CCJ. Parking fine sent to old address

Olive_j

Redx said:

you would be liable for the original judgment total PLUS the £100 on a with consent option , so all costs , everything , unless you negotiated with the parking company and they agreed to pay the £100, unlikely but you never know , so yes, probably £357 ( £257 + £100)

a judge would rubber stamp it , 2 minutes work, no need for them to even think about it, or be happy or sad

its the contested route for £255 where judge 1 sets it aside, then judge 2 at a later date considers all the statements and exhibits , that is what your £255 pays for (you can ask for it back, but no guarantees)

I really don’t know what to do. Does anyone know where I can find a reputable solicitor who can help me. I’m really feeling very hopeless and need to get this over with as soon as I possibly can. 

Redx

a solicitor would charge you a lot of money for this , probably hundreds of pounds or more , with no guarantees at all

they can charge upwards of £100 per hour , its a few hours work, do the maths

the SRA have a list of registered solicitors in your area however

Olive_j

Redx said:

a solicitor would charge you a lot of money for this , probably hundreds of pounds or more , with no guarantees at all

they can charge upwards of £100 per hour , its a few hours work, do the maths

the SRA have a list of registered solicitors in your area however

I understand that but it’s making me feel mentally unwell and it’s clouding my ability to deal with the situation effectively. I feel 6 years of my life is at stake. 

henrik777

The applicable rules are those of the court. Whilst the notification to DVLA may play a part it should be a thing that is not the be all and end all. This is confirmed in the court rules and the code of practice to which the company will subscribe to.

https://www.britishparking.co.uk/write/Documents/AOS/AOS_Code_of_Practice_January_2020_v8(2).pdf

32.1b Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavours to ensure that the person being written to is the correct party.

The other trade association have similar.


http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part01#1.1

The court rules say both parties need to act reasonably, minimise costs etc.

The overriding objective

1.1

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(a) ensuring that the parties are on an equal footing and can participate fully in proceedings, and that parties and witnesses can give their best evidence;

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(i) to the amount of money involved;

(ii) to the importance of the case;

(iii) to the complexity of the issues; and

(iv) to the financial position of each party;

(d) ensuring that it is dealt with expeditiously and fairly;

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and

(f) enforcing compliance with rules, practice directions and orders.

Duty of the parties

1.3

The parties are required to help the court to further the overriding objective.

If CAB say don't ask for consent to make it cheaper, easier and less of a burden on court resources then quite simply they are wrong. It is a duty imposed by the court rules that could cost £££ if ignored.

The judgment should be set aside as the particulars of claim have not been served and thus the claimant was never entitled to default judgment.

CPR 13.2 states

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

CPR 12.3(1) states

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.

The relevant CPR for acknowledgment of service is cpr 10.3 which states

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

CPR 6 deals with service.

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

The current CPR 6.9 (3)

(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’).

Further the trade body that claimant subscribes to say xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

As the claimant had no response and the code of practice to which they subscribe places them under a duty to check the address in these circumstances, which i submit aligns nicely with the court rules, i submit the claimant had "reason to believe"

As the claimant had "reason to believe" the mandatory steps in 6.9(4) must be taken before using a last known address. Sajid -v- Nuur (Central London County court 30/7/18)

 (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.

(5) If, under paragraph (4)(b), there is such a place where or a method by which service may be effected, the claimant must make an application under rule 6.15.

(6) Where paragraph (3) applies, the claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the claimant –

(a) cannot ascertain the defendant’s current residence or place of business; and

(b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b).

The claimant has shown no evidence of taking any serious steps to locate xxxx and as such purported service is bad.

Richard Salter QC in Idemia France SAS v Decatur Europe Ltd & Ors [2019] EWHC 946 (Comm) (15 April 2019) said

The intention behind these substituted provisions of the CPR is plain. It is to provide a simple, clear and straightforward code relating to service, balancing the interests of claimants against the:

.. fundamental principle of our law that no one is to be found guilty or made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them ..[33]

Under that code, a claimant is entitled to serve a defendant at his "usual or last-known residence" within the jurisdiction. However, the claimant can only rely upon "last-known" if it he has no reason to believe that that is not still the defendant's usual residence. If the claimant does have reason to believe that the defendant is no longer usually resident at that address, the claimant cannot validly serve the defendant at that address, but must take reasonable steps to find out where the defendant does now live, or a place and/or method by which the proceedings may effectively be brought to the defendant's attention. If the claimant can ascertain the current address or a way in which the proceedings can effectively be brought to the defendant's attention, the claimant must apply to the court under CPR 6.15 for an order permitting service by an alternative method or at an alternative place. Only in the exceptional case where, having taken the required reasonable steps, the claimant cannot discover the defendant's current address or any alternative means of bringing the proceedings effectively to the defendant's attention, can the claimant revert to service at the "last-known" address of the defendant.

The scheme of this code gives rise to 2 subsidiary questions: first, what is the date by reference to which the claimant's knowledge and belief is to be assessed; and, secondly, what standard of "reason to believe" is required in order to trigger the procedure required by CPR6.9(3)?

With regard to the relevant date, questions of jurisdiction are normally to be determined by reference to the date of the commencement of proceedings, here 6 June 2018[34]. The reason for that is to enable the claimant to know at the time proceedings are commenced that they have been commenced on the right court. In accordance with that principle, in her recent judgment in the case of Tugushev v Orlov[35], Carr J held that:

The time for determination of [the defendant's] domicile or usual residence is the date of issue of the claim form.

