Surprise CCJ Dilemma

YorkshirePudd

My witness statement to send with the N244 is below - would very much appreciate some fresh eyes - not sure if it even makes sense any longer.  Unsurprisingly, there has been no response to the invitation to consent.

Thanks very much in advance

WITNESS STATEMENT

I am xxx and I am the defendant in this matter.  This is my supporting statement to my application dated xxxx requesting to:

 

a.       Set aside the default judgment dated 5th November 2020 as it was not properly served at my current address.

b.       Order for the original claim to be dismissed.

c.       Order for the claimant to pay the defendant £255 as reimbursement for the set aside fee.

DEFAULT JUDGMENT

 

1.1. I was the registered keeper of the vehicle at the time of the alleged offence.

1.2. I understand that the Claimant obtained a Default Judgment against me as the Defendant on 5th November 2020.  I am aware that the Claimant is Excel Parking Services Ltd, and that the assumed claim is in respect of an unpaid Parking Charge Notice from xxx date and address xxx

1.3. The claim form was not served at my current address and thus I was not aware of the Default Judgment until 29th December 2020 following a check of my credit report.

1.4. The address on the claim is xxxxxxxxxxxx. I moved from this address to my current address of xxxxxxxxxx on 16th June 2016.  In support of this I can provide a scanned copy of my mortgage agreement [is this enough evidence for change of address?] Schedule (X)

1.5. [Do I need this section for 13.2 when 13.3 doesn’t apply?]  In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

1.5.1 I discovered a County Court Judgement (CCJ) was lodged onto my credit file on the 29th December 2020.

1.5.2 On 29th December 2020 I contacted the County Court Business Centre via telephone to obtain relevant information relating to this default judgment.

 

1.5.3 On 12th November 2021 I contacted the Claimant inviting them to consent to a set-aside.

 

1.5.4 The Claimant acknowledged my correspondence but did not respond to the invitation to consent.

 

1.5.5 On xx December 2021 I have wilfully submitted my case in order to set-aside this judgment and fairly present my case.

 

1.5.6 [Should I write something about why I have not taken action in the 10 months I have known about the default judgment? E.g having coronavirus/being an unpaid carer for terminally ill parent/working in frontline social care/single parent/subsequent poor mental health]

 

1.5.7 I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim.

1.6.1 On that basis, I believe the Claimant has not adhered to Civil Procedural Rules (CPR) 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The claimant did not take reasonable steps to ascertain and use the address of my current residence. This has led to the claim being incorrectly served to an old address and an irregular judgment.

 

1.6.2 Under CPR 13.2 The court must set aside a judgment entered under part 12 if judgment was wrongly entered.  Given that CPR 6.9 (3) was not met, CPR 13.2 applies and the CCJ should be set aside.

 

1.6.3 The defendant was 'there to be found' for the sake of a 29pence bulk Experian trace or similar very inexpensive and immediate credit reference agency address check.

 

1.6.4 The Claimant in fact had the defendant’s current address as seen in schedule xxx but instead used an address obtained over 3 years ago which is evidence that the Claimant acted in direct contradiction of CPR 6.9 (4)(a) which states that a claim must be served at the Defendant’s current address

 

1.7 Given that more than 4 months has passed from issue of proceedings and service of the claim was defective (i.e. it was never served) the Defendant submits that this particular claim is dead and the period for service cannot be extended by this application process.  The Defendant has no details of this claim, therefore, if the Claimant believes there is a cause of action then the correct procedure would be to file a claim afresh and to the right address, after furnishing the Defendant with the information required under the pre-action protocol for debt claims, issued this time to the correct address for service for this Defendant, which is (address and postcode).

1.8 According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a 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 Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That 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.” Furtherance to points raised in 1.3 above.

1.9 Considering the above I was unable to defend this claim. I believe that the Default Judgment against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £255 from the claimant should this request be successful.

KeithP

1.5.5. where does that word wilfully come from? Why are you using it? What does it mean in this context?

Coupon-mad

It's £275 not £255, now.

I see you mentioned the claim is dead after 4 months which is good but I didn't see you mention the authority for the argument that the court cannot make an order to extend the time to serve a claim under most circumstances.  Boxwood.

