DCBL legal CCJ saga (case won)

Coupon-mad

Am i missing anything ? 

I would cite CPR 13.2 (mandatory set aside, as in your case) and 13.3 (discretionary set aside, where there are good prospects of a successful defence to the claim and a good reason to set the CCJ aside anyway, as a safety net) to remind the Judge that due to the described situation, the claim was defectively served.  I would add that this is often the case with parking firms, sometimes deliberately or negligently failing to check addresses because they know that 85% will lead to default judgments in full (including the false added costs).  This practice was identified by the Ministry of Justice:

https://consult.justice.gov.uk/digital-communications/default-county-court-judgments-2/supporting_documents/defaultcountycourtjudgmentsconsultation.pdf

''There were over 1.1 million County Court judgments in 2016/2017, of which the vast majority – 85% – resulted in a default judgment.''
"Ministry of Justice officials have discussed the current process around County Court judgments, including concern that some creditors may be deliberately using incorrect addresses, with a wide range of stakeholders representing the advice sector, claimant organisations and government departments."
"Almost all the case studies cited on unfair County Court judgments centred on unpaid parking charges incurred in private residential or business car parks. [...] The Department for Communities and Local Government (DCLG) is reforming parking practices and has already taken steps to tackle rogue private parking operators [...].  DCLG is fully aware of the concerns related to County Court judgments that follow parking charges and is considering how they can deliver standardised practice across all parking companies, eliminating unfair charges and reducing the instances of claims where the consumer may be unaware of a parking charge being applied." 

The DCLG is now the MHCLG and they are pressing ahead with a new framework, relating to the new 2019 Act designed to curb rogue parking firms:

https://www.gov.uk/government/consultations/parking-code-enforcement-framework/outcome/parking-code-enforcement-framework-consultation-response


Add all that in.

Jsalomonuk

Thanks so much
I will type up my official WS this afternoon. And post 

Jsalomonuk

Hi all so below is what i plan to mail over today 

 

Case Reference - ********

 

Witness Statement

 

Updated timeline

 

14/02/19 Defendant parked in London in an area managed by Capital Car Parks (NOT the Claimant)

06/06/19 part exchanged the vehicle in question for a new one and transferred the VC5
06/06/19-  02/06/20 Defendant moved around the country with work in hotels and short lets (Defendant works in film industry)
02/06/20 Defendant moved to a permanent new address and updated details on the electoral roll and relevant bodies as evidenced from Credit reference agency. Fig 1&2

24/08/20 Claimant Company is incorporated, Claimant not party to the original claimed breach of contract and no debt was assigned. Fig 3

28/10/20 Defendant received a debt collector letter from DCBL debt on behalf of UKPC Defendant was fully able to be found and contacted at the correct address as evidenced by DCBL  having contacted Defendant at the address shown on credit file.

07/11/20 DCBL legal raise a court claim against the defendant at the old address

12/12/20 CCJ issued in default

14/12/20 The defendant received an alert on credit referencing website out about CCJ

05/01/21 – Set Aside filed with help from CAB

10/01/21 – Defendant sought further assistance to understand the case.as new facts become known.

Summary

The claimant has never received any contact from defendant which should have brought into question the defendants address, the claimant was relying on address details over 18 months old from a completely different legal entity.

Due to the described situation, the claim was defectively served and should be considered to be set aside pursuant to CPR 13.2 

 This is often the case with parking firms, who sometimes deliberately or negligently failing to check addresses because they know that 85% will lead to default judgments in full (including the false added costs).  This practice was identified by the Ministry of Justice:

https://consult.justice.gov.uk/digital-communications/default-county-court-judgments-2/supporting_documents/defaultcountycourtjudgmentsconsultation.pdf

 

''There were over 1.1 million County Court judgments in 2016/2017, of which the vast majority – 85% – resulted in a default judgment.''
"Ministry of Justice officials have discussed the current process around County Court judgments, including concern that some creditors may be deliberately using incorrect addresses, with a wide range of stakeholders representing the advice sector, claimant organisations and government departments."
"Almost all the case studies cited on unfair County Court judgments centred on unpaid parking charges incurred in private residential or business car parks. [...] The Department for Communities and Local Government (DCLG) is reforming parking practices and has already taken steps to tackle rogue private parking operators [...].  DCLG is fully aware of the concerns related to County Court judgments that follow parking charges and is considering how they can deliver standardised practice across all parking companies, eliminating unfair charges and reducing the instances of claims where the consumer may be unaware of a parking charge being applied." 

