Surprise CCJ Dilemma

YorkshirePudd

Hello...thanks all for this invaluable resource!  I had a surprise CCJ put on my credit file at the end of last year after court papers were issued to an old address, following a parking incident in 2017.  My intention, after lots of reading on this board, was to appeal on grounds of defective service - the parking company could have easily found my up to date address...and in fact they had it but chose to serve papers to the old address.  My dilemma is this:
The person who was liable for the parking incident is an ex partner.  We need to end some joint financial responsibilities which the financial institutions won't allow with the active CCJ on my record (they want me to just pay it off but I can't bring myself to do that).  The ex partner is putting pressure on me to get this sorted but it is a lot of work on top of being a single working parent, in addition to this a close family member is not expected to live until the end of the year and I have become their sole carer, so any spare time I have is being spent with them.  It's all getting a bit much and I'm not clear on what would be the consequences in terms of my CCJ if I named the ex, or if they identified themselves as the driver.
Any advice would be most appreciated.
Thank you

Fruitcake

Paying the CCJ will get it marked as satisfied but it will stay on file and still adversely affect your ability to obtain credit for six years. Generally there is no advantage to paying this off after the court mandated one month deadline.

You would be better getting a set aside, ideally with consent. With consent will cost you £100. Without consent will cost you £255. You may be able to get the money back once the original court claim is reset as long as you have a good enough defence to show the scamvoice should never have been issued in the first place.

Guidance on set-asides can be found in the sticky thread for NEWBIES.

Umkomaas

From a basic private parking charge position it's far too late to transfer the liability to the driver. Once court proceedings have been instigated, it's too late and the liability rests with the registered keeper. Even then, if the PPC's Notice to Keeper wasn't compliant with the Protection of Freedoms Act 2012 (Schedule 4), it could have been challenged at court, but as that opportunity was missed, that is no longer possible, unless you achieve a set aside and the court requires a new defence of the original charge. 

But all that is a bit premature at this stage, a set aside is your first step. 

We need to end some joint financial responsibilities which the financial institutions won't allow with the active CCJ on my record (they want me to just pay it off but I can't bring myself to do that).

That won't remove your CCJ. Don't knee-jerk into that. 

Which parking company is involved here please?

Coupon-mad

 It's all getting a bit much and I'm not clear on what would be the consequences in terms of my CCJ if I named the ex, or if they identified themselves as the driver.

Too late to name the driver.   

But not too late to get the CCJ set aside and the PCN defended and beaten (paying nothing at all) see the NEWBIES thread and any other set aside threads (please read at least ten).

YorkshirePudd

Umkomaas said:

From a basic private parking charge position it's far too late to transfer the liability to the driver. Once court proceedings have been instigated, it's too late and the liability rests with the registered keeper. Even then, if the PPC's Notice to Keeper wasn't compliant with the Protection of Freedoms Act 2012 (Schedule 4), it could have been challenged at court, but as that opportunity was missed, that is no longer possible, unless you achieve a set aside and the court requires a new defence of the original charge. 

But all that is a bit premature at this stage, a set aside is your first step. 

We need to end some joint financial responsibilities which the financial institutions won't allow with the active CCJ on my record (they want me to just pay it off but I can't bring myself to do that).

That won't remove your CCJ. Don't knee-jerk into that. 

Which parking company is involved here please?

Thank you for your reply.  I thought it would be too late to transfer liability but it was worth asking the question.

I haven't paid it off, I fully intend to apply for a set aside and contest.  Aware I'm too late for 13.3 but my understanding is no time limit for 13.2 defective service.

The company is Excel.

Coupon-mad

Why the gap of six months?  As you say, this now removes any argument under 13.3 so you have no safety net.  Also this delay means the CCJ remains well into 2022 when it could have been set aside already

YorkshirePudd

Will the courts ask why?  My mum was given 6 months to live in Feb so caring for her has been my priority alongside parenting alone and holding down a frontline health and social care role.  Totally aware how important this is but keeping people well and marginally sane in the pandemic has trumped everything.

YorkshirePudd

I have intermittently read and re-read so many posts on here about set asides of course after reading the newbie thread multiple times.

I'm on the first step which I believe to be emailing a letter to the company asking to consent to set aside.  I have made many notes and cut and pasted lots of advice excerpts but I feel I'm not retaining enough of what I'm reading in the time I have.

Apologies and thank you in advance...here is the letter I intend to send.  Is it suitable?

Dear XXXXX,

Re: County Court Claim No. XXXXX 

Re: Charge Notice Ref No. XXXX

On XXXX you were awarded a county court judgement against me to recover the outstanding amount for a charge notice relating to a parking event that took place on XXXX.

The judgement was sent to an address I had not lived at for some time, which you had obtained from the DVLA.

