Surprise CCJ old address, set aside consent denied!

Jenni_D

1505grandad said:

".....Claimant shall pay the Defendant's costs summarily assessed at £255....."

see   https://forums.moneysavingexpert.com/discussion/6301314/court-fee-increase#latest   for increased fees

If the OP has already paid the fee it will have been £255.  

Coupon-mad

Could read the thread from today and add in the bit about the claim being struck out for want of service within 4 months:

https://forums.moneysavingexpert.com/discussion/6243827/bw-legal-letter-confused-about-what-stage-im-at/p14

I expect the wording is earlier in his thread, maybe in their Draft Order.

SSCCJ

Amazing @Coupon-mad and everyone else. Really appreciate it.

SSCCJ

Slight confusion about want of service, sorry to ask!

4 months service is from what time point to what time point? from alleged offence to issue of claim form, or from issue of claim form to delivery?

Many thanks.

SSCCJ

Please correct me but what I could understand is that it is between issue of claim form and the service of claim. So either the form was served or it was not (then time issue does not matter).

If it WAS served, how do we know that it was not served within 4 months?

Please ignore my ignorance, just trying to understand it better. 

Johnersh

Once a claim is issued (stamped) by the court, it must be served within 4 months of that date.

In parking claims this usually not an issue because the court process the paperwork and send it to the defendant within days. Once a claim is correctly served, there is no time limit on how long the litigation can take. 

However, in a scenario where the claim form is (for example) sent to an incorrect address so the true defendant has never had it, the 4 month rule potentially comes in to play.

By the time an incorrectly issued ccj is set aside it is highly likely it will be 4 months on from the date of issue, so one can argue for set aside and strike out. 

SSCCJ

I see I see... Thank you so much for clarifying it.

I am going to incorporate this and will post the WS and DO shortly.

SSCCJ

WITNESS STATEMENT

1.1.           I am XXXXX of XXXXXXX. I am a XXXX by profession and I am the DEFENDANT against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.

1.2.           This is my supporting statement to my application dated 30 September 2021 requesting:

a.                   A mandatory set aside for the Default Judgment dated XXXXmber 2020 as it was defectively served using an old address, pursuant to CPR 13.2.

b.                   An order for the original claim to be dismissed as it was not served within 4 months of the issue, pursuant to CPR 7.5 and the Claimant having failed to apply for an extension, pursuant to CPR 7.6,

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

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

1.4.       I understand that the Claimant obtained a Default Judgment against me as the Defendant on XXXXember 2020. I am aware that the Claimant is Walton Wilkins trading as Premier Parking Logistics, represented by DCB legal solicitors, and that the assumed claim of £XXX is in respect of unpaid Parking Charge Notice on XXpril 2019 at my OLD residence XXXXXXXXX

1.5.       Since the claim form was not served at the correct address, I thus was not aware of the Default Judgment until 08 September 2021. This was when my finance application got rejected and I had to seek online services for background check and a credit report.

1.6.       The said Parking Charge Notice, which is the basis of Court Judgment, was dated XXXXl 2019 and sent to my then address XXXXXX I was out of country but replied to Premier Parking Logistics via email on my return on 1XXXX 2019 and raised a few points to state why the notice was inappropriate.

1.7.       The Claimant replied via email on XXJune 2019 but did not address those points in full, deliberately or otherwise.

1.8.       There was no correspondence for 18 months until the Claimant decided to pursue for a default Judgment.

1.9.       I had moved out of that address in September 2020, 3 months before the Default Judgment may have been sent. In support of this I can provide a scanned copy of my tenancy agreements, email confirmations from DVLA of change of address, alongside copies of council tax and utility bills.

1.10.    I would submit that an address obtained on or around XXX 2019 is not reasonable knowledge a significant time later (18 months) when Default Judgment was obtained.

1.11.    I may also state that all my records were updated promptly and it would have been a matter of a phone call or an email or a letter in post indeed to confirm the correct address.

1.12.    I believe the Claimant has behaved unreasonably in pursuing a claim against me without confirming the Defendant’s correct contact details at the time of the claim. They had also failed to explore an ‘alternative place or method’ to inform/enquire the Defendant, in my case in particular, whereby a method of communication had already been established i.e. email correspondence.

1.13.    On that basis, I believe the Claimant has not adhered to rule CPR 6.9 (3) and CPR 6.9 (4) where they had failed to show due diligence by using an address that the Defendant no longer resided. The claimant did not take reasonable steps to ascertain the correct address of my residence despite having some 18 months to conduct it, or using an already established mode of communication. This has resulted in the claim being incorrectly served to an old address and an irregular Judgment. This leads to no service; they were not entitled to Judgment and the Court must set aside the claim as per CPR 13.2.

1.14.    To submit a set aside application, I have explored all available avenues (internet and County Court services) to gain further information in this matter.

1.15.    I also wrote to Premier Parking Logistics and again raised the same point as I did in my email on XXX2019. I asked them to consent to my set aside application which the Claimant refused.

1.16.    I have been therefore forced to submit my set aside application without consent.

1.17.    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 despite my full-time job, working long hours as a healthcare professional in an ongoing pandemic, in between changing hospital jobs, and moving house with wife and 2 toddlers, I have put my utmost effort to obtain necessary information and have managed to submit the case application within three weeks of discovering the Default Judgment.

1.18.    According to publicly available information, my circumstances are just one of many hundreds, if not thousands, of examples. The parking industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and their families, and the justice system across the country.

