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

Coupon-mad

. My housemate and I shared an internet contract 2015/16 before moving out. He continued this contract. Could this be how BWL traced me to his address in 2018?! Bizarre. Is this something I should mention in my set aside request? 

Yes, yes and more yes.  I think you are right and it is shocking that a person can get a CCJ as a result of such a lax !!!!!!-up with data.

RidgebackPlanter

@Coupon-mad apologies, I think I used the wrong term. I don't mean defence, I mean set aside request. I'm reading the two linked threads and doing lots of copy and pasting....and then lots of changing of details and adding bits. Will upload here when I'm done

Johnersh

@RidgebackPlanter I will say it again.
If you never receive a claim form AND that has occurred because you *never* lived at the address to which it was sent, that cannot be valid service.

The reasons for that are reasonably obvious, when you think about it. Why is it mandatory, because the Court of Appeal have answered this in their carefully reasoned decision in Marshall that I linked you to.

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. 

My secondary point is that, once the judgment is set aside, some judges simply direct that the claim is served to the correct address. Often the defendant will formerly have lived at the address it was sent to. 

But if a claim is not correctly served within 4 months it cannot be spontaneously resurrected. Since the o/p has never lived there, there is no question that it was ever a last address within the meaning of the rule. 

If the claim form has never been served, nor time extended to do so, it has expired. They will have to start again if they want to pursue it. 

A judge could exercise discretion on this latter point, potentially, and dispense with the need for service, but (a) the claimant should cross apply if they seek such an order and (b) that would only effect things going forward - I don't see that there is any discretion on the set aside of the judgment. 

nosferatu1001

So to emplhasise the above: the CPR13.2 mandatory set aside reason is the fact you never lived at the address they sent the claim form to. 
The authority is what you should cite and has been given to you to use. You must use it in your N244 application.

If the court accepts the above, and they dont really have a choice in the matter, then as Jonnersh points out - the claim is, technically, dead. This is because a claim form must be served within 4 months, and if it isnt, the claim dies. 
You could in your draft order, the 6 points we normally recommend you send in WORD format so the court can edit it, then take on Jonnersh second point which is that the claim should be dismissed, as the time to serve the claim has expired

RidgebackPlanter

OK, here's what I've got to far. Any constructive criticism would be welcome!! The case studies of each CPR stated I have kept separately as it didn't seem like the WS was the right point for this? Let me know if I'm wrong. 

DRAFT ORDER

Upon reading the defendant’s application dated March 5th 2021

 

It is ordered that:

 

1. The default judgment dated 18/10/2018 be set aside.

 

2. Seeking Defendant’s costs in any event.

 

3. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4pm on <CONFUSED WHAT DATE GOES HERE> paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 and the claim shall be struck out.

 

4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defense by 4pm <CONFUSED WHAT DATE GOES HERE>

 

5. Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 plus the Defendant's costs for attending the hearing.

 

6. All enforcement be put on hold pending the outcome of the application.

 

7.  That this claim died when it wasn’t served properly and the 4 months time period from the initial alleged offence expired years ago and the Claimant hasn’t sought to extend time for service. 

WITNESS STATEMENT

I, XXXX of XXXXX 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.

 

2.     I am seeking a mandatory set aside on the grounds of  CPR 13.2 as the judgment was served to XXXXX, XXX XXX. 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. I elaborate on the timings between judgment and first hearing from the claimant in paragraph 5 below. 

 

 

3.     As I did not give an address to the claimant at which I could be served, primarily because I was not asked, CPR 6.9 applies. The claimant, having not obtained an address directly from myself, and having obtained an address from a 3rd party quite some time ago and received no response, did not have the requisite knowledge nor perform the requisite "reasonable diligence" required to find my correct address in order to serve the claim form. Furthermore, the address to which the CCJ was served is only known to me as it is the residence of a former housemate of mine. We lived together for 12 months in 2015-16, I then moved to a London address and he moved to XXXXXXX. I have no idea how the claimant found this address, nor how they came to link me to it. I find it shocking that a person can get a CCJ as a result of such a lax error with personal data and there is no feasible way that the address the claimant used could bt constituted my “last known address”. 