The DCLG is now the MHCLG and they are pressing ahead with a new framework, relating to the new 2019 Act designed to curb rogue parking firms:

https://www.gov.uk/government/consultations/parking-code-enforcement-if rheframework/outcome/parking-code-enforcement-framework-consultation-response

 Further more  as per CPR13.3 where the defendant has a prospect of a successful defence to the claim and a good reason to set the CCJ aside .Defendant calls the courts attention to the fact that the claimant had not legal basis for which to bring the claim, and the claimant and their legal representatives have been fully aware that no debt was assigned and continued to pursue the claim wasting both the courts and defendants time.

Le_Kirk

06/06/19 part exchanged the vehicle in question for a new one and transferred the VC5

It's a V5C.

This is often the case with parking firms, who sometimes deliberately or negligently failing failed to check addresses because they know that 85% will lead to default judgments in full (including the false added costs).  This practice was identified by the Ministry of Justice:

Witness statements should be written in the first person, i.e. "I" not "the defendant"

Coupon-mad

on behalf of UKPC

The PPC is not UKPC, is it?  Or do you mean that DCBL found you in a different parking case, so they could have found you for this case?  If so, make that clear because at the moment it is not clear to the Judge what you mean and if you mean a different claimant managed to find your new address using DCBL.

You need to add the usual headings and statement of truth as you see on any other WS example, and every paragraph needs a paragraph number.  Is this your full WS and evidence you want to rely upon for the (first) set aside hearing, or for the (later, if they proceed) PCN hearing?

You need to also ask for your costs and remind the court somewhere in the WS (not just in the timeline) that DCBL had your correct address and explain what you mean about UKPC (another parking firm).

Jsalomonuk

This is just for the set aside, 
I was pointing out that I was able to found via a trace during the period leading up to the claim being filed.

I have asked to court to take into account my learning disabilities as a reasonable adjustment so hopefully they will understand s few grammatical / structural errors in my statement.

Coupon-mad

OK I understand but you need to explain that UKPC are another parking firm, because a Judge won't know that.

Jsalomonuk

Thanks will do.
My hearing is in 2 weeks via the online system,
Something I'm confused about is the claimants solicitors putting together a pack for the claim

Once I've mailed across the WS to both the court and DCBlegal is there anything else I need to do ?
Many thanks

Le_Kirk

Jsalomonuk said:

Something I'm confused about is the claimants solicitors putting together a pack for the claim

Once I've mailed across the WS to both the court and DCB legal is there anything else I need to do ?

What does it say on your notice of allocation about filing and serving witness statements and evidence?  Does it say you have to liaise with the claimant or their solicitor?

Jsalomonuk

So I've received DCBL's defence as below

 The facts and matters

set out in this statement are within my own knowledge unless otherwise stated and I believe them to be

true. Where I refer to information supplied by others, the source of the information is identified; facts and

matters derived from other sources are true to the best of my knowledge and belief.

2. I confirm I have reviewed case management systems operated by Direct Collection Bailiffs Limited

(“DCBL”) and my company. I have also reviewed documents provided by the Claimant. All of which are

contemporaneous records of incoming and outgoing correspondence and telephone calls. I am able to make

this Witness Statement from my review.

Preliminary Issue

3. It is noted that this Claim was issued in the name of Capital Car Park Control Ltd, however this should

have been issued in the name of the sole trading company Terry Szmidt T/A Capital Car Park Control.

 
There has been no prejudice caused to the Defendant as they would be in the same position had the claim

commenced in the correct Claimant name.

4. “Terry Szmidt T/A Capital Car Park Control” formed a limited company “Capital Car Park Control Ltd” on

24 August 2020, the intent being to assign all historic debts to the limited company. Owing to an error, a

batch of unassigned debt was pursued by the limited Company and therefore the Claimant seeks an Order

to amend the Claimant name to “Terry Szmidt T/A Capital Car Park Control”.

The Parties

5. The Claimant offers private car park management services to private landowners; primarily to manage the

way in which motorists are permitted to park whilst on their private land. The Claimant’s services can

include issuing parking charge notices to any vehicles parked in a way the private landowner does not

permit.