The use of the date of the commencement of proceedings, however, makes much less practical sense in the context of the code which I have just described. In the present case, Idemia properly wrote pre-action letters. However, the position can better be tested by considering a claimant who has failed to take that sensible course, has issued proceedings believing that the defendant is usually resident at a particular address within the jurisdiction, but has thereafter expressly been told that the defendant has moved to a different address within the jurisdiction (which is supplied). Could it be right that that claimant could still validly serve at the original address as the "last-known" address, while actually knowing that it was no longer a valid address for the defendant? It seems to me that that is unlikely to have been what the framers of the code intended.

As is pointed out in the notes at paragraph 12.3.2 of Civil Procedure, a default judgment obtained after valid service under CPR 6.9 at the defendant's last-known address cannot be set aside as of right simply because the proceedings have not come to the attention of the defendant. Such a defendant must comply with CPR 13.3(1), and must satisfy the court that they have applied promptly and that their defence has a real prospect of success or that there is some other compelling reason why a trial should be conducted. That all suggests that the rules should be interpreted in a way which limits the circumstances in which valid service can be effected at an address which the claimant has reason to believe at the moment of service is no longer current.

As for what amounts to "reason to believe", it would not be helpful for me to attempt to gloss the words of the CPR. However, the fact that Idemia persisted in serving the present action at York Way, despite having been expressly told that Mr Rahman no longer lived there, may perhaps indicate their belief that claimants are entitled under CPR 6.9 to disregard what they are told by defendants about where they actually live, on the basis that defendants have an incentive to lie about such matters in order to evade service.

In my judgment, the wording and structure of the new code means that any such belief would be misconceived. There may, perhaps, be cases in which a claimant would be entitled to continue to believe (for the purposes of relying on an address as the "last-known" address) that a defendant continued to live at a particular address, despite that defendant's protestations to the contrary. But, in my judgment, such cases will be rare. The requirement under CPR 6.9(3) to "take reasonable steps to ascertain the address of the defendant's current residence" is not an onerous one. If, as in the present case, the defendant can be contacted, a simple first step would be to ask the defendant for their address. Claimants who choose not to take such reasonable steps, in the face of protestations by a defendant that the address which the claimant has for them is wrong, do so at their own risk.

The consequences of bad service is summed up by  LJ Treacy 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 (my italics). 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)."

And LJ McCombe

"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."

I would conclude that a set aside is mandatory under CPR 13.2 due to the claimants incorrect service to an address their own paperwork shows they suspected or to quote cpr, had "reason to believe" xxx no longer resided at.

Add in your other bits at the required times.  (where i say claimant, respondent is more accurate but i'm sure the court will distinguish)

That's pretty much a copy and paste from a previous thread so don't copy without reading.

Also you may wish to check your home insurance policy for legal cover. But pick a solicitor wisely.

Coupon-mad

YOU DO NOT NEED A SOLICITOR TO FILL IN A SINGLE N244 FORM AND WRITE A WITNESS STATEMENT TO EXPLAIN YOU HAD MOVED.   YOU CAN DO THIS.  

It is easy.

currently on hold to Citizens Advice. 

Utterly pointless, as you gathered, he even had to read our advice to understand it!

Stop panicking and talk to a friend who isn't so stressed and invested in it, someone good at admin.  Fill in the N244 with the help of a second pair of eyes.  The NEWBIES thread tells you how to fill the silly form in, question by question!

Did you read that I already told you, the only (one) victim who used a solicitor this year (and threw a three figure sum of money down the toilet, by wasting their time on that) regretted it as they were clueless that parking cases are easy to set aside and then defend and win?

Olive_j

Coupon-mad said:

YOU DO NOT NEED A SOLICITOR TO FILL IN A SINGLE N244 FORM AND WRITE A WITNESS STATEMENT TO EXPLAIN YOU HAD MOVED.   YOU CAN DO THIS.  

It is easy.

currently on hold to Citizens Advice. 

Utterly pointless, as you gathered, he even had to read our advice to understand it!

Stop panicking and talk to a friend who isn't so stressed and invested in it, someone good at admin.  Fill in the N244 with the help of a second pair of eyes.  The NEWBIES thread tells you how to fill the silly form in, question by question!

Did you read that I already told you, the only (one) victim who used a solicitor this year (and threw a three figure sum of money down the toilet, by wasting their time on that) regretted it as they were clueless that parking cases are easy to set aside and then defend and win?

I’ve been on the forum for the past 12 hours and all I’ve managed today is to send off the SAR! 

I’m currently amending a template from another user I found on Thursday to send to the PCN, asking for the set aside. 

Coupon-mad

Sounds good, copy from another case, ask for consent to set aside, but DO NOT pay the PCN. 

Give them seven days to respond and start preparing for a contested set aside anyway.

Olive_j

I’ve also realised the claim form was sent 8 months after the electoral register dates for my old address. However, there is a gap and my new address is not listed on the electoral register until one month after the claim form was issued. 

Can I still mention mortgage and utilities? Or does this show they have done their best to contact me?  

Redx

I would mention everything , especially the tracing issues etc 

Most judges will agree to a set aside if incorrect address was used , should it come to a contested set aside , and parking companies know it

Ps , trust me on this , you will not get better advice than on here , free too , even better than any solicitor as most don't deal with this topic

A handful probably do , but it's finding them , I know 2 that don't for starters !!

Olive_j

Redx said:

I would mention everything , especially the tracing issues etc 

Most judges will agree to a set aside if incorrect address was used , should it come to a contested set aside , and parking companies know it

Ps , trust me on this , you will not get better advice than on here , free too , even better than any solicitor as most don't deal with this topic

A handful probably do , but it's finding them , I know 2 that don't for starters !!

My worry is the tracing issues are down to me. There was no address down on the electoral register when they sent the claim form. And I’d not updated the v5. The only dated piece of evidence showing on my credit report is the mortgage. Banking etc shows when the account was first started, and my current address but doesn’t show me what it changed to that address so doesn’t help. Can I use information NOT on my credit report? I.e council tax?