1.19.    In support of the request for a mandatory set-aside I will rely upon Marshall & Rankine v Maggs  [2006] EWCA Civ 20 (25 January 2006), specifically paras 68 – 70 per Dyson LJ, which are inclusive of the following key points:

68.     “... As a matter of the ordinary meaning of words, to say "I know X" entails the proposition that "X is true". We do not see how the phrase "last known residence" can be extended to an address at which the individual to be served has never resided.

69. We accept that the rules should, if possible, be interpreted in a practical way which promotes certainty and minimises the risk of satellite litigation. This does not, however, warrant rewriting the rules so as to make them bear a meaning which they plainly do not have. Nor do we see how interpolating the words "or reasonably believed" in the phrase "the address known to be last residence of the individual" adds to certainty or reduces the risk of satellite litigation.

70. It follows in our judgment that the judge was right to hold that service was not effected on the defendant's last known residence for the simple reason that he had never resided at 47 Hays Mews.”

1.20.    I rely upon the following authorities to support that claim is defective as it was not served to a “last known address”:

HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)

HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012)

1.21.    In support of the request that the claim be dismissed due to claim not being served within 4 months of issue and the claimant having failed to apply for an extension I rely again upon Marshall & Rankine v Maggs  [2006] EWCA Civ 20 (25 January 2006), specifically paras 100-105 which are inclusive of the following key points:

100. Service of the claim form is a crucial step in the proceedings. The rules are designed to ensure, so far as possible, that the claim form is brought to the attention of the defendant, and where he is represented, his legal representatives. Normally, this must be done within 4 months of the date of issue. CPR 7.6 permits an extension of time for service. If an application to extend time is made after the time for service has expired, the CPR 7.6(3) pre-conditions must be satisfied.

101. […] If a claimant purports to serve on an address which he mistakenly believes is the last known residence of the defendant, it is therefore necessary to consider the reasonableness of his belief that the address is indeed the defendant's last known residence.

102. […] In many cases, the claimant will know the address for certain. Where the position is less clear, a direct request of the defendant, or his legal representatives (if they do not have instructions to accept service) may yield an answer. Other enquiries may have to be made.

103. But the present case shows how dangerous it can be to make assumptions. In our judgment, the first claimant did not have a reasonable basis for concluding that 47 Hays Mews was the defendant's last known residence. He did not know that it was his last known residence. He assumed that it was. He had no real basis for believing that it was the defendant's residence.

 

104. […]  As the judge pointed out at para 77 of his judgment, there were other steps that the claimants could have taken if time had permitted: see para 89 above. Since the defendant was the director of a number of companies, another possible step would have been to carry out an on-line search of the Companies House directors' database.

 105. Exercising the discretion given by CPR 7.6(2) afresh, we conclude that this is not a case in which it would be right to extend time for service of the claim form. It follows that the claimant's appeal must be dismissed.

1.22.    I have also read the consultation on Default County Court Judgments by Ministry of Justice published 21 February 2018 and it makes an insightful read. Some excerpts are: ‘the claimant must consider whether there is an alternative place or method by which the claim may be served’. And, ‘Department for Communities and Local Government (DCLG) is reforming parking practices and has already taken steps to tackle rogue private parking operators, including banning wheel clamping and towing. DCLG is fully aware of the concerns related to County Court Judgments that follow parking charges and is considering how they can deliver standardised practice across all parking companies, eliminating unfair charges and reducing the instances of claims where the consumer may be unaware of a parking charge being applied’. ‘Where the claimant is unable to ascertain the defendant’s current postal address, the claimant may apply to the Court for service at an alternative place. This may include service via an email address if the claimant and defendant have been in communication via those means and the Court agrees this is appropriate’.

2.1.       I believe the Claimant’s practice is a clear example that parking companies’ conduct is not anymore used as a deterrent for citizens to park insensibly, majority of which are law abiding, instead an impending and instantaneous launch of legal action against most of them, leading to default Judgment by Court in 85% of the 1.1 million cases in year 2016/2017, and majority of these were parking tickets.

2.2.       Considering all above I submit that the Claimant has not met the service requirements of CPR 6.9 and 7.5. respectively:

A: service has not been effected at a valid address and,

B. for want of valid service, these proceedings have not been served within 4 months of issue.

2.3.       If there was a case that the Court might not be satisfied on above grounds, I may submit that the Court should use its discretionary powers under CPR 13.3, as there is a profound prospect of defending this claim because of several reasons (draft defence can be furnished on Court’s orders).

2.4.       I respectfully request the Court that the Default Judgment against me should be set aside and the claim should be dismissed in its entirety. I request the Court to kindly consider the reimbursement of the fee of £255 from the Claimant should this request be successful.

Statement of Truth:

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of Court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Full Name: XXXXX

(Defendant)

Dated XXXXer 2021

SSCCJ

_________________________________

DRAFT ORDER
_________________________________

Upon reading the Defendant's application and the annexed witness statement dated 30 September 2021

IT IS ORDERED that:

1. The default judgment dated XXXX2020 be set aside pursuant to CPR 13.2.

2. Pursuant to the Case Management powers of the Court under CPR 3.4(1) and the requirement for service of proceedings under CPR 7.5(1) the Claimant's claim is struck out for want of service within 4 months of issue.

3. The Claimant does pay the defendant's costs and consequential costs of the application.

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

SSCCJ

Please help and look at the WS and draft order above. Would be immensely grateful.