CCJ set aside - help with prospects and consent

orange_dog

Sorry to bump this post I'm just aware there is a time limit since I have found out about the CCJs.
I would really appreciate if anyone look over this if they have time so I can send the draft order and consent letter to VCS to get the 7 day period rolling before submitting my N244. 
Thankyou

Johnersh

Why are you having an either/or costs provision in the draft order you are supplying to court with the N244. It's the order you seek, so ask for your costs.

The point here is not merely that D didn't receive papers but that the claimant *never* served proceedings as it had an actual knowledge that D was not at the address - a factor which displaces last known address.

C must have had knowledge since a responsible company like C wouldn't rush to commence court proceedings without reviewing the papers and photographic evidence, would it?

That's why judgment needs to be set aside with an order for your costs. 

Coupon-mad

Saw a typo:

 it's 

orange_dog

@Johnersh Thankyou! Just to clarify - do you mean I should remove paragraph 6 as this gives the judge an alternative option and just to state in Paragraph 2 the set aside is to be paid by C
I will add a paragraph stating the D was never served.

@Coupon-mad Thankyou for reading.

I'm really sorry to tag as I know this is all on a volunteer basis but I wondered if @henrik777 could give the draft order/application/consent letter (bottom of page 1) a read over as I can see you have alot of experience in this area and might be able to confirm some of the questions! I know it is cheeky but seems like i'd have 3 very good pairs of eyes over it and I am so far in over my head I need all the help I can get!
Thankyou so much everyone

orange_dog

Update: Im going to send off the VCS consent letter and draft order, just to give one last look over tomorrow. 

I wondered if anyone could look at my witness statement I am going to start on the draft defence now.

Is it correct that I should give VCS 7 working days to consent before I send in the N244/draft order/WS/draft defence to the court??

In the County Court at xxxxxxxx

Claim Number: xxxxxxxx

 

VEHICLE CONTROL SERVICES LIMITED

(CLAIMANT)

V

(DEFENDANT)

xxxxxxxxx

1.     This Witness Statement is in support of the N244 application dated 06/05/2021 of the defendant, xxxxxxx, to set aside a default judgement (claim number xxxxxxxx).

2.     The Claimant, Vehicle Control Services Limited (VCS Ltd), filed a court claim (number xxxxxxx) on 17/07/2019, and obtained a default in judgement on 08/08/2019 having used an address that I, the defendant, vacated in July 2018.

3.     Several of the defendant’s accounts including bank account/phone bill/breakdown cover/driving licence/electoral roll are not registered at the address where the parking charge letters were sent as this was a temporary residence, thus a simple tracing search would have revealed an alternative address to contact prior to the claim being filed [Exhibit A].

4.     The defendant first became aware of the claim on 05/05/2021 after receiving a “Notice of Debt Recovery” from Direct Collection Bailiffs Limited (DCBL) through the post at a current address [Exhibit B].

5.     It is pointed out that DCBL had no problem finding a correct address.

6.     The defendant immediately called the County Court Business Centre (CCBC) on 05/05/2021 and learned that the claimant had issued proceedings following an alleged contravention which occurred on 29/01/2019 [Exhibit C].

7.     The defendant also immediately submitted a subject access request to VCS Ltd on 05/06/2021 to gain insight on all letters and charges which had been apparently “served” [Exhibit D].

8.     In addition the defendant updated her address to CCBC in writing on 06/5/2021 [Exhibit E]

9.     Following this the defendant created a draft order and sent email correspondence to VCS Ltd on 10/05/2021 to inform them of an application to set aside and provide opportunity to consent within 7 days or an application for the judgement to be set aside without consent would be made [Exhibit F].

10.  It is proven, from evidence taken by VCS Ltd from a different claim occurring on 07/07/2019 (to which that also sent all correspondence to the same wrong temporary address and another CCJ has been incorrectly awarded), that the Claimant had knowledge that the keeper of the vehicle may have been residing at a different address [Exhibit G].

11.  They also had a telephone number which it is reasonable to believe, and not difficult to test, belonged to the keeper of the vehicle [Exhibit G].

12.  It is stated under CPR 6.9(3) “Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

13.  It is stated under 6.9(4) “(4) Where, having taken the reasonable steps required by paragraph (3), the claimant –

(a)   ascertains the defendant’s current address, the claim form must be served at that address; or

(b)   is unable to ascertain the defendant’s current address, the claimant must consider whether there is –

(i) an alternative place where; or

(ii) an alternative method by which,

service may be effected.”

14.  It is known that on 07/07/2019 the Claimant had evidence that the defendant may have resided at an alternative address as proven in paragraph 10 and yet still filed a claim on 17/07/2019 to an old address despite this knowledge and not receiving any acknowledgement or reply since the contravention on 29/01/2019.

15.  It is proven that the Claimant had an alternative method by which to contact the keeper, as shown in paragraph 11, and yet never tried to contact the keeper/the defendant nor did they apply to alternatively serve the claim under CPR 6.15.

