BW Legal Letter, confused about what stage I'm at!

KeithP

Paragraph numbering is just for reference purposes.
It should not try and indicate any relationship between paragraphs.

It is often suggested here that simple sequential numbering is used.
E.g. look at the paragraph numbering (apart from the quoted documents within it) in that bailii decision you have linked to.

Johnersh

Keep in the paragraph numbers from that judgment and, if you wish, quote the key sentences to make the point. 

3.3  I will rely upon Marshall & Rankine v Maggs  [2006] EWCA Civ 20 (25 January 2006)  to support this claim. In particular paras 68-90 per Dyson LJ. 

68.     ... As a matter of the ordinary meaning of words, to say "I know X" entails the proposition that "X is true". We do not see how the phrase "last known residence" can be extended to an address at which the individual to be served has never resided.

69. We accept that the rules should, if possible, be interpreted in a practical way which promotes certainty and minimises the risk of satellite litigation. This does not, however, warrant rewriting the rules so as to make them bear a meaning which they plainly do not have. Nor do we see how interpolating the words "or reasonably believed" in the phrase "the address known to be last residence of the individual" adds to certainty or reduces the risk of satellite litigation. 

69. It follows in our judgment that the judge was right to hold that service was not effected on the defendant's last known residence for the simple reason that he had never resided at 47 Hays Mews.

The Claimant has not met the service requirements of CPR 6.9 and 7.5. Respectively:
A. service has not been effected at a valid address and,
B. for want of valid service, these proceedings have not been served (at all) within 4 months of issue.

**note Marshall is the same consolidated case as collier v Robinson to which you also refer. 

nosferatu1001

OP - when writing this you need to see that "set aside" has one meaning, and "dismissed" another. Setting aside the judgment allows the claim to be restarted. 
Dismissing the claim means it is dead and gone. 
The set aside is automatic, as the claim was not served
The claim is dead, as the claim was not served within 4 months and the claimant did not apply for extension.

Two different things. 

RidgebackPlanter

OK, thank you so much for all your help on this.... I'm losing the will to live with it, it's just so time consuming! (honestly @Johnersh I can't imagine being a solicitor - I have so much respect for your profession!). 

Is this WS at a point I can't send it:

I, 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. XXXX)  Judgment dated 18/10/2018 be set aside as the claim was not served correctly, and the claim be dismissed as the Claimant did not apply for extension within 4 months.

 

2.     I am seeking a mandatory set aside on the grounds of  CPR 13.2 as the judgment was served to XXXX 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 mail returned 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 ever seen the original claim form. 

 

3.3  In support of the request for a mandatory set-aside I will rely upon Marshall & Rankine v Maggs  [2006] EWCA Civ 20 (25 January 2006). [1]   Specifically paras 68 – 70 which are inclusive of the following key points:

 

68.     ... As a matter of the ordinary meaning of words, to say "I know X" entails the proposition that "X is true". We do not see how the phrase "last known residence" can be extended to an address at which the individual to be served has never resided.

69. We accept that the rules should, if possible, be interpreted in a practical way which promotes certainty and minimises the risk of satellite litigation. This does not, however, warrant rewriting the rules so as to make them bear a meaning which they plainly do not have. Nor do we see how interpolating the words "or reasonably believed" in the phrase "the address known to be last residence of the individual" adds to certainty or reduces the risk of satellite litigation. 

70. It follows in our judgment that the judge was right to hold that service was not effected on the defendant's last known residence for the simple reason that he had never resided at 47 Hays Mews.

 

 

3.3 In support of the request that the claim be dismissed due to claim not being served within 4 months and the claimant having failed to apply for an extension I rely again upon Marshall & Rankine v Maggs  [2006] EWCA Civ 20 (25 January 2006), specifically paras 100-105 which are inclusive of the following key points:

 

100. Service of the claim form is a crucial step in the proceedings. The rules are designed to ensure, so far as possible, that the claim form is brought to the attention of the defendant, and where he is represented, his legal representatives. Normally, this must be done within 4 months of the date of issue. CPR 7.6 permits an extension of time for service. If an application to extend time is made after the time for service has expired, the CPR 7.6(3) pre-conditions must be satisfied.

 

101. […] If a claimant purports to serve on an address which he mistakenly believes is the last known residence of the defendant, it is therefore necessary to consider the reasonableness of his belief that the address is indeed the defendant's last known residence.