3.1 In my defense will be stating the following cases 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)

 

 

4.     Under CRP 7.5 I also submit that the Judgment should be set aside and that the claim in fact died when it wasn’t served correctly and the claimant hasn’t sought to extend time for service. 

4.1 In my defense I will be stating Marshall & Rankine v Maggs  [2006] EWCA Civ 20 (25 January 2006)  to support this claim. 

 

 

5.     The Claimant successfully contacted me with a debt collection letter, but no mention of the judgment on 5th February 2021 at the my correct address: XXXXX, thus proving that an accurate tracing search could have taken place much earlier in order alert me to the Judgment. I have owned this property since November 2018. Prior to this I was living at my parents address and would have been easily contactable/traceable. 

5.1 I then had to submit multiple subject access requests to the claimant and was told about   the judgment on 25th February 2021. I searched for proof of this through Experian but could find none (my credit score was 996 and had not been affected). I searched for multiple addresses over the last 5 years on TrustOnline and still could find nothing. 

5.2 Eventually, after additional SARs, on March 1st 2021 I was told the address the judgment was sent to was XXXXX (the incorrect address) – and then understood why it wasn’t showing up on my record. 

5.3 As soon as the I found out about the Judgment I acted as quickly as able,  awaiting responses via email from the Claimant and calling multiple times to piece together the information. I have been seeking advice from the multiple organizations regarding legal advice and have behaved with the best of intentions. I would like to state that I have never and would never purposefully ignore a Judgment and regard this courts’ time with the utmost respect. 

 

 

6.    I also submit that the Judgment be set aside under CRP 13.2 as I will also be contesting the Claimant’s original claim. The reason being that the original PCN was never received either as a notice to driver nor as a notice to keeper. Upon receiving the particulars of the claim through an SAR to Norwich Traffic Control Ltd on 13th February 2021 I found out that it was given in May 2017 and an NTK was originally sent to XXXX -  an address I vacated 2 years prior, in July 2015. Currently I am awaiting the full keeper details of the registration number in question from the DVLA. This will dictate when I updated my address and I hope to use this in my defence if needed. They have told me this will take 30 days and I am expecting to receive it in early April. 

 

 

7.     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.

 

8.     Upon receiving no reply I followed this up with a telephone request on 8th March 2021  to the  Claimant inviting them to consent to set aside the judgment due to the reasons in paragraph 2. 

 

9.     The Claimant turned down my request.

 

10.  I therefore respectfully request that the court sets aside judgment in this claim and declares the claim dead.

 

 

Statement of truth

I, XXXXXXX, The Defendant, believe the facts stated within this Witness Statement to be true 

 

 

Signed:  ___________________________________

 

RidgebackPlanter

I know I need to do a draft defence as well, haven't quite got my ahead around how that differs from the above. But I'll keep reading the newbie stickie and will post that when I can.

Ralph-y

these threads may help

direct link to court section in newbies thread
.
https://forums.moneysavingexpert.com/discussion/comment/64350585/#Comment_64350585

and  

https://forums.moneysavingexpert.com/discussion/6108153/suggested-template-defence-to-adapt-for-all-parking-charge-cases-where-they-add-false-admin-costs#latest

https://forums.moneysavingexpert.com/discussion/6130456/telephone-hearings-re-parking-firm-claims-can-we-all-discuss-strategy-and-outcomes-here/p1

Ralph

RidgebackPlanter

Hi @Ralph-y thanks for these. But I thought I wasn't at the point of defending the original PCNs yet? I'm just at the point of setting the CCJ aside.... am I confused? Do they need to be submitted at the same time? 

Redx

That statement of truth does not seem correct to me , they changed it 11 months ago

Umkomaas

<CONFUSED WHAT DATE GOES HERE> 

They are left for the Judge to type in (that's why you forward it in Word to allow for editing by the DJ). 

defense

You've used that horror three times. You need to put it right!