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BW Legal Letter, confused about what stage I'm at!
Comments
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UPDATE.
CCBC said that they cannot provide a copy of the original claim form but that they could email over the particulars of the claim. This is what they've just sent, there's no address so I still don't know whether it was sent to same address as the CCJ (incorrect address) or the old address (where I lived the year before).
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Get them to tell you the address. You need that address. TRhey can absolutely tell you that5
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!!!!!!:
CPR 5.4B and PD4.2A(c) absolutely entitle you to obtain from the court the claim form as a document the claimant intended you to have.
Ask them to provide it again. And ask the claimant sols to provide it again. This is ridiculous. But do not make the mistake of delaying the application much longer than necessary. Acting promptly is a virtue here.4 -
Called BLW again as they're the only ones who seem to be able to provide any details but have said they also cannot give provide me with the original claim form.
Here's their timeline:
- May 2017 - PPC file the original claim to Address B (where I HAVE LIVED but had moved a year previously)
- July 2018 - case handed to BWL legal who use Equifax for a "courtesy search" which gives them Address A (where HAVE NEVER LIVED)
The guy on the phone believed this is where the claim form and any subsequent paperwork about the court case will have been sent, but can't say for definite as they don't have access to the original claim form.
- September 2018 - forms regarding court case are sent to Address A
- October 2018 - CCJ issued in my name to address A.
- November 2018 - BWL receive mail returned stating defendant is not known at that address.
- November 2020 - Equifax provide them with follow up details of my current address which is where they successfully get in contact with me.
- February 2021 - BW Legal letter arrives starting this whole process.1 -
You need to be much tighter with terminology. To "file" means to lodge with the court. So what I think you mean is that the ppc corresponded with address B, where you no longer resided. Insofar as they can claim to have complied with pre-action enquiries, it was to that address.
But, as far as the court are concerned the claim form (which formally started court action for the first time) was served upon address A which is consistent with a judgment naming that address.
I reckon you should do a brand new statement setting out the position and your enquiries today. It's actually quite powerful evidence to say you've never had a claim form and no-one will provide you with one.
PS you don't need an original claim form (which again has a specific meaning and would require the court to seal one) , a copy of what was served on you is fine.
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There's a saying for contacting the courts.
If at first you get the chimp, try try again.4 -
OK third times a charm. Here's a new WS (please ignore any US spelling, this will be corrected). Ideally I'd like to submit this tomorrow as I'm aware time is ticking.
I, XXX of XXX, XXXXXX, being the Defendant in this case will state as follows:
1. I make this Witness Statement in support of the application for an order that the Judgment in this case (Claim No. XXXXX) Judgment dated 18/10/2018 be set aside.
2. I am seeking a mandatory set aside on the grounds of CPR 13.2 as the judgment was served to XXX and this is an address I have never lived at. Because of this error I had no knowledge of the Judgment served on 18th October 2018, until 25th February 2021 and therefore could not file an acknowledgement of service in a timely manner.
3. Upon calling the CCBC that same day (February 25th) there was much confusion and no CCJ could be found. I later checked with Experian and TrustOnline and still couldn’t find any Judgment on file. It would transpire that this was because it had all been served to an incorrect address.
3.1 Eventually, after multiple ignored emails I called the Claimant to get a full timeline of events. They are as follows:
- July 2018: Claimant uses Equifax for a "courtesy search" which gives the incorrect address of XXXX
- September 2018: forms regarding court case are sent to the incorrect address of XXXX.
- October 2018: CCJ issued in my name to incorrect address of XXXX
- November 2018: Claimant receives returned mail from XXXX stating Defendant is not known at that address.
- November 2020: Equifax provide them with follow up details of my correct current address, which is where they successfully get in contact with me.
- February 2021 - BW Legal debt collection letter arrives at my address thus alerting me to this issue.3.2 On calling the CCBC on March 8th 2021 in an attempt to get a copy of the original claim form I was denied. On requesting a copy from the Claimant I was also denied and have still have not seen the original claim form.
3.3 I will rely upon Marshall & Rankine v Maggs [2006] EWCA Civ 20 (25 January 2006) to support this claim. [1] Specifically paragraphs 67-70 and 100-105. It is also worth noting the constitution of the bench in that case. Lord Neuberger went on to become President of the Supreme Ct in England & Wales, before his tenure finished in 2017. It is an authority on exactly this point.
Thus, under CPR 7.5 I respectfully request that the Judgment should be set aside on the grounds that:
a. the service was defective
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b. it follows that the claim was never served within 4 months of issue, such that the claim form has expired
4. As I did not give an address to the claimant at which I could be served, primarily because I was never asked, CPR 6.9 applies. The claim is defective as the address to which it was served cannot in any feasible way be my “Usual or last known residence.”
4.1 Citing 6.9(3) I The claimant, having not obtained an address directly from myself, and instead having obtained an address incorrectly from a 3rd party quite some time ago and then having received no response, did not have the requisite knowledge nor perform the requisite "reasonable steps" required to find my correct address in order to serve the claim form.
4.2 I would also argue that on receiving mail from the incorrect address confirming I was not a resident there in November 2018, the Claimant should not have then waited for another 2 years to perform an additional search to obtain my correct address. Further evidence of a lack of the requisite "reasonable steps" to ascertain a correct address or feasible "alternative place" where service may have been effected.
4.3 For clarity, below is a table summarising my addresses from the date of the original PCN from the Claimant’s client of Norwich Traffic Control Ltd to present, any of which would constitute my last known address and none of which are associated with the judgment.
DATES OF TENANCY/MORTGAGE
DEFENDANT’S ADDRESS
October 2015 to October 2017
XXXXXX
November 2017 to June 2018
XXXXX
June 2018 to October 2018
XXXXX
November 2018 to Present
XXXXXX 4.3 I will rely upon the following authorities to support this point.:
- Collier v Williams [2006] 1 WLR 1945 (CA),
- 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)
5. On 5th March 2021 I made a written request to the Claimant inviting them to consent to set aside the judgment due to the reasons in paragraph 2. This email was ignored and therefore on 8th March 2021 made a telephone request with the same offer. The Claimant turned down my request.
Statement of truth
I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
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@RidgebackPlanter at para 3.3. You don't need to tell the court that Neuberger LJ is a big cheese, that was more for your benefit and, if necessary oral argument. He was also a sitting judge in Beavis fwiw.
At 4.3. You list some cases in support of "this point" without actually saying what that is. Is that the same point as the earlier case or a different one? You provide no indication as to what they say or which paras you refer to within them. We can't very well guess.
The MB case is nice, but the obvious point is that C can't have an extension of time to serve if he's never applied for one. Probably a point best made orally rather than giving C time to fix things...4 -
@Johnersh so if 3.3. simply reads like below, is that enough? It feels so brief.
3.3 I will rely upon Marshall & Rankine v Maggs [2006] EWCA Civ 20 (25 January 2006) to support this claim. [1] Under CPR 7.5 I respectfully request that the Judgment should be set aside on the grounds that:
a. the service was defective
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b. it follows that the claim was never served within 4 months of issue, such that the claim form has expired
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and 4.3 is actually meant to be 4.4 and it related to the points made in 4 and 4.1. Is it not clear enough to have it a subsection of paragraph 4? Maybe I should put it at the beginning and add it to point 4, rather than its own point at the end?0
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