Very confused, not sure whats going on with a CCJ

teknotel

Le_Kirk said:

teknotel said:

Is this draft order ok?

1. The judgment ********** (what are these asterisks asterixs  for lol) dated 06/04/2021 be set aside. 

See my post here 3 December at 4:54PM <<<<<<LINK

1. The judgment dated 06/04/2021 be set aside. 

2. The claim struck out as the claim form having not been served within 4 months of issue

3.The Claimant do pay the Defendant’s costs of this application on an indemnity basis.

4 The absence of any response to mandatory pre-action correspondence created at least the likelihood DEFENDANT had moved which therefore mandated further enquiry.

5 CLAIMANT was not entitled to default judgment having failed to comply with basic enquiries to obtain a service address and having failed to serve on DEFENDANTS usual residential address.

6. CLAIMANT has the option to issue afresh, the merits of the claim not having been ruled upon1. The judgment ********** (what are these asterixs for lol) dated 06/04/2021 be set aside. 

teknotel

WITNESS STATEMENT

I am NAME, and I am the defendant in this matter. This is my supporting statement to my application dated ** December 2021 requesting to:

a. Set aside the default judgment dated ** April 2021 as it was not properly served at my current address.

b. Order for the original claim to be dismissed.

c. Order for the claimant One Parking Solution Limited to pay the defendant £275 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 ** April 2021. I am aware that the Claimant is One Parking Solution Limited, and that the assumed claim is in respect of unpaid Parking Charge Notices from the 10th June 2021 at the Essex Place Car Park, Brighton, Sussex. I contest this charge for the reasons outlined in the attached draft defence.

1.3. The claim form was not served at my current address, and I thus was not aware of the Default Judgment until 19th October 2021 following a letter from a debt collector working on behalf of One Parking Solution.

1.4 The address on the claim is ADDRESS. I moved out of this property April 2017. I still own this property and rented it as short let accomodation at the time. I then moved into a rented property, which was my previous address at ADDRESS until the 2nd February 2020, when I moved into my current address at ADDRESS. In support of this I can provide a copy of my tenancy agreement for ADDRESS which was where my vehicle was registered and where I where I would reside on the electoral roll at this time; Schedule A attached.

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 CCJ was lodged onto my credit file on the 19th October 2021.

1.5.2 On 19th October 2021 I contacted the County Court Business Centre via phone to obtain relevant information relating to this default judgment.

1.5.3 On the 12th of November I received the information about the alleged charge after submitting a subject access request with One Parking Solution Ltd.

1.5.4 I learned within the subject access request data that I had appealed the charge on the 25th of July 2019 and the reply and all subsequent communications had been sent to the wrong address as noted in 1.4.

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

1.6 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. The defendant 'there to be found' for the sake of a 29 pence bulk Experian trace or similar very inexpensive and immediate CRA address check or vehicle check with the DVLA, but despite having an in-house legal team headed by a barrister, this Claimant took no steps whatsoever to check the address. 

1.7 On that basis, I believe the Claimant has not adhered to 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 the address of my current residence despite having some 20 months to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgment.

1.8 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.

1.9 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.

2.0 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.

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…”

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.

2.1 The Defendant has no details of this claim, nor the 'parking charge' that it presumably relates to, 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).

2.2 believes the Claimant did not follow CPR especially 

(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’).

(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).

With such disregard for Court Proceeding Rules I would like to argue that similar errors could have been made within the claim itself, and had I had the opportunity to see the claim particulars I may well have been able to put forward a defense against the claim.

2.3 have acted promptly in the matter and if failing the judgement set aside under CPR 13.2 I would like to defend the Claim for reasons mentioned above and kindly request a set aside under the CPR 13.3.

2.4 kindly request the Court to order the claimant to reimburse me the Defended the fee in making this application.

2.5 have at no point tried to evade any claimants, and could not have done anything in my powers to avoid the default judgment for a claim I had knowledge of.

2.6 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 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.

Signed: ________________________________

teknotel

Ok I found 13.3 stuff, is this it now?

Coupon-mad

I'd remove #3 and 4 from that Draft Order as they are just commentary/reasons, not what you want the court to order.  Read my reply here to ParkingMachine, you've probably seen it as I expect you are (should be) reading other CCJ threads from today to learn from:

https://forums.moneysavingexpert.com/discussion/comment/78805942/#Comment_78805942

teknotel

Is this what you mean?

DRAFT ORDER

UPON reading the Defendant's application dated 04/12/2021 and hearing from the Defendant in person, and UPON the court taking note that the Claimant was not entitled to default judgment, having failed to serve on Defendant's usual residential address

It is ordered that:

1. CLAIMANT was not entitled to default judgment having failed to comply with basic enquiries to obtain a service address and having failed to serve on DEFENDANTS usual residential address.

2. The judgment dated 06/04/2021 be set aside. 

3. The claim struck out as the claim form having not been served within 4 months of issue

4. CLAIMANT has the option to issue afresh, the merits of the claim not having been ruled upon. The judgment dated 06/04/2021 be set aside. 

Coupon-mad

Remove your #1 as you can see that's repetition.

teknotel

DRAFT ORDER

UPON reading the Defendant's application dated 04/12/2021 and hearing from the Defendant in person, and UPON the court taking note that the Claimant was not entitled to default judgment, having failed to serve on Defendant's usual residential address

It is ordered that:

1. The judgment dated 06/04/2021 be set aside. 

2. The claim struck out as the claim form having not been served within 4 months of issue

3. CLAIMANT has the option to issue afresh, the merits of the claim not having been ruled upon. The judgment dated 06/04/2021 be set aside. 

KeithP

But you have lost the line...

3.The Claimant do pay the Defendant’s costs of this application on an indemnity basis.

I think CM's earlier post that said 'remove #3 and #4' should've said 'remove #4 and #5'. 

1505grandad

".....Defendant's application dated 04/12/202..."

Is THIS a c & p error?

Coupon-mad

KeithP said:

But you have lost the line...

3.The Claimant do pay the Defendant’s costs of this application on an indemnity basis.

I think CM's earlier post that said 'remove #3 and #4' should've said 'remove #4 and #5'. 

Yes, sorry!

There is also repetition of 'The judgment dated 06/04/2021 be set aside' which needs removing from the end.