CCJ in default by Excel Parking, now dealt with by Elms Legal

Tycho6

I've read in some of the other threads linked to the Newbies post about making a SAR to the Claimant.  
Should I do this before I notify them I am applying to set aside?

henrik777

Call the DVLA and ask them for details on if/when.

Tycho6

Thank you, I'll give them a call tomorrow.
Once I have that my next step is:
- Call CCBC back and ask for a copy of the particulars of claim and the judgment
- Draft the N244, Draft Order, WS and Defence using the above information
- E-mail Elms saying I'll be making the application without consent unless they agree?

henrik777

henrik777 said:

Step 1

Get the claim form from the courts and/or claimant.

Step 2

Work out why you didn't get the claim form and form a timeline.

Parking date. Notice dates. Claim initiated date. CCJ awarded date.  House move dates. Record changed dates it's.

You'll need to investigate and ask the relevant people.

Step 3

Within 3 days of discovery, ask the claimant for consent. Even if they say no, you've given them notice of intent.

7 days to answer chase after 3/4 so they can't claim to have not gotten.

Step 4 

Application.



Obviously you need to complete step 2 so you give them a reason to consent in step 3.

Tycho6

Thank you henrik777 I've read that much today between work and domestic matters and it is really helpful to just have a 1, 2, 3 to do list to follow as I've been going down rabbit holes of how to word documents etc rather than concentrating on the steps to take to get there.

Tycho6

I have managed to get dates for when I changed CT, electoral roll, utilities, insurances, driver details.  I have not been able to get through to the DVLA yet to find out what searches/when were carried out against me and when the V5 was changed.
I have my credit reports which show the various times checks have been done against my at my current address (over 50!).
I have yet to draft the documents to apply to the court, but this is where I am at with an initial e-mail to Elms (should I cc it to Excel too?):

I am making an application to set aside a judgment in default for £185 by your client Excel Parking Services who have advised me you are now dealing with the matter.  The court reference is XXXX.  The address on the judgment is <old address>.

- I moved from the address given on the judgement in 2018 to <new address>, I updated my details on for Council Tax, the electoral register, with utilities and the DVLA. I was there to be found at my new address.  Indeed my credit report shows that over 50 searches have been carried out with credit reference agencies for me at my new address between 4/19 and the present.

- The judgment related to a claim for breach of contract of parking regulations at <place> on 5/10/19.

- Judgment was made in default on 18/3/20.

- I became aware of the CCJ on 2/3/21 whilst doing a credit check.

- I spoke to the Court on 3/3/21 and they provided me with the Claimant's details. I then contacted the Claimant who provided me with your details and stated that 5 letters were sent out.

- I have never receive any correspondence relating to this matter.  

- The address on the CCJ is my former address from 2018 and before.

- Sending 5 letters and receiving no response gives reason to believe that the address being used is an address which I no longer resided at.  The Claimant must take reasonable steps to ascertain the address of the current residence.  This was not done.  The Claim Form was therefore sent to an address you had no grounds to believe was my current address.

I will be making an application to Set Aside the Judgment in Default on the basis of CPR rule 13.2.  The Court must set aside the judgment as being wrongly entered due to the above facts meaning the requirements of rule 12.3(1)(a) or (b) were not met as there had been no service of the Claim Form because reasonable steps, as required in rule 6.9(3) were not taken to ascertain the address for service.

I will apply to have the judgment of 18/3/20 Set Aside. If your client consents to the application, pays the costs of my application of £100, and agrees to the claim being dismissed by midday on 12/3/21, I will not file a contested set aside. If they do not consent, or I do not receive a response I will file the contested application at that time. As the set aside is mandatory due to you and your clients failure to ensure good service, this will cost your client at least £255 for the hearing fee, plus  my costs of attendance of £95, and so my offer has real value to your client.

I look forward to hearing from you before midday on 12/3/21.

Am I on the right track with this?

henrik777

The Claim Form was therefore sent to an address your client had reason to believe was no longer my current address.


I will file the application requiring a hearing if no consent is reached at that time.

Tycho6

I have e-mailed them and received a response stating that they do not consent to the set aside.
I have drafted my WS (below) and the N244.
Do I need to use a specific form (N24?) for the draft Order?
Do I need to file anything else at this stage?

WITNESS STATEMENT

I am XXXX and I am the Defendant in this matter. This is the supporting Witness Statement to my application dated XXXX requesting to:

a. Set aside the Judgment in Default dated XXXX as it was not properly served at my current address;

b. Order the original claim to be dismissed;

c. Order the Claimant to pay the Defendant’s costs in this application of £255 as reimbursement for the Application to Set Aside fee.

BACKGROUND

1.1. I was the registered keeper of the vehicle XXXX at the time of the alleged breach of contract.  

1.2. I lived at XXXX from XXXX to XXXX.  I have lived at XXXX from XXXX to the present date.

1.3. Before moving house I arranged for my mail to be re-directed to my new address for 12 months.

1.4. Either before moving or in the weeks afterwards I updated my personal details for the purposes of Council Tax, on the Electoral Roll, with utility companies, DVLA, pension provide, insurances etc.  I was there to be found.

1.5. Between XXXX and the present there have been over 50 checks with Credit Reference Agencies against my name at my current address.

JUDGMENT IN DEFAULT

2.1. The Claimant obtained a Judgment in Default against me on XXXX.

2.2. I have not received any correspondence from the Claimant.  The Claim Form was not served at my current address and I was not aware of the alleged breach of contract or the Court proceedings.  

2.3. I discovered the existence of the Judgment in Default by chance when viewing my credit report on the evening of 2nd March 2021.  

