CCJ after CN

tommoCF

Thanks - I paid the £255 fee on Friday and submitted my N244 same day using the text for the form I posted here and amended as per the helpful advice. I initially used Johnersh template to try to keep the N244 punchy (https://forums.moneysavingexpert.com/discussion/6205985/default-ccj-filed-against-me-and-court-letters-sent-to-wrong-address/p2)
I know I need to say at the set-aside hearing itself that I require the claimant to cover the £255 set-aside fee, but have seen that others have put in the text of their N244 form, e.g. "2. The Claimant to pay the Defendant’s costs of this application to the sum of £255".
Should I have also put that on the form itself or is it enough to request at the set aside hearing?

Coupon-mad

You can send a Draft Order as a word document separately by email now. What you are describing is a Draft Order.

tommoCF

Many thanks - I received Notice of Transfer Proceedings a few days ago so now waiting for set-aside hearing date and details.

I now want to send the Word-doc Draft Order as advised.. do I send it to the same email address as the N244 form (ccbcfees@justice.gov.uk) along with the claim number for ref?

I found the wording for a Draft Order provided by henrik777 a few months ago to someone with a similar sounding set-aside application to mine. There seemed to be debate in those threads about how the issue of costs should be referred to and worded, hopefully I've got it right below? Guidance very gratefully receive as always.

Where it says 'xxxx' I enter the relevant dates for my case, and where it says '[date]', that should be left as is for the judge to enter once the relevant date is decided on - have I got that right?  

DRAFT ORDER

Upon reading the Defendant's application and witness statement dated xxxx 

IT IS ORDERED that:

1. The default judgment dated xxxxx be set aside.

2. The Claimant to pay the Defendant’s costs of this application to the sum of £255

3. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4 pm on [date] paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £255 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 [date].

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.

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

Coupon-mad

Looks fine, unless you want to go the way advised by @Johnersh, a solicitor, whose view is that a claim that was not properly served within 4 months of it being filed, is dead.  There is no rule that allows that claim to be served this late so if the Claimant believes there is a cause of action, once the CCJ has been set aside, they can of cause serve a fresh claim to the right address but without the false added 'costs' that were never incurred and are in themselves an abuse of process due to trying to obtain monies by way of double recovery, that were never paid or incurred.

Johnersh

Ha! A thread that links back to my brief foray into writing niche PCN softcore lit. 🙂

It's very simple. If the court accepts that the claim form was not served, then it must set aside as it follows that C was never entitled to judgment.  Having identified that (and in the absence of any application to extend time for service) then once 4 months is up, the claim form expires for want of service.

I'd definitely not offer to keep it in play in my draft order, but I know others differ. Much depends on how confident/well researched you can be to make the point. 

Service of a claim form

7.5

(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

There's lots of case law. Google it and the rules for service of the claim form. It's not onerous for C to issue fresh proceedings (they don't have to) and its all part of their error. 

tommoCF

Many thanks again for all the valuable guidance.

My (telephone) set-aside hearing is scheduled for first week of next month, so not long.. Need to email through my phone number next week and thought I’d also (finally) email the draft order then too.  

I’ve been deliberating whether to stick with the original draft order (as worded above), or opt for the approach kindly suggested by @Johnersh, i.e. stating that the original claim has expired now so can’t be resubmitted by the claimant. I’m inclined toward the latter, in which case could the draft order reflecting that be worded as follows?: 

DRAFT ORDER

Upon reading the Defendant's application and witness statement dated xxxx 

IT IS ORDERED that:

1. The default judgment dated xxxxx be set aside.

2. The Claimant to pay the Defendant’s costs of this application to the sum of £255

3. Since the claim form was not served by the Claimant within four months of its date of issue, the claim shall be struck out.

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

I’ve been trying to re-read and digest the various CPR sections of relevance.. but still feel a bit sketchy about exactly why the claimant’s original service of a claim form (which I’ve never seen) was defective in line with CPR 13.2, as I cited on my N244 form? 

Having obtained the KADOE details from DVLA, the claimant (supposedly) sent the claim form to the address the DVLA provided. If the court accepts this as reasonable, how do any of the CPR directives which could deem that the service was defective come into play? 

Under CPR 6.9 covering service of the claim form it states that:

“(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’).”

Is the ‘reason to believe’ purely that there was no acknowledgement or any response from the defendant? Is that reason enough to believe, or can’t the claimant legitimately state they had no reason to believe the address they obtained from DVLA was an address at which the defendant no longer resides, meaning their service of the claim form was valid? There’s nothing specific I can find in the directives that states they should’ve done anything further in terms of checking the electoral register or asking the freeholder whether what the DVLA provided was my current address. That’s what I’ve suggested should’ve happened on my N244.. 

I guess the checking of those things would be the ‘reasonable steps’, but I can’t quite see how I can back that up using the CPRs - or which CPR states that no response constitutes a ‘reason to believe’?

As ever any further guidance/advice/clarification gratefully received! 

Coupon-mad

Is the ‘reason to believe’ purely that there was no acknowledgement or any response from the defendant?

Yes, that's a good reason to consider that the letters are perhaps not getting to the named recipient, and to do a trace before filing a claim, as the DVLA told PPCs they should, and at least one of the APA CoPs requires that. 

Also it is a sad fact that DVLA data is notoriously unreliable because they fail to update V5Cs when people update the address on their driving licence in good faith, thinking the DVLA will adhere to GDPR rules and change ALL databases...but  (in my opinion)  shockingly, they don't. The DVLA's system and address updating failure has been known to them for years. A DVLA representative said in a parking focus group as far back as 2016 that they wanted to sort it out...that was 5 years ago and pre-GDPR. 

It's one of the causes of the 85% of parking claims that go to default judgments every year and the MoJ are well aware of this, and planning changes.  Most probably liaising with the MHCLG who are bringing in a swathe of measures and new statutory framework for private parking, to regulate it in 2022:

MoJ (search it for the word 'parking' and you will see they know they are a main perpetrator):
https://consult.justice.gov.uk/digital-communications/default-county-court-judgments-2/supporting_documents/defaultcountycourtjudgmentsconsultation.pdf

MHCLG (one more Public  Consultation to come, hopefully in August, so keep your eyes peeled on this forum):
https://www.gov.uk/government/consultations/parking-code-enforcement-framework/outcome/parking-code-enforcement-framework-consultation-response

Johnersh

They had approx 1 year of corresponding to an address prior to issue, from which they never received any response.

It's not beyond the wit of man to at least consider that you may no longer be resident there. 

It's a misconception that last known address means that can simply fire on a claim to any address at which someone has once lived. The purpose of the provision is to prevent people avoiding proceedings entirely. It doesn't obviate the need to check the address or to undertake searches.

If you have a credit card, mobile phone contract or mortgage etc you will have pinged an Equifax check at some point. Those searches can be done for peanuts. It makes you wonder how the £60 bolt on charges for debt recovery have been incurred *Innocent face*

Le_Kirk

Is it worth adding the usual point 5 to the draft order that if the claimant discontinues: -

5. Should the Claimant discontinue the Claim after the CCJ is set aside [or at any time], 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.

Just a question as we know claimants tend to dip out and cut their costs.

henrik777

Le_Kirk said:

Is it worth adding the usual point 5 to the draft order that if the claimant discontinues: -

5. Should the Claimant discontinue the Claim after the CCJ is set aside [or at any time], 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.

Just a question as we know claimants tend to dip out and cut their costs.

Not on that one, no.

But bear it in mind if the suggested order is varied.