6. At all material times, the Claimant was accredited by the Accredited Trade Association known as the

British Parking Association (“ATA”), which is one of the two ATAs serving the parking sector. The ATA

19

has a Code of Practice (“COP”) that its members are expected to adhere to; and failing which they face

potential sanctions. Given the Claimant’s membership; it was evidently operating in accordance with the

COP.

7. In order to obtain Registered Keeper details from the Driver and Vehicle Licensing Agency (“DVLA”) it is

a requirement that the operator be a member of one of the two ATAs. It is therefore essential to the

Claimant’s business to ensure it complies with the COP.

8. The Defendant is the recipient of a Parking Charge Notice (“PCN”) issued by the Claimant; the details of

which are set out below.

Background

9. The Claimant issued a PCN (“Charge”) to a vehicle (“Vehicle”) with registration details listed below:

PCN No. Location VRN Issue Date Reason for Issue

54446 Phoenix Avenue,

Greenwich, SE10OEU

13/02/2019 Parked in a permit holder only area

without clearly displaying a valid

parking permit.

10. At the time of issue; the Claimant was instructed by the owner of the Land (“Landowner”) to manage

parking on the Land. A copy of the agreement with the Landowner (“Landowner Agreement”) is exhibited

to this Statement at “EXHIBIT 1”.

11. At the time of issue, the Claimant was prominently displaying signs on the Land stipulating the terms of

parking. A copy of the content of the signs is exhibited to this Statement at “EXHIBIT 2”. The signs

formed the basis of the Contract with the Driver (“Contract”).

12. The following was a term of the Contract: -

“Permit Holders Only. All vehicles must display a valid parking permit where necessary which is

to be displayed clearly in the front windscreen”

13. In parking the Vehicle on the Land, the Driver accepted the Contract, with the ‘parking service’ being the

consideration. It is evident from the photographic evidence exhibited to this Statement at “EXHIBIT 3”

that the Driver failed to adhere to the terms of the Contract as described above, thus breaching the Contract.

14. The Contract provides that a charge is payable by the Driver if it is breached: with payment falling due

within 28 days. The Contract (i.e. the signs) was prominently displayed on the Land.

15. In order to issue PCNs, the Claimant requests the details of the Registered Keeper from the DVLA pursuant

to Schedule 4 of the Protection of Freedoms Act 2012 (“the Act”). Upon receipt of those details,

notification of the PCN is sent to the Keeper via the post in accordance with paragraph 9 of the Act.

16. A copy of the Parking Charge Notice is exhibited to this Witness Statement at “EXHIBIT 4”, together with

the Notice to Keeper and Letter Before Action sent.

17. The Defendant is the Registered Keeper of the Vehicle and is presumed to be the ‘Keeper’ for the purposes

of POFA. As a result, a Notice to Keeper was sent to the Defendant within the relevant timeframe in

accordance with POFA and is exhibited to this Statement at “EXHIBIT 4”. The Defendant has not ‘proven

otherwise’ and is therefore pursued as the ‘Keeper’.

20

18. In the alternative, the Claimant reasonably believes that the Defendant was the Driver. The Defendant has

been given ample opportunity to nominate a Driver (if it was not them) but has not. If the Defendant was

not the Driver, I respectfully submit they would have done so.

Steps taken to recover the debt

19. The Claimant initially instructed DCBL to commence debt recovery action and letters were sent to the

Defendant. Copies of the letters are exhibited at “EXHIBIT 5”.

20. The Claimant then instructed my firm to issue court proceedings. A Letter of Claim was sent to the

Defendant on 05/10/2020 in compliance with the Pre-Action Protocol for Debt Claims. A copy of the

Letter of Claim is also exhibited at “EXHIBIT 6”.

21. The letters referred to above were not returned undelivered, however, due to no contact being received

from the Defendant a trace was conducted prior to the issuing of court proceedings. The trace confirmed

that the address of ********t which the claim was issued was

most likely to be the Defendant’s residential address at that time.

22. As the Defendant failed to pay the sums due, the Claimant issued court proceedings in order to recover the

money owed. Following the Claim being issued, there was no response to the Claim Form and the same

was not returned undelivered. Accordingly, Judgment in default was granted on 10/12/2020, payable

forthwith.