2.4. At 08.32 on 3rd March 2021 I contacted the County Court Business Centre by telephone to obtain relevant information relating to the Judgement in Default.  I was told the Claimant is Excel Parking Services and that the matter related to a breach of contract at XXXX on XXXX.

2.5. At 11.39 on 3rd March 2021 I telephoned the Claimant and they confirmed the information I had received from the CCBC and also that 5 letters had been sent regarding a Penalty Notice reference XXXX.  I asked to discuss having the matter set aside.  They told me I would need to speak to XXXX who are now dealing with the matter.

2.6. At 08.31 on 4th March 2021 I telephoned the CCBC again and they e-mailed me the text of the Particulars of Claim.

2.7. On 7th March 2021 I texted the current owner of XXXX and enquired whether any post had been received for me over the relevant period of time.  They replied and confirmed that post had been received, but had been marked “returned to sender”.

APPLICATION TO SET ASIDE

3.1. On 5th March 2021 I sent an e-mail to the Claimant’s representatives and copied in the Claimant.  The e-mail outlined the above information and stated my intention to apply for the judgment to be set aside.  I invited them to consent to the application.  In that e-mail I said I would delay filing my application until 12th March 2021 to enable them to consider my request and respond.  The representative responded that their client would not consent to my application.  I thanked them for their response and said I would submit my application earlier than 12th March.  I requested that they forward me all the documentation in the case.

3.2. To date the only information I have about the claim is what I have obtained through my own endeavours.

3.3. To my knowledge the Claimant has made no attempt to enforce the Judgment in Default.

3.4. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held my correct contact details at the time of the claim.  The Claimant has not adhered to CPR Rule 6. 

3.4.1. The Claimant informed me they sent 5 letters.  The current occupy has informed me any letter received were returned to sender.  This gives the Claimant reason to believe that the address they used “is an address at which the defendant no longer resides”.  

3.4.2. The Claimant “must take reasonable steps to ascertain the address of the defendant’s current residence” (Rule 6.9(3)).  They did not.  By failing to do so this led to the Claim Form being incorrectly served to an old address and an irregular judgment. 

3.5. According to publicly available information the industry’s persistent failure to use correct and current addresses results in an unnecessary burden for individuals and the Justice system across the country.  So much so that the government felt the need to take action.  On 23rd December 2016 gov.uk published an article from the Ministry of Justice and The Rt Hon Sir Oliver Heald QC MP about the government “crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses.”  The article went on to say: “The consultation will look at ways to:

• better protect consumers who are sent mail to inaccurate addresses
• verify addresses again before a claim is sent

The then Justice Minister Sir Oliver Heald is quoted in the article:

“It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments.

In the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.”

3.5.1. Had the Claimant made any effort to verify my address again before the Claim was sent they would have located me and I would have responded to the Claim.

APPLICATION FOR THE ORIGINAL CLAIM TO BE DISMISSED

4.1. The amount of the Judgment in Default is £185.  This includes an element of double recovery in order to inflate the claim and is therefore an abuse of process and governed by Rule 3.4(2) which provides “The court may strike out a statement of case if it appears to the court -

1. that the statement of case discloses no reasonable grounds for bringing or defending the claim;
2. that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceeding; or
3. That there has been a failure to comply with a rule, practice direction or court order.”

4.2. In the Particulars of Claim I was e-mailed by the Court on 4th March 2021 it stated “The Claimant seeks the recovery of the Parking Charge Notice, contractual costs and interest.” 

4.3. In Excel Parking Services Ltd v. Wilkinson - 1st July 2020 at Bradford County Court DJ Jackson considered a claim by the same Claimant as in that case.  In the Wilkinson case at para 2 it stated the “sum claimed in the claim for is £160 together with the court fee of £25 forming a total amount of £185.”   At para 14 in that case it clarifies that the £160 is made up of “£100 parking charges and £60 contractual costs.”   This was considered and ultimately found to be unfair.  Further consideration was give to the effect of this on the rest of the claim and it was found at para 39 that “the claim should be struck out as an abuse of process.  There can be no doubt that the inclusion of the additional costs claim is inclusion of a claim based either on an unfair clause with will not be enforced by the court, double recovery or an attempt to circumvent CPR 27.14 when it is unfair to do so.”

4.3.1. At para 40, of the same case DJ Jackson stated “Why then has this additional sum of £60 been include in this claim, and it would appear in a number of claims made by this Claimant?  There can be only one reason it is an attempt by the Claimant to recover sums they are not entitled to either by seeking unliquidated damages as liquidated damages to avoid a hearing before a Judge in relation to a default judgment, or by seeking to recover unfair sums which would be recovered in a default judgment application despite the sums not being recoverable at law or by seeking to circumvent CPR 27.14.”

SUMMARY

5.1. I was unaware of this claim and was therefore denied the right to defend myself or admit liability depending on the circumstances of the case.  

5.2. Through the poor actions and lax practices of the Claimant the Judgment in Default against me was issued incorrectly and should be set aside.

5.3. Had I been aware of the case and able to defend myself the claim was liable to be struck out as an abuse of process.

5.3. I ask the Court to consider the reimbursement of the fee of £255 from the Claimant.

5.4. I have acted promptly and with integrity and have used my best endeavours to discover the nature of the Judgment and the circumstances of it in order to make this application.

nosferatu1001

Draft order - word doc. 

Show us what you propose in it, as we've seem some woeful ones, where posters had no idea what they were writing 

henrik777

2.7. On 7th March 2021 I texted the current owner of XXXX and enquired whether any post had been received for me over the relevant period of time.  They replied and confirmed that post had been received, but had been marked “returned to sender”.

A further witness statement from them, or admission from the claimant/respondent would compliment your witness statement very nicely.