Jenni_D

1.5.6 Yes, I think you should have something here to explain the reason for the delay (which is almost 12 months, not 10). As it currently reads you found a CCJ against you in December 2020 yet have waited until December 2021 to apply for a set-aside - a judge might have issues agreeing to hear your set-aside application without there being really good mitigating circumstances. (But ignore this if @Coupon-mad doesn't agree - she's the queen of PPC fighting here).  

Coupon-mad

Don't say you 'can' provide a scan of your mortgage agreement, attach that scan and maybe a utility bill from 2020 or whenever the claim was actually filed by them.

Get rid of 'wilfully' (how we hate that a poster used that wrong word in an otherwise good WS and so many people just copy it!  Google it!).

And yes you do need to explain:

1.5.6 [Should I write something about why I have not taken action in the 10 months I have known about the default judgment? E.g having coronavirus/being an unpaid carer for terminally ill parent/working in frontline social care/single parent/subsequent poor mental health]

YorkshirePudd

KeithP said:

1.5.5. where does that word wilfully come from? Why are you using it? What does it mean in this context?

Yikes - totally copied, pasted and not registered!  Thank you for pointing it out

YorkshirePudd

I have made some changes.  Hoping that the documents will be ready to send during working hours next week.  I've made the suggested changes and would appreciate a final check.  I'll sort the formatting out after any final tweaks.

Again thank you all so much

Here's the witness statement:

I am xxxx and I am the defendant in this matter.  This is my supporting statement to my application dated xxxx requesting to:

 

a.       Set aside the default judgment dated 5th November 2020 as it was not properly served at my current address.

b.       Order for the original claim to be dismissed.

c.       Order for the claimant to pay the defendant £275 as reimbursement for the set aside fee along with any other associated costs.

DEFAULT JUDGMENT

 

1.1. I was the registered keeper of the vehicle at the time of the alleged offence.

1.2. I understand that the Claimant obtained a Default Judgment against me as the Defendant on 5th November 2020.  I am aware that the Claimant is Excel Parking Services Ltd, and that the assumed claim is in respect of an unpaid Parking Charge Notice from xxxx at xxxx

1.3. The claim form was not served at my current address and thus I was not aware of the Default Judgment until 29th December 2020 following a check of my credit report.

1.4. The address on the claim is xxx. I moved from this address to my current address of xxxx on 16th June 2016.  In support of this I have attached a scanned copy of my first mortgage statement (Appendix 1) which shows the first payment for xxx was made on 17th June 2016.  I have also attached a scanned copy of a utility bill (Appendix 2) which shows payments being made for water usage at xxx in the months before the Default Judgment.

1.5. In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

1.5.1 I discovered a County Court Judgement (CCJ) was lodged onto my credit file on the 29th December 2020.

1.5.2 On 29th December 2020 I contacted the County Court Business Centre via telephone to obtain relevant information relating to this default judgment.

 

1.5.3 On 12th November 2021 I contacted the Claimant inviting them to consent to a set-aside (Appendix 3).

 

1.5.4 The Claimant acknowledged my correspondence but did not respond to the invitation to consent (Appendix 3).

 

1.5.5 On xxxx I have submitted my case in order to set-aside this judgment and fairly present my case.

 

1.5.6 Extenuating Circumstances – There has been a delay of approximately one year in my applying for the Default Judgment to be set aside for which I apologise…xxx sensitive info xxx

 

1.5.7 I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim.

1.6.1 On that basis, I believe the Claimant has not adhered to Civil Procedural Rules (CPR) 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The claimant did not take reasonable steps to ascertain and use the address of my current residence. This has led to the claim being incorrectly served to an old address and an irregular judgment.

 

1.6.2 Under CPR 13.2 The court must set aside a judgment entered under part 12 if judgment was wrongly entered.  Given that CPR 6.9 (3) was not met, CPR 13.2 applies and the CCJ should be set aside.

 

1.6.3 The defendant was 'there to be found' for the sake of a 29pence bulk Experian trace or similar very inexpensive and immediate credit reference agency address check.