Application to set aside Judgment

23. I confirm I have read the application notice filed by the Defendant. In response to the issues raised, I would

say as follows: -

a. The Claim Form was correctly served at the Defendant’s last known address pursuant to CPR 6.9.

Pursuant to CPR 6.9(3), the Claimant took all reasonable steps to ascertain the Defendant’s current

address by conducting a trace and this trace result provided the Claimant with ‘knowledge’ of the

Defendant’s address. Furthermore, my firm have not been made aware by the Court that the Claim

Form has been returned as undelivered or “gone away”;

b. The Judgment was a regular Judgment, pursuant to CPR 12.3;

c. As the Defendant failed to respond to the Claim Form, an application should also have been made

for relief from sanction pursuant to CPR 3.9, as set out in Redbourne Group Ltd -v- Fairgate

Development Limited [2017] EWHC 1223 (TCC). No such application has been made;

d. In any event, I respectfully refer the Court to the case of Akram v Adam [2004] EWCA Civ 1601,

where the Court of Appeal held that, where service had been effected in accordance with the rules

and default judgment was subsequently entered, the defendant was not entitled to have that

judgment set aside as of right under CPR 13.2, even when he claimed to have had no notice of the

proceedings until after judgment had been entered against him. Further in Wards Solicitors -v-

Hendawi [2018] EWHC 1907 (Ch) it was confirmed that although the fact that a Defendant never

received the Claim Form is a relevant factor in deciding whether as a matter of discretion to set

aside a default judgment, on its own it is not enough;

e. Pursuant to CPR 13.3(2), considering whether the application to set aside Judgment was made

promptly, it is the Claimant’s submission that there has been an unreasonable delay. The Court’s

21

attention is drawn to the case of Core-Export SPA and others v Yang Ming Marine Transportation

Corp and another [2020] EWHC 425 (Comm) where it was held that 23 days or more was too long

a delay before making the application;

f. The Defendant has no real prospect of successfully defending the Claim on the basis that: -

i. The Defendant does not dispute that they were the Registered Keeper or Driver of the

Vehicle;

ii. The signs exhibited at “EXHIBIT 2” outlined the terms of parking and the Defendant was

on notice of the Terms and Conditions upon entering the land. On each occasion, the

Defendant breached the terms of parking resulting in the PCN being issued;

iii. A Parking Charge Notice and Notice to Keeper was sent to the Defendant following the

contravention, putting them on notice of the Parking Charge;

iv. The Defendant has had ample time to challenge the PCNs and / or request evidence in

support of them, if there was any doubt regarding their liability. However, no challenges

have previously been raised, despite correspondence being sent to the Defendant by the

Claimant at "*************" the address provided

by the DVLA and the address confirmed on the trace;

v. The Defendant makes reference to a PCN that is not subject to this Claim and how DCBL

were able to trace them at the correct address. It is reasonable to suggest that the Defendant

had updated their address with the DVLA for the other PCN not subject to this Claim. Had

the Defendant updated their address prior to 13/02/2019, we may not have been in this

position now;

vi. The Defendant denies receiving documents and alleges they were therefore unable to

respond. I submit that a Parking Charge Notice and Notice to Keeper were sent to the

address registered with the DVLA, the onus is upon the Defendant to keep their details up

to date with the DVLA. It is respectfully submitted that the Defendant was placed on

notice and failed to respond or pay;

vii. The Defendant did not respond to any letters sent by DCBL and therefore, the Claimant

did not hold the Defendant new address. The letter enclosed within the Defendant’s

Application from DCBL is in relation to a different matter. The trace confirmed that the

address of ***** at which the claim was

issued was most likely to be the Defendant’s residential address at that time with a score of

58 linked by a current account. It is evident the Defendant still had links to the property

24. For all of the reasons outlined in this Witness Statement, I believe that the Defendant’s application to set

aside Judgment should be dismissed.

Costs

25. I also respectfully seek an Order that the Defendant do pay the Claimant’s legal costs incurred as a result of

the application made on the basis of their unreasonable conduct to date. Had the Defendant responded to

appeal response or Letter before Claim, these costs could have been avoided. The costs of opposing this

application are £156, which is £130 + VAT for the advocate’s fee for attending the hearing.

So there a lot here for me to get my head around.