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

RidgebackPlanter

Brilliant, thanks @KeithP and @Le_Kirk really helpful - I know how I'll be spending my evening!

Johnersh

... All the time remembering that you are inviting the court not to apply that test, because it was not served and has expired. 

This is totally your call, but on this occasion I might not serve a defence, lest the judge decides to simply set aside the judgment and order that the defence goes in.

Its worth preparing a defence to marshal your thoughts and in case you're asked to explain any anticipated defence, but that shouldn't be a consideration at a hearing on this basis. 

As an aside there is nothing to stop C issuing fresh proceedings and following procedure properly, so it's not the case that C would be denied access to justice if your application is granted. Whereas the argument goes that you are denied access to justice unless it is. 

nosferatu1001

As above

usually it dies no harm to file a draft defence

here, you don't want to. You want the court to only consider the auto set aside, and lead them along dismissing the claim

RidgebackPlanter

OK this is my updated WS that I'm hoping to send tomorrow (after a follow up call to BWL offering the voluntary set aside again as they've ignored my email). I'm thinking based on the above suggestions I might get rid of point 4 and the mention of CPR 13.3 altogether... @Johnersh and @nosferatu1001 what do you think? Does the mention of 13.3 have to be in there, or is showing I have "a real prospect of successfully defending the claim"  again giving the judge opportunity order the original claim be re-served to the correct address? 

WITNESS STATEMENT

I, XXX of XXX, XXXXXXX, 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. XXXXXXX)  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 XXXXXXX 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 my defence I state 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 CRP 7.5 I respectfully request that the Judgment should be set aside on the grounds that: 

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

 

 

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. Below is a table summarizing my addresses from the date of the original PCN 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

 

 

3.1 Furthermore, I only know the address to which the Judgment was served as it is the residence of a former housemate of mine. We lived together for 12 months in 2015-16, I then moved to the London address above and he moved to XXXXX. 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 be constituted my “last known address”. 

3.2  In my defence 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.   I also submit that the Judgment be set aside under CRP 13.2 as I will also be contesting the Claimant’s original claim as stipulated in my draft defence. 

 

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.

 

6.      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.

 

7.      The Claimant turned down my request.

 

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

 

 

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

KeithP

I suggest your paragraph 3.1 needs drastic pruning - if not entire removal.

It is not your job to guess how or why the Claimant sent anything to a wrong address.
Leave it to the Claimant to defend their actions.


Should CRP 7.5 be CPR 7.5?

Le_Kirk

In your paragraph 2 you assert that the judgment was served at an address where you have NEVER lived.  Two points; 1) where was the PCN, other documentation and the claim form served? 2) later in paragraph 3.1 you claim that you lived at that address as a house share?  It is imperative that you give the judge clear and accurate information.

RidgebackPlanter

Hi @Le_Kirk I've clearly not been clear so need to revisit this and try and word it clearly (although if I drop paragraph 3.1 then it leaves my old housemate out if it entirely which might be best). 

- The house-share was 2015-16, the PCN was 2017 and was sent to this old house share address (I'm awaiting DVLA paperwork to see why). 

- When we moved out of the house share in 2016 my housemate moved to his new address which was the address that the CCJ was then attributed to in October 2018. 

Coupon-mad

In my defence will be stating I will rely upon the following cases authorities to support this point. 

nosferatu1001

So OP be blooming clear
Did you ever live at that address? Yes or No. You keep mentioning a house share. It implies you lived there at some point
We dont mean did you live there at the time the claim form was issued - and it is where ther eCLAIM FORM went that matters, NOT the judgment, so correct that! - but did you EVER live there. If you can state no, you never ever lived at that address, then keep going

nosferatu1001

You are not filing a draft defence, so remove that reference
CPR13.3 is what deals with any good reason, whihch a good defence would fall under. But youre not filing under CPR13.3, so why mention a draft defence?

Your entire application is made solely under CPR13.2. Nothing else. 
4 -7 can be a single para. I wouldnt call them, either. 8 has already been covered at 2, of course, njot sure why you are repeating yourself