 

102. […] In many cases, the claimant will know the address for certain. Where the position is less clear, a direct request of the defendant, or his legal representatives (if they do not have instructions to accept service) may yield an answer. Other enquiries may have to be made.

 

103. But the present case shows how dangerous it can be to make assumptions. In our judgment, the first claimant did not have a reasonable basis for concluding that 47 Hays Mews was the defendant's last known residence. He did not know that it was his last known residence. He assumed that it was. He had no real basis for believing that it was the defendant's residence.

 

104. […]  As the judge pointed out at para 77 of his judgment, there were other steps that the claimants could have taken if time had permitted: see para 89 above. Since the defendant was the director of a number of companies, another possible step would have been to carry out an on-line search of the Companies House directors' database.

 

105. Exercising the discretion given by CPR 7.6(2) afresh, we conclude that this is not a case in which it would be right to extend time for service of the claim form. It follows that the claimant's appeal must be dismissed.

 

 

 

3.4 The claimant has not met the service requirements of CPR 6.9 and 7.5. Respectively:

A . the service was defective and

B.   it follows that the claim was never served within 4 months of issue, such that the claim form has expired

 

 

4.    Citing CPR 6.9(3), 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. 

4.3 For clarity, below is a table summarizing 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	XXXX
November 2017 to  June 2018	XXXX
June 2018 to October 2018	XXXX
November 2018 to Present	XXXX

 

 

4.4 I  rely upon the following authorities to support that claim is defective as it was not served to a “last known address” :

-  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.

 

 

 

 

Signed:  ___________________________________

 

---

[1] https://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2006/20.html&query=marshall+and+rankine+and+maggs&method=boolean

RidgebackPlanter

I've left in 104. above because I'm also a small business owner and, although I'm a sole trader rather than the director of a limited company, HMRC would absolutely always have had an up to date address for me. 

nosferatu1001

Check your spelling. At least one errant US "z" in there. 

2.     I am seeking a mandatory set aside on the grounds of  CPR 13.2 as the judgment was served to XXXX 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. 
In bold shoudl this not be claim?
In italics I would stick with one way of saying the claim form was sent to the wrong address, and that would be "sent". Served has a specific meaning and to my understanding by using an address you never lived at the claim was never served, soi I would make it explicit
Claim was sent to Wrong_address
CLaim was therefore never served
Claim has therefore died

Johnersh

That'll do. 

As long as its clear what you're asking for, the basis on which you're asking for it and you understand the key points you make, you should be fine. 

RidgebackPlanter

Coupon-mad said:

Are the 2nd and 3rd PCNs about the same car park, same car, same details just different PCN dates?  Let's the the CCJ set aside first but it is worth us & you knowing if the other two are about the same facts and alleged breach, then there is a doctrine called 'cause of action estoppel' that means they should have brought the whole case in one claim. 

But DON'T point that out yet in case at the CCJ set aside they make an application to re-file the first claim and add the two other PCNs.

OK, court fees paid last week and my case has been sent to my local county court hearing centre - now I wait for the hearing date and can move on to the next fun and games: the second claim from BWL.

@Coupon-mad I'm interested in what you say above as the other claim by BWL has now arrived by post (they obviously have my updated address from the conversations regarding the CCJ). The previous SARs to the PPC confirm that this claim is for an additional 2 PCN's, same carpark, same car, but 6 months and one year BEFORE the PCN which ended at the CCJ stage. They are asking for £300 in total for this claim. 
- I have requested the 30 day hold on this claim whilst I seek legal advice.
- I believe that next I do the AOS should I choose to defend it (I'm weighing up which will cause me less stress, just paying or fighting)
- Then I will draft my defence and email is as suggested on the link in the NEWBIES stickie. 
Is that all correct? Is there anywhere I can find out more on the "cause of action estoppel" and should this affect the defence I write? 

KeithP

- I have requested the 30 day hold on this claim whilst I seek legal advice.

I don't think they have to delay things because you are seeking legal advice.
They are however obliged to delay the issuance of a claim by thirty days if you are seeking debt advice.

RidgebackPlanter

@KeithP Oh, ok that's different to what they said on the phone but hey just used the phrase "putting the claim on hold". I imagine they will have already issued the claim back in 2016 and/or 2017 so I'm not sure what that means! Either way, if I'm going to fight it, I'll do my AOS asap.