Very confused, not sure whats going on with a CCJ

teknotel

Johnersh said:

The test for set aside is cpr 13. Your statement does not address which element of that rule is met. That is the basis for the application and where I would start for my application.

10 minutes on Google can find you helpful cases that may assist too. You can do worse than read g articles on this site. I do, regularly. 
https://www.civillitigationbrief.com/2018/07/28/service-of-the-claim-form-defendants-last-known-address-claimants-reason-to-believe-a-few-points-to-watch/ 

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.

With this they actually had all of my contact details, they just never used them. They had my vehicles registered address and they had my email which was how I appealed. Should I mention this?

In regards to addressing cpr 13, I don't really understand. I can't see anywhere under section 12.1, 12.2 or 12.3 that mentions a wrongly served address? Is there a different criteria here as well.

I am sorry this like reading another language to me, if I send what I have done is there a chance the judge will be able to read between the lines and just concentrate on the obvious facts of the case which are:

a) I clearly was not served any of the communication as I have a strong history of always replying to these requests. This was the third paeking fine from OPS for the exact same offence and I have always dealt with them until they stopped sending to the correct addresses they had listed for me.

b) I had full permission to park there, writted from the space owner and his in date permit. I had already succesfully appealed it through POPLA once prior in identical situation.

I am expecting a child in 2 weeks, I am currently working and doing everything at home because my partner is unable to do anything at all and we already have a 2 year old, I really cannot handle this at all and am stuggling under the weight of this. 

Does it have to be perfect?

Coupon-mad

In regards to addressing cpr 13, I don't really understand.

Read the other CCJ threads around yours right now!  You MUST explain who CPR 13.2 applies and your case should be a mandatory set aside, and failing that, how you have fulfilled the fallback position for a set aside that 'may' be granted under 13.3.

Does it have to be perfect?

Yes, in terms of explaining CPR 13 and how 13.2 applies, and if not, then 13.3.

Copy any other CCJ thread that's already done that.  We have been replying on at least 3 others today and loads more this past week.

CCJ set aside threads are everywhere and you can copy from their wording.  Just look down the thread list, for a few pages, clicking on any that have CCJ in the title.  Easy.  Copy.

teknotel

Coupon-mad said:

In regards to addressing cpr 13, I don't really understand.

Read the other CCJ threads around yours right now!  You MUST explain who CPR 13.2 applies and your case should be a mandatory set aside, and failing that, how you have fulfilled the fallback position for a set aside that 'may' be granted under 13.3.

Does it have to be perfect?

Yes, in terms of explaining CPR 13 and how 13.2 applies, and if not, then 13.3.

Copy any other CCJ thread that's already done that.  We have been replying on at least 3 others today and loads more this past week.

CCJ set aside threads are everywhere and you can copy from their wording.  Just look down the thread list, for a few pages, clicking on any that have CCJ in the title.  Easy.  Copy.

Is it the draft order that needs to explain this?

DRAFT ORDER

IN THE COUNTY COURT AT ONE PARKING LIMITED (Claimant)
And NAME (Defendant)

District Judge

 

UPON reading the Defendant's application dated 9th October 2021 and the annexed witness statement of NAME dated 19th October 2021 IT IS ORDERED that:

 

1. The judgment dated 06/04/2021 be set aside pursuant to Cpr 13.2. 

2. The claim struck out, pursuant to CPR 13.2, the claim form having not been served under CPR 13.2 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. If set aside, the claim having never been served, is dead. CLAIMANT has the option to issue afresh, the merits of the claim not having been ruled upon - if they wish to avail themselves of that. 

Le_Kirk

Read this posted yesterday by @Coupon-mad relating to the word "dead" and starting point 6 with "If" 1 December at 12:25AM

1505grandad

Also make sure the correct full name of claimant is stated.

Coupon-mad

It is the WS that must assert the rules that you are relying on. As I said, please just read a few others and copy.

These set asides are all the same; formulaic.  Copy what someone else's WS asserts about 13.2 AND the fallback position of 13.3.  It is easy, copy and paste additions to what you've already done and could be ready today.

teknotel

Added section in bold, is this it?

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 Ltd to pay the defendant £255 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 Ltd, 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.

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 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 £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.

Signed: ________________________________

teknotel

Slightly tweaked draft order

DRAFT ORDER

IN THE COUNTY COURT AT ONE PARKING LIMITED (Claimant)
And NAME (Defendant)

District Judge

 

UPON reading the Defendant's application dated XX December 2021 and the annexed witness statement of NAME dated  XX December 2021 IT IS ORDERED that:

 

1. The judgment ********** (what are these asterixs for lol) 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 DEFENDANTS costs of this application on an indemnity basis.

3.  The claim form was served (sent) to an incorrect address and the CLAIMANT had no proper basis to assert they sent the claim to a last known address, where no enquiry was made to ensure that it was still in use and DEFENDANT was "there to be found" on a simple directory enquiry check. 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 upon

teknotel

Am I there yet lol?

Coupon-mad

June 2020 PCNs, surely?  Not 2021!

And the fee is now (sadly) £275.

You haven't got CPR 13.3 in there as a 'fall back' option to rely on as a safety net .

And you haven't got in the WS, the authorities for why a claim defectively served cannot be ordered or allowed to continue if the litigation was filed more than 4 months ago.  Boxwood, etc.

See the other CCJ case I just replied on that is nearly there, ir any other CCJ thread from this past week.  Or search for Boxwood on this forum this last fortnight.