DCBL legal CCJ saga (case won)

Jsalomonuk

Thanks guys, I also think quoting the 23 days is too long to apply for set aside when that was over the Christmas period and I need help as I have learning disabilities is quite a low blow , and claiming I was unreasonable in not responding to forms sent to an address I wasn't at, when their own evidence says I was communicated to on another matter over the same period at my correct address.

It appears they are trying to scare me with costs too.

Coupon-mad

Bluefeather said:

Hello
It's seems they are explaining to the court as response to the reasons that judgements be set aside where one the grounds is primacy of contract. Maybe not your strongest argument. 

As you have been advised the CPR13 is where you need the courts attention and try not to get led into an argument over the claimants title. A judge can substitute names at a hearing if it's obviously the same person with damages to be settled. 

This name changing is evidence of the incompetent administration that resulted in them not being to get notice to you. They couldn't even get their name right on a claim form so the court should not be surprised they didn't get the correct addresses for notice even though their contractors (DCBL) had it. 

Showing they are negligent and incompetent will sit well in any costs decisions. 

Please do not be combative over the claimants name. They will want to use up hearing time and goad you into appearing unreasonable. 

@Bluefeather, I disagree.

I recall that you have posted before that the Semark-Jullien case meant that the option to strike out cases has 'gone' and that advice wasn't correct either because that case is something and nothing and didn't decide either way.  So I find this a little concerning that you have posted  to put the OP off raising the fact that the Claim is from the wrong Clamant and the wring party has been processing DVLA data (not allowed).

I did not tell the OP to take up much time on that but it all needs to be said in the order I suggested. 

I didn't suggest being combative but the Judge needs to think about the fact this is the wrong Claimant, who has also not bothered to use the right address, and as such the fairest option with least cost  would be that the PPC may issue a fresh claim in the right name (to the right address) if they still think they have a claim after a fair exchange of information and evidence after a LBC, using the pre-action protocol.

IMHO this particular first claim is dead.  @Johnersh sent me this by pm the other week but I was too busy to respond:

I know I continue to 'bang the drum' but back on the point of defendants who were
1. never served with a claim form;
2. have a judgment set aside on that basis
3. When it is more than 4 months from issue of proceedings

There is yet further authority that the claim is stuffed. Both the case linked and those it refers to are of interest. 

In the below example the claimant was then out of time (totally). In most parking cases the claimant will just be able to issue afresh.
My point is that a DJ can't simply keep a defective claim in play if we can point to rules that restrict that. Further, it should make it easier for the defendant to ask for costs since the instant claim is then at an end (no reserving and rolling them over). 

https://www.civillitigationbrief.com/2021/04/19/another-actions-fails-because-of-late-service-of-the-claim-form-neither-cpr-3-9-or-3-10-can-dig-the-claimant-out-of-this-hole/

Johnersh

Can't be bothered to track back through 19 thread pages. But, are we now saying:

1.there is a default judgment against the op
2. The op has applied to set aside
3. In a witness statement (!!!!!!) the claimant suggests this doesn't really matter. 
My musings are as follows;
let's unpack this, shall we?

The limited company pursued unassigned debt. 
So it is admitted, in writing, that 
(I) the corporation obtained judgment against the defendant;
(II) that they were never entitled to that judgment never having transferred the debt; and
(iii) they still haven't transferred it from individual to themselves. 

The statement refers to such gems as "at all material times the claimant" but that's exactly the point. The claimant (ie the company) did not operate the car park at the time of the event. The individual did. So almost the entire premise of the statement is wrong, as they must recognise. 

It's trite law, but this is in no way merely administrative - these are law school fundamentals. See for example Salomon v A Salomon & Co Ltd (1897) and Macaura v Northern Insurance Ltd (1925). Macura is nicely illustrative - where an individual insured a sawmill in *his* name, not that of the company. When it burned down there was no insurance payment, the insured individual was a separate entity from the sawmill owned by the company. 

Shoulda Woulda Coulda - what *might* have occurred if proceedings were correctly issued in the correct name is irrelevant.

To substitute a party after proceedings without an application is clearly prejudicial to the defendant given where we are now at: the judgment is clearly defective and no steps have been taken to correct it. If they now issue and serve in the correct name to the correct address, the defendant will presumably respond. This is their error, but it's highly unlikely they'd get default judgment again, I suggest. 

The claimant now seeks an order without applying themselves for one. Err pay the fee, bro!

The reality is, that even if the claim was validly served (and I appreciate that this is disputed) given what the op has put on here appears in a witness statement by way of response, I'd suggest that there is an argument that this judgment should be set aside and the court invited to strike out the claim under cpr3 entirely. There should not have been a default judgment as it is accepted in evidence that no debt was ever due to the corporation. It follows also that the corporate claim has no prospect of success.

Even the statement filed is on behalf of the company and without adducing any evidence from the third party. 

The individual with a claim can issue fresh proceedings if he wishes to. His interest is not prejudiced by a strike out of the claimants case. In some senses its the neatest solution to this mess, not least because a new issue fee will be modest.

It's up to the op to choose his own arguments, but I would be asking for costs for unreasonable conduct.