16.  It is shown by paragraphs 14 and 15 that very reasonable and simple steps would have resulted in contact with the defendant, yet VCS Ltd made no attempt. Therefore VCS Ltd did not fulfil their duty to contact the defendant appropriately.

17.  It is shown by paragraph 2 and paragraph 5 that the defendant was indeed traceable to a different address had an attempt been made.

18.  It is shown by the timeline of events that after gaining knowledge of the CCJ the defendant immediately acted, spending hours researching the correct protocols and procedures to ensure the CCJ be set aside and appropriate opportunity to defend the case is given if needed.

19.  If the defendant had been aware of the original parking charge, they would have defended it, and in the unlikely event of being unsuccessful, indeed paid the charge to avoid a CCJ as the defendant is a responsible and honest member of society, supported by the defendant’s occupation as a hospital doctor.

20.  It is claimed that the events caused by VCS Ltd.’s wholly unreasonable conduct has resulted in the defendant being under undue stress at a time when the defendant is on the front line of a global pandemic, putting herself at risk, to protect and treat all members of society. It is also claimed that this added stress has severely impacted the defendant’s mental health resulting in increased levels of anxiety during this trying time.

21.  It is seen from publicly available information, that the claimant’s persistent failure to use correct and current addresses results in an unnecessary burden for individuals and the justice system across the country. Furthermore it is reminded that there is a recent government pledge and new legislation “Parking Code of Practice and Framework” which aims to “crackdown on private carparking firms” unfair conduct.

22.  It is therefore respectfully asked, that due to the Claimant’s negligent behaviour, failure of proper conduct and resultant stress on the defendant, that the Judge consider the parking charge to be struck out completely as the defendant believes that the underhanded and irresponsible acts of VCS Ltd should be punished and act as a penalty in attempt to teach the company that improper conduct will not be rewarded.

23.  It is proven by paragraphs 10-15 that the defendant was in fact never served the claim and therefore the CCJ incorrectly issued and asks that under CPR 13.2 the court set aside the CCJ.

24.  It is proven by paragraphs 10-15 that the defendant was never served the claim, therefore it is asked that the Claimant cover the costs of the set aside application as it was the Claimant’s negligence which led to the CCJ being incorrectly awarded by default.

25.  If this is not satisfactory, it is shown from the above that the defendant never got chance to defend the claim and asks that under CPR 13.3 the court set aside the CCJ to allow a defence to be made if the parking charge is not struck out.

Thanks so much in advance!!

Le_Kirk

Witness statements are written in the first person, so you use "I" not "the defendant".

orange_dog

@Le_Kirk Thankyou I’ll change it

1505grandad

Some observations:-

There are several references to "Judgement" which in this context does not include the middle "e"  -  Google CCJ

Are these dates correct?:-

"7.     The defendant also immediately submitted a subject access request to VCS Ltd on 05/06/2021 to gain...."

"9.     Following this the defendant created a draft order and sent email correspondence to VCS Ltd on 10/05/2021...."

orange_dog

@1505grandad Thankyou! I will check the grammar. 

Also I mean 05/05/21 so nice catch!

im planning to send draft order/consent email on Monday which will be 10/5 but actually it’s ready to send tomorrow if I don’t get any other feedback on it  

Thankyou again

henrik777

Indemnity costs  v standard costs  

10.  It is proven, from evidence taken by VCS Ltd from a different claim occurring on 07/07/2019 (to which that also sent all correspondence to the same wrong temporary address and another CCJ has been incorrectly awarded), that the Claimant had knowledge that the keeper of the vehicle may have been residing at a different address [Exhibit G].


The point is fine but i would rephrase as you are effectively telling the court rather than pointing it out so they can make up their own mind. Some judges are ar.....  "HOW DARE YOU TELL ME"

Evidence from xxx on xxx shows ...... or similar.

Also, you seem to have been under the assumption this is a minor point as you haven't mentioned it until then. It's very significant. Indeed i would say it should be fatal to their chances of contesting a set aside. Some judges might have been willing to dismiss the note you left but the reality is they cannot ignore the court documents.




15.  It is proven that the Claimant had an alternative method by which to contact the keeper, as shown in paragraph 11, and yet never tried to contact the keeper/the defendant nor did they apply to alternatively serve the claim under CPR 6.15.

It is proven. As above. Although i don't think it proves they didn't apply. It's unlikely they did but if they contest then the court will require proof as the burden of proof on that becomes theirs.


16.  It is shown by paragraphs 14 and 15 that very reasonable and simple steps would have resulted in contact with the defendant, yet VCS Ltd made no attempt. Therefore VCS Ltd did not fulfil their duty to contact the defendant appropriately.

Apparently made no attempt.


25.  If this is not satisfactory, it is shown from the above that the defendant never got chance to defend the claim and asks that under CPR 13.3 the court set aside the CCJ to allow a defence to be made if the parking charge is not struck out.

Cases where the court may set aside or vary judgment entered under Part 12

13.3

(1) In any other case, the court may set aside or vary a judgment entered under Part 12 if –

(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.

(2) In considering whether to set aside or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.


25 is very much an after thought with zero input. There's the rule above, either make an argument or bin it because your 13.2 argument is so strong.