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

Tycho6

ARGUMENT - for some reason the numbering won't re-produce here, but if I try to amend it the format becomes very confused.

1. The Defendant denies that the Claimant was entitled to seek the Judgment in Default (the Judgment) dated XXXX.

1. The Judgment should be set aside under CPR 13.2(a) as the Claim Form was never served.

1. CPR 13.2 states:

The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because–

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

1. CPR 12.3(1) states The claimant may obtain judgment in default of an acknowledgment of service only if at the date on which judgment is entered–

(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and

(b) the relevant time for doing so has expired.

1. The relevant rule for acknowledgment of service is CPR 10.3 which states (1) The general rule is that the period for filing an acknowledgment of service is –

(a) where the defendant is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim; and

(b) in any other case, 14 days after service of the claim form.

1. CPR 6 deals with service.  As The Defendant did not give an address to the Claimant at which he could be served, primarily because the Defendant was not asked, CPR 6.9 applies.

1. CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence.”

1. The Claimant, having not obtained an address directly from the Defendant, and having obtained an address from a 3rd party and received no response, did not have the requisite knowledge nor perform the requisite "reasonable steps" required to find the Defendant’s correct address in order to serve the Claim Form.

1. In Collier v Williams [2006] 1 WLR 1945 (CA) Dyson LJ said "What state of mind in the server is connoted by the words "last known"? … As we have said, there is an important distinction between belief and knowledge. It is a distinction particularly well understood in the criminal law, but elsewhere too. The draftsman of the rules deliberately chose the word "known". In our view, knowledge in this context refers to the serving party's actual knowledge or what might be called his constructive knowledge, i.e. knowledge which he could have acquired exercising reasonable diligence. We arrive at this conclusion on the basis of what we understand the words to mean. We do not believe that there are any policy reasons which require us to give the words a strained or unusual meaning. The risk of satellite litigation is inherent in whatever interpretation is adopted. It is true that a defendant who has not in fact received the claim form should have no difficulty in setting aside a default judgment. But it is not desirable that defendants should be put to the trouble and expense of making applications to set aside default judgments.”

1. Whilst these comments were obiter they were given further credence by HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014) and HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012)

1. In Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012) it would appear that obtaining the information from a source that an individual is required by law to keep updated is adequate knowledge. However, the Defendant submits that it is incumbent to have recent knowledge and not outdated knowledge as HHJ Hacon put it in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014) "However I am in any event not persuaded by Ms Michaels on this point. The logic of her submission is that a claimant must conduct his inquiries into a defendant's whereabouts on the very date on which the step required for service within the meaning of CPR 7.5(1) is carried out, e.g. posting the documents. That seems to me to be an unnecessary burden and I doubt that it is what the Court of Appeal had in mind in Collier v Williams. I take the view that if a claimant has carried out inquiries with reasonable diligence as to the defendant's last known residence before that date and on that date it was objectively reasonable for the claimant to believe that the defendant's residence remained unchanged, then on that date it is still the defendant's last known residence for the purposes of service by that claimant. Of course the longer the delay between the inquiries and the date of the step required for service the harder it will be for a claimant to establish that there was good service.  In the present case the Claimant’s inquiries were sufficient to give it actual knowledge on 8 November 2012 that Mr Burton lived at 23 Irvine Place (which he did). No reason has been advanced as to why MBGB should not reasonably have believed on 12 November 2012 that he still lived there. In my view his last known residence on that date was still 23 Irvine Place so far as MBGB were concerned."

1. The Claimant stated to the Defendant over the telephone on 3rd March 2020 that they “sent 5 letters”.

1. The Claimant had no reason to believe that the address they used was still the address at which the Defendant resided.

1. 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.

1. On 23rd December 2016 www.gov.uk published an article from the Ministry of Justice and The Rt Hon Sir Oliver Heald QC MP regarding 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

1. 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.”

1. Had the Claimant used reasonable diligence to verify the current address of the Defendant again before the Claim Form was sent they would have located the Defendant.

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 -

• that the statement of case discloses no reasonable grounds for bringing or defending the claim;
• 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
• that there has been a failure to comply with a rule, practice direction or court order.”

