me/getting fit.

lostCCJ · 28 February 2021 at 12:13PM

Coupon-mad said:

The very fact they had two addresses meant they couldn't be certain which (if either of them) was correct, and shows they had not taken every step.

I like this argument and will add it - I missed it before - sorry! Where does it say they have to take 'every' step - it seems they only have to take 'a step' (see previous)

henrik777 · 28 February 2021 at 12:25PM

CPR 6.9(3) says if the Claimant has “reason to believe” that a defendant is not resident at an address, they must attempt to trace the Defendant.

Can it, then, be considered the “due diligence” required by [PARAGRAPH] to trace someone in a way that the Claimant knows is not consistently reliable?
reasonable steps

How i would paraphrase is.

They got an address from DVLA.

They had "reason to believe".

"the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’)."

They performed a CRA check and found a possible address. They could not confirm this address and could not use for service without the court granting permission.

Did they consider an alternative place or method of service ? (mandatory, needs an application)

If, and it's a big if, they followed all the steps required, they could use the last known address, which could include an address you no longer lived at,

lostCCJ · 28 February 2021 at 5:52PM

Thank you that makes sense and I really appreciate you taking the time to help me understand

lostCCJ · 7 May 2021 at 8:40AM

I'm very pleased to report that I had my telephone hearing and it was set aside without me having to say much at all. The (obviously annoyed) judge, asked PE to justify why they shouldn't grant it and the representative undid themselves by not having a clue about the case.

They have ordered it set aside. They have listed it on the small claims track. Does this mean I won't be able to claim costs?! I wasn't quick enough to ask this in the hearing. I'll do some reading of the newbies' thread and see what it suggests.

Thanks so much for all your help

Coupon-mad · 7 May 2021 at 12:10PM

If you didn't ask for your costs then you missed a trick and had to do that at the end of the hearing. Unless the Order that follows the hearing says anything about your costs then they are likely not in play at all and the case will now go forward with whatever directions the court issues (e.g. you having to defend the PCN now).