CCJ from PPS- Help

Tomorrow123

This is my final draft for my set aside with consent. Just waiting to hit sent and will email to BW Legal! 

Can anyone give it a skim? I used most of the info from the henrik77 template I found. 

Thank you

Dear Premier Parking Solutions,

On 07/06/2021 a CCJ which was processed on your behalf by BW Legal. They attempted to serve the claim form at xxxxxxxxxx Cardiff

On the 28/07/20 I moved to  Cornwall xxxxxx. I notified all of my utilities that I would be moving address. I notified Cardiff County Council on the 01/07/2020 of my upcoming move. I also notified Welsh Water, who sent follow up correspondence on the 23/07/20 to my new address. A couple of days later, on the 29/07/20, I received correspondence from energy supplier EON at my new address. Due to my circumstances I also applied for Universal Credit at my new address, this was completed on the 21/07/2020. More recently I applied for a credit card with Aqua on the 25/05/21. 

 

As is stated in the code of practice , ‘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.’ I received no correspondence from yourselves relating to the PCN and was not given a chance to pay or defend myself.

As a result of this, service was defective and the court must set aside your judgment pursuant to CPR 13.2

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13#13.2

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.

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part12#12.3

The relevant time for filing an acknowledgement of service

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part10#10.3

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 should result in 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 much more cost effective than obtaining the same result without consent. I also request that you send me a copy of the claim form submitted or at very least the particulars of the claim, along with any proof you have that you attempted to trace my location before the claim was filed.

Please respond within 14 days.

Yours Faithfully,

 xxxxxxxxxxx

tboo

PCN issued: 26/08/20 (No PCN left on car as I was completely unaware this had happened)

I moved to Cornwall from Cardiff on the 28/07/20

Did you have Royal mail redirection by any chance?

Question for the regulars -  Just in case a judge asks it or does it not matter, as a trace should be performed to catch non-responders?

Coupon-mad

Isn't that the wrong Code of Practice?  It looks like you quoted the BPA one unless I am recalling it wrong.

Tomorrow123

Yes that is the BPA one. I will state that is in the BPA code of practice so they know what I'm talking about! Will change that then send!
Then start work on my Set Aside without consent! Fingers crossed they do consent & its not needed!

Tomorrow123

tboo said:

PCN issued: 26/08/20 (No PCN left on car as I was completely unaware this had happened)

I moved to Cornwall from Cardiff on the 28/07/20

Did you have Royal mail redirection by any chance?

Question for the regulars -  Just in case a judge asks it or does it not matter, as a trace should be performed to catch non-responders?

No I didnt unfortunately. We decided to rent our house out so expected that the tenant may have passed on any important looking post!! But obviously not! 

Im hoping that the fact they did not do a thorough trace will be enough!

D_P_Dance

Your lease/AST usually instructs tenants to do this, all of mine do.

Tomorrow123

Hello All!!

I have been working on my set aside case (without consent) & just as well because I have had a response from BW Legal on behalf of PPS stating they are not willing to consent to a set aside.

What they said is below.

I have a few questions now:

• Do you think I have a case? From their email they make it sound like I am fighting a losing battle? They did a trace on equifax a number of times and it showed my old address. So I am at fault? Am quite terrified at the thought of having to go to court and have a judge shout at me.

• However, I think I qualify for help with court fee's so from what I have read I would be stupid to not try to get this removed from my file with a set aside (without consent), no matter how scary/overwhelming it may be. 

In order to do that I need to complete the following:

N244 form & help with fees form

WS

Draft Defence 

Draft Order

• Is there anything else I need to get prepared. I am hoping to have all of this done by the end of Oct latest. I'm hoping that will show the judge I am acting quick enough? 

• Lastly, based on the previous post im thinking I could contact the tenants of our property & ask them what they have been doing with the post addressed to us? Hopefully they have been returning to sender, that should work in my favour if so?

Thank you in advance for any advise

Responce from BW Legal:

Summary

 

We are advised by our Client that the contravention occurred on 26 August 2020 (Contravention Date) where the vehicle bearing the registration XXXXX (the Vehicle) was parked with no trace of payment. We are instructed that you were the driver and/or registered keeper of the Vehicle on the Contravention Date, and you entered  (the Car Park) at 15:52:30 and exited at 16:40:17, remaining within the Car Park for a total time of 47 minutes and 47 seconds.