1. In the Particulars of Claim the Defendant received from the Court by e-mail on 4th March 2021 it stated “The Claimant seeks the recovery of the Parking Charge Notice, contractual costs and interest.” 

1. In Excel Parking Services Ltd v. Wilkinson - 1st July 2020 at Bradford County Court DJ (now HHJ) 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.”

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.”

1. The Defendant is unable to visit XXXX to carry out any investigations as to the current signage as this would not be an essential reason for travel and would be a breach of the current measures in force to control the spread of infection.  It is unknown whether the signage now in place was in place on XXXX.  The Defendant is therefore reliant on receiving information from the Claimant in order to respond further.

1. Without having the chance to scrutinise the evidence the Defendant denies having breached any contractual terms.  The Claimant has provided no proof of any breach taking place other than a generic statement. 

1. In order to make informed decisions and statements in defence the Defendant will require copies of all paperwork and photographs of all signs at the time the Parking Charge Notice was issued on 5th October 2019 from the Claimant.  To date the Defendant has not received any such information.  The Defendant is therefore only able to outline a basic defence on the information available at the time of this application, this is to show that there is an arguable defence.

1. For all or any of the reasons stated above, the Court is invited to Set Aside the Judgment and to dismiss the Claim in its entirety as an abuse of process, and to award the Defendant such costs as are allowable on the small claims track, pursuant to CPR 27.14. 

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”.

  

nosferatu1001

The answer to tyhe question on draft orderS is no - dont have two draft orders. Have one. Just one. Noone said to do 2.
When you only  have one it becoems far, far simpler. I certainly would not be asking for costs to be reserved when RETURNED TO SENDER was put on an unopened letter, they should be paying. they ignored this clear evidence you did not reside there

Tycho6

I've filed my application and e-mailed the Claimant's representative to let them know.  They have now forwarded me the Claim Form with the particulars I had already received from the Court and also the evidence that the Claimant relied on.  The evidence consists of 4 images.  Two are what I would describe as a PDF of the text of the sign - not photos of the signs or where they were placed/the condition they were in.  A statement from the managing agent confirming who the landowner and car park operator are.  The statement is dated in 2015 (I am said to have been parked there in 2019).  The final document is a page with an aerial photo of the car park showing where I apparently parked (on the very boundary of the car park on the roof of a building), a Google Street view of the entrance to the car park and a second aerial photo of another part of the car park.  There are no photos of my car and no statements relating to anyone/thing observing me park and leave in breach of contract.  Should I file anything else with the Court in support of my application drawing attention to these matters given there is no evidence I was present let alone in breach of anything, or do I just need to wait for the hearing now?

nosferatu1001

ERm...OK. You could have shown us your revised order! 
Is the statement signed by the MA or by the claimant?

 A set aside hearing, as you know, is about setting aside the judgment. It has almost nothing to do with the merits of the underlyign claim.
Dont confuse the two.

Tycho6

Tycho6 said:

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.

It is signed by the MA.

I just wondered whether it was worth adding anything else to try to get the claim struck out without the need for a further hearing given there is no evidence.  To my mind that makes bringing the claim in the first place an abuse of process.  I understand that this app is about the set aside to effectively take the proceedings back to the start, but if I can also add something at this stage to try to get everything wrapped up in one go using the minimum amount of court time that would be great.

nosferatu1001

It isnt proof of a contract, however, nor of the terms in the contract. 

How about bringing it up if you get the chance at the set aside. But its highly unlikely to do antyihng. 

To your mind - is not correct. They can bring a claim whatever you may think otherwise. It is not an abuse. 

Tycho6

I've now received a date for the Set Aside hearing.  I filed my WS and exhibits with the application.  I've since had some further details from the claimant as to the evidence from the original claim.  Do I need to file a further WS to that effect?

SayNoToPCN

We dont know, because we have no idea what that info is, and why it has any bearing whatsoever on a hearing to set aside  a claim, which is not a hearing to defend the claim/ 

henrik777

Tycho6 said:

I've now received a date for the Set Aside hearing.  I filed my WS and exhibits with the application.  I've since had some further details from the claimant as to the evidence from the original claim.  Do I need to file a further WS to that effect?

If they argue about service then probably.

If you are arguing about 

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

Depends what they say as above.