You did not attempt to make contact before serving proceedings in the three and half years since your last correspondence to me and you served proceedings to the oldest of two addresses you hold on file for me.  An electoral roll search would have shown which of these addresses was correct, was there to be found.

For this reason it is clear that you failed to take reasonable steps to ascertain the address of the defendant’s (myself) current residence or place of business (‘current address’).

As service was defective and not valid, the court must set aside your judgment pursuant to CPR 13.2

***Link here that the forum won't let me post

Cases where the court must set aside judgment entered under Part 12

13.2 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

Conditions to be satisfied

12.3

(1) The claimant may obtain judgment in default of an acknowledgment of service only if –

(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.

***Link here that the forum won't let me post

The relevant time for filing an acknowledgement of service

***Link here that the forum won't let me post

The period for filing an acknowledgment of service

10.3

(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.

(2) The general rule is subject to the following rules –

(a) rule 6.35 (which specifies how the period for filing an acknowledgment of service is calculated where the claim form is served out of the jurisdiction under rule 6.32 or 6.33);

(b) rule 6.12(3) (which requires the court to specify the period for responding to the particulars of claim when it makes an order under that rule); and

(c) rule 6.37(5) (which requires the court to specify the period within which the defendant may file an acknowledgment of service calculated by reference to Practice Direction 6B when it makes an order giving permission to serve a claim form out of the jurisdiction).

If the claim form was not served (or validly served as some may put it) the time limit for acknowledging service has not begun. If it hasn't begun it can't have expired. If it hasn't expired that is a mandatory set aside.

This is on point with the court of appeal in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016)

Moreover, I do not consider that the CPR presents an obstacle in the circumstances of this case to setting aside judgment. CPR 13.2 provides that the court must set aside a default judgment where any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied. The latter provision does not apply, but the former is relevant. CPR 12.3(1) states that a claimant may obtain judgment in default of an acknowledgment of service only if (a) the defendant has not filed an acknowledgment of service or a defence and (b) the relevant time for doing so has expired. I accept Mr McLaren's argument that, when an order for retrospective validation of an alternative method of service has been made pursuant to CPR 6.15(2) the relevant time for filing an acknowledgment of service is the period which the court must specify under CPR 6.15(4)(c). Where, as in this case, the court did not specify any such time there can be no relevant time which has expired for the purposes of CPR 12.3(1). If this analysis is correct the requirements of CPR 12.3(1)(b) have not been satisfied and so the court is obliged to set aside the default judgment pursuant to CPR 13.2(a).

I do not see it as a draconian consequence that a judgment, obtained after deemed service has been effected without specifying a time for that service to be acknowledged, should be set aside as of right in such a case. I agree that CPR 13.2 specifies the circumstances in which a default judgment must be set aside and in my judgment one of those circumstances is when judgment is entered in default of an acknowledgment of service when "any of the conditions in rule 12.3(1)…was not satisfied". Here one such condition was not satisfied, namely the time for acknowledgement of service had not expired, because none had ever become applicable.

This, to my mind, is not "playing technical games" (c.f. the passage from the Abela case, cited at paragraph 11 in the judgment of Longmore LJ). It is merely applying the principle that due process should be followed. If a defendant has never become under a valid obligation to acknowledge service, either as specified under the rules or by order of the court, I do not see how it can be that a judgment can be entered against him in default of such acknowledgment. He is simply not in default at all.

In light of the above, and the over riding objectives (CPR 1) i invite you to consent to a mandatory set aside, with the costs borne by yourselves which will be cheaper than obtaining the same result without consent.

Please respond within three days.

Yours Faithfully,

Coupon-mad

Absolutely fair enough (been there done that with a relative) and totally understand.  Sorry I asked and that you felt the need to reveal something so painful.  We can delete these posts if you prefer.

I'd say, due to your circumstances, that I would argue for both 13.2 and 13.3 as a fallback after all because there is 'good reason' that your case should be heard and that promptness should be less of a consideration than for someone twiddling their thumbs for 6 months.

Having said this, I urge you to do this now, this week, get it done so the ball is rolling well before the court's lengthy Xmas break.

YorkshirePudd

Re the posts - I don't mind, if it helps someone else see it's not too late or that it can (hopefully) be done with so much personal drama and responsibility going on then am happy to leave it.  Sorry you have been through similar too.  Thankfully she is still with us but obviously there could be a deterioration at any point and I am concerned that I may make a hash of the whole court process as a result of not thinking clearly.

Re my letter to the company above asking for consent, should I add in 13.2 or will it be ok as it is?

Also sending a SAR to see their hand.

Coupon-mad

I think that is fine as it is but giving them only three days is unreasonably short. 7 or 14 days is better.