The Parking Charge Notice (PCN) to Keeper was issued to you on 3 September 2020 at , Cardiff, . Our Client obtained your details and address from the DVLA. If this address was not correct as at the contravention date, this is entirely of your own doing, as it is a requirement under Regulation 18 (1) of The Road Vehicles (Registration and Licensing) Regulations 2002 for motorists to promptly notify the DVLA of any new name/address of the registered keeper of a vehicle, and a failure to do so can be deemed an offence. As our Client issued the PCN to the address provided by the DVLA, and received no returned mail, it is our Client's position that the PCN was issued correctly.

 

As our Client did not receive a response, we were instructed on the matter. Upon our instruction we conducted a trace through Equifax which confirmed you were living as stated at Cardiff. Another trace was conducted on 11 December 2021 which again confirmed the same address. At no time did we receive returned or undelivered post.

 

As no response was received our Client issued a County Court Claim through the County Court Business Centre (CCBC) on 9 February 2020, which was deemed served on 15 February 2021. We have not been notified by CCBC of any issues regarding service of the Claim form. As there was no response to the Claim form our Client requested a County Court Judgment (CCJ) on 7 June 2021.

 

Response

 

Be advised that our Client used the information provided by the DVLA in good faith and had no reason to believe the address to be incorrect. As stated above it is your legal responsibility as the registered keeper of the Vehicle to keep the DVLA up to date with any address changes.

 

We note your reference to various Civil Procedure Rules (CPR) with your main position being that service was defective and as such, the CCJ should be set aside under CPR 13.2. Be advised that we disagree that service was defective and in accordance with CPR 6.9 the Claim form was served at your last known address. Our Client made all reasonable attempts to confirm your whereabouts by conducting multiple traces though Equifax, and at no time did they received returned or undelivered post. As such, service of the Claim form was good and effective.

 

In light of the above, our Client is not willing to consent to an application to set aside the CCJ as they are satisfied there is no good reason to do so and the balance is due and owing.

 

Please be advised that the Claim form was issued from the County Court Business Centre so you will need to contact them for a true copy, we have attached a reference copy though for your convenience.

 

If you are unsure about the contents of any of our correspondence, we recommend you seek your own independent legal advice.

Coupon-mad

They did a trace on Equifax a number of times and it showed my old address. 

Where's the evidence of that then, and whether it ALSO showed alternative addresses?  Where is the evidence they got from any alternative CRA such as Experian or others?!   It's not always about what they do say, think about what they don't say here.  You know you were 'there to be found' and no doubt had changed address for your banking, Council Tax maybe or a tenancy rental, mobile phone etc. so you must have left a credit trail for them to see alternative addresses, one would assume.

It is a no-brainer for someone who qualifies for help with fees, to crack on and apply promptly now, next week, for a set aside without consent.  You have nothing to lose and are very likely to win.  Read several CCJ Set aside threads over the weekend to see how to do it.  All cases are the same, really, just read, learn and copy and adapt someone else's homework on any CCJ threads. 

Read at least ten.  No links, go research the form just be looking back from page one and clicking on all CCJ thread titles you find and reading them to see what stage they are at, and find several that are ahead of you where you can copy their work.

Tomorrow123

Hello all,

I have no enlisted the help of a friend who is a solicitor. I was finding it all quite overwhelming even after reading lots of other threads in their entirety.

We are building my case together and wondered if any of you know of any blogs/websites/documentation etc that states that  checking the DVLA once and conducting a search with Experian is not a reasonable search. They should have done more to find me. Are there any guidelines explaining what is reasonable? 

Thanks in advance!!

Coupon-mad

The IPC CoP says some wishy washy stuff about checking an address if a PCN was more than 12 months before, and the Civil Procedure Rules require every reasonable step to be taken to ensure the right address is used, before filing a claim.

Not sure which CPR but a solicitor can skim read them better than me, especially with my eyes being as they are at the moment (awaiting lens surgery).