 

1.6.4 The Claimant in fact had access to the defendant’s current address through their commissioned agents Direct Collection Bailiffs Ltd (Appendix 5) but instead used an address obtained over 3 years ago which is evidence that the Claimant acted in direct contradiction of CPR 6.9 (4)(a) which states that a claim must be served at the Defendant’s current address

 

1.7 Given that more than 4 months has passed from issue of proceedings and service of the claim was defective (i.e. it was never served) the Defendant submits that this particular claim is dead and the period for service cannot be extended by this application process.  The Defendant has no details of this claim, therefore, if the Claimant believes there is a cause of action then the correct procedure would be to file a claim afresh and to the right address, after furnishing the Defendant with the information required under the pre-action protocol for debt claims, issued this time to the correct address for service for this Defendant, which is xxx.

 

1.8 There are several authorities for this, including the judgment in Boxwood [2021] EWHC 947 (TCC), which is a reminder of the strictness of the requirements of CPR 7.6 and how difficult it is to use other parts of the Civil Procedure Rules to rectify a failure to serve the claim form within the requisite period: “A claimant is not entitled to rely on the wide, general powers under CPR 3.10 or CPR 3.9 to circumvent the specific conditions set out in CPR 7.6(3) for extending the period for service of a claim form.

 

1.9 In Vinos v Marks & Spencer plc [2001] 3 All ER 784 the Court of Appeal considered whether any extension of time should be granted under CPR 7.6 in circumstances where the defendant had been notified of the issue of a claim form but the claim form had not been served within four months as required by CPR 7.5 and the application was made after expiry of that period. The court refused to grant relief on the basis that it did not have power to do so.

2.0 According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a 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 Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That 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.” Furtherance to points raised in 1.3 above.

2.1 Considering the above I was unable to defend this claim. I believe that the Default Judgment against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £275 from the claimant and any associated costs should this request be successful.

 

YorkshirePudd

I'm now a little unsure about the draft order as I've seen recent ones with just 4 points rather than the more common 6 ones on here.

Here is my 6 point draft order:

 

DRAFT ORDER
IN THE COUNTY COURT AT

XXXXXX XXXXX LIMITED (Claimant)
And

(Defendant)

District Judge

UPON reading the Defendant's application dated 4th May 2020 and the annexed witness statement of xxx dated xxx

1. The default judgment dated 5th November 2020 be set aside.

2. Costs to be reserved.

3. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4 pm on DD/MM/YYYY paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £275 and the claim shall be struck out.

4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm on DD/MM/YYYY.

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 £275 plus the Defendant's costs for attending the hearing.

6. That all enforcement be put on hold pending the outcome of the application.

Coupon-mad

How will you explain what looks like sitting on your hands for a year?  Pandemic or family concerns?

1.5.1 I discovered a County Court Judgement (CCJ) was lodged onto my credit file on the 29th December 2020.
1.5.2 On 29th December 2020 I contacted the County Court Business Centre via telephone to obtain relevant information relating to this default judgment.
1.5.3 On 12th November 2021 I contacted the Claimant inviting them to consent to a set-aside (Appendix 3).

Change your numbering to normal numbers.

Add in that the IPC CoP from the year the claim was filed by this Claimant, required AOS members to check addresses before filing court claims, if more than 12 months had gone by since the parking event.  Find what para that was from the right year version of the IPC CoP and quote it.

Also, add that DVLA data is notoriously unreliable with some motoring experts estimating that up to a third of keeper data is not correct or up to date; partly due to the DVLA themselves gaving delays and errors and failing to make it clear to motorists in recent years that sending off a driving licence is not enough (according to the DVLA) for them to change all address records held for that data subject, as private firms have to.  Consumers think the DVLA operate a 'tell us once' service and only find out too late, that they don't, despite the GDPR requiring accuracy and diligent rectification of a person's data.

YorkshirePudd

Coupon-mad said:

How will you explain what looks like sitting on your hands for a year?  Pandemic or family concerns?

@Coupon-mad I have a paragraph explaining that, would you mind taking a look if I PM you it please?