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

Le_Kirk

I think there is confusion between two different six-point draft orders.  In a normal six-point order that we have seen on here many times, paragraph 2, states that costs to be reserved and therefore paragraph 5 makes sense if they discontinue because you want your costs and fee re-paid.  What you don't want to do is ORDER the claimant to pay your fees and costs and then ORDER that if they discontinue, they don't have to pay!

Coupon-mad

Tycho6 said:
I'm struggling to find a proper link to the Excel v. Wilkinson case.  Does anyone have one please?

Took one search for 'Excel v' (that's all I put in) and took less than a second:

https://forums.moneysavingexpert.com/discussion/comment/78124130#Comment_78124130

Tycho6

Coupon-mad said:
Took one search for 'Excel v' (that's all I put in) and took less than a second:

https://forums.moneysavingexpert.com/discussion/comment/78124130#Comment_78124130

Great, that's the one I'd seen and printed to include with my WS.  I just wanted to make sure I had the correct one.

Tycho6

Le_Kirk said:

I think there is confusion between two different six-point draft orders.  

Yes, that's what I have done. Sooo many tabs open on my computer at the moment.

Tycho6

@Le_Kirk is this the form of words I should 
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 in any event.

Le_Kirk

Tycho6 said:

@Le_Kirk is this the form of words I should 
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 in any event.

Isn't that exactly the same as you have already written?

Tycho6

Isn't that exactly the same as you have already written?

Basically it was.
Is this better:
1. The judgment dated [insert date of judgment] be set aside.

2. The Claimant to pay the Defendant’s costs of this application on an indemnity basis.

3. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4pm on XXXX the claim will be struck out without further order.

4. If the Claimant serves the Claim Form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm XXXX.

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

6. Should the court reserve costs in the case as an alternative to paragraph 2, such costs of this application will become payable if the claimant discontinues it's claim.

henrik777

Whilst on the face of it your set aside is the same as most others on here, it's significantly different.

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”.

Draft order is going to be, Set aside, Costs awarded, proper POCS sent, defence.

It is pretty much inconceivable that a mandatory set aside won't be granted with "return to sender" on top of a delay and no response from you. If you win because they messed up costs should follow.

If the court varies your order then you can ask for whatever you feel, especially if costs are reserved but i can't see it if you put the argument well.

 

Tycho6

DRAFT ORDER
1. The judgment dated [insert date of judgment] be set aside.

2. The Claimant to pay the Defendant’s costs of this application on an indemnity basis.

3. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4pm on XXXX the claim will be struck out without further order.

4. If the Claimant serves the Claim Form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm XXXX.

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

6. Should the court reserve costs in the case as an alternative to paragraph 2, such costs of this application will become payable if the claimant discontinues it's claim.

Should I bother with a second draft order for the abuse of process argument?  Do I need to mention the abuse argument on the N244 or is it sufficient to mention it in the attachments?
I've pared down my witness statement and created a separate document as a statement of case with the caselaw/CPR in.
Should I assign the various exhibits references in the WS or can I do a list of documents relied on in the N244?

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 6th March 2021 I sent a text message to 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. The Claimant informed me they sent 5 letters.  The current occupy has informed me any letters received were returned to sender. 

SUMMARY

4.1. 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.  

4.2. 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.

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.

KeithP

Para 3.4. - The current occupy has...
Should be - The current occupier has...