This is not an argument that a commercial entity that has taken advice on incorporation and/or which is represented by legal professionals should be advising their client to run. They are well aware that these are separate entities. Mr Szmidt has likely transferred insurances and liabilities from his own name to the new corporate person exactly for this reason. 

This is their error. It is not capable of being swept under the rug as they invite the court to do. They should have agreed to the set aside and issued a fresh claim. They have wasted court time and resources. 

Finally the o/p should note that the court rules now require the court to take account of vulnerable witnesses which is a wide category, but may well include them if there are "communication or language difficulties (including literacy)" that is practice direction 1A.  If the claimant refers to unrealistic timescales, say so. 

Johnersh

One more... In Core Export v Yang Ming the delay of 23 days needs to be looked at in the context. If the judgment is referred to in full the position is clear. The judge found that the party in default had been aware of the claim since 2019. That's really not the case if you've never received the papers and you're not a commercial entity. The comparison is not a good one.

Coupon-mad

Nailed it, @Johnersh !  

I like this too:

The claimant now seeks an order without applying themselves for one. Err pay the fee, bro!

I felt it added insult to injury that DCBL thought it is OK to jump on the back of the hearing this OP has paid for, to try and slip through a change of Claimant.

Jsalomonuk

Thanks so much for this @Johnersh rsh and @Coupon-mad. 
I guess at this stage I wait until my hearing next week to cover the responses you've raised,  I will look further into the various areas you've mentioned, 

one thing i'd like some assistance with, is when i got my hearing notice i did email the court to say i was vulnerable at the time time as giving my details for the web hearing, i checked with the court but nothing about that was logged, but they did receive as they entered the other details from the email?  do i need to submit something else more formal in writing ? 

Many thanks

Jsalomonuk

Hi all so would the bellow be a reasonable summary of my response to some if their claims etc

Claimant claims defendant was unreasonable in not responding to letters sent to an address claimant was not at, it is shown in evidence that during the same period when contacted at the correct address about a separate parking matter the claimant fully engaged with the process and resolved the matter with assistance without the need for involvement of the court.

Claimant refers to Export v Yang Ming the delay of 23 days. If the judgment is referred to in full the position is clear. The judge found that the party in default had been aware of the claim since 2019. That is not the same in this case defendant never received the papers and is not a commercial entity. Furthermore as per CPR Part 1 where the defendant is vulnerable, the timeline is reasonable considering help was sought from a public body that was closed over the Christmas period from 14/12/20 to 04/01/21

Claimant is requesting an order for change of claimant, Defendant objects to the claimant using defendants hearing to submit such an order, and it is welcome to pay the court the correct fee and follow the correct court procedures, To substitute a party after proceedings without an application is clearly prejudicial to the defendant the judgment is clearly defective and no steps have been taken to correct it. If the claim is now issue and served the LBC in the correct name to the correct address, the defendant is happy to engage fully with the original contract holder to resolve this issue without further costs to either party.

The claimants name is not just an administrative issue and the defendant refers the court to Macaura v Northern Insurance Ltd (1925).  where an individual insured a sawmill in *his* name, not that of the company. When it burned down there was no insurance payment, the insured individual was a separate entity from the sawmill owned by the company. 

Claimant states that it is the responsibility of the defendant to keep its records updated with the DVLA, The DVLA states on its own website that it does not need to be notified if a move is temporary, The vehicle in question was sold before a permanent residence was secured and the records were fully updated with the DVLA.at that time and on every vehicle since.

Claimant refers to the claimant’s membership of the trade body yet passed on the defendants details to a new entity. This is a breach of the DPA 2018 is negligent data abuse.  Their Trade Body the BPA fully informed its members and held webinars and workshops about the changes that happened as a result of the GDPR in 2018.  This Claimant had no right to the defendants data, at all. 

Johnersh

The starting point is that

*D doesn't owe C and never has (D may owe mr szmidt some money). There is no case to answer to C.  Rather than opposing the application they should be consenting to it, in the circumstances. 

* C has made no application to substitute the parties under cpr 19.2 and there is no evidence before the county that Mr Szmidt would consent to the substitution proposed in any case. (NB the court does have the power to substitute even after a judgment). 

* C was not entitled to judgment having not served to a correct address and having failed to conduct adequate searches prior to commencing proceedings. 

* C now accepts the claim was wrongly issued by the company, which makes the judgment irregular in both respects.

Hence the request should be to set aside then strike, relying on their statement. 

The court will need to determine the issue on the day. The court cannot simply add a third party without his consent. The rules are clear.  Since he is entitled to issue a fresh claim and to serve it properly, if needs be. 

Coupon-mad

Don't forget to ask at the hearing at the end for your costs to be paid back by this wrongful Claimant.

Jsalomonuk

hi again

So going through the evidence that DCBL legal have entered, they have put in debt collection letters from DCBL enforcement send to the wrong address (which I previously had no access to), as proof of them chasing the "debt" and stated that my contact over that period at the correct address was over a separate issue, Surely this strengthens my argument that DCBL had my correct address as they themselves are introducing evidence that DCBL legal and DCBl enforcement are linked and were using the wrong address. 
they introduced this evidence but doesn't it confirm the very premise I started with ? 

Thabkn