Very confused, not sure whats going on with a CCJ

1505grandad

"IN THE COUNTY COURT AT ONE PARKING LIMITED (Claimant)" ?

Le_Kirk

teknotel said:

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

The asterisks are in the example draft as: -

1. The judgment dated ********** be set aside. 

so that you can insert the date, as you did, then delete the asterisks - note the spelling and why the "lol"?

teknotel

Le_Kirk said:

teknotel said:

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

The asterisks are in the example draft as: -

1. The judgment dated ********** be set aside. 

so that you can insert the date, as you did, then delete the asterisks - note the spelling and why the "lol"?

Thank you. Lol is because I feel stupid asking all of these questions and taking so long to get this done, so laughing at myself.

Johnersh

As ever, no advice. In general terms:

A *draft order* needs only to say what the court orders (not why).

The *witness statement* is the evidence of fact, what the Claimant's application  seeks and why. It builds on the first question on the N244. 

To support the application it is usual to refer the court to the relevant rules and why. 

If the o/p is happy his documents address those points he may be ready. But do bear in mind these are also rules that need to be discussed in any hearing - get familiar with them.... 

Coupon-mad

teknotel said:

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

So @Johnersh is certainly saying remove #3.  You don't have a #4 there.

If you've looked at other set aside threads you will have seen the one just worked on by Rudeboy something or other (no link, go read it on the first few pages as we keep encouraging you.  He's just gone through what you are doing).

teknotel

Coupon-mad said:

teknotel said:

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

So @Johnersh is certainly saying remove #3.  You don't have a #4 there.

If you've looked at other set aside threads you will have seen the one just worked on by Rudeboy something or other (no link, go read it on the first few pages as we keep encouraging you.  He's just gone through what you are doing).

If I remove the second 3. (which should be 4), is do I just leave it as 5 points?

I am working on rudeboy raz thread now, will try again with the witness statement shortly. Thanks.

teknotel

Is this draft order ok?

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 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 upon

teknotel

I have had a good read through of rudeboy raz's thread and 13.3 is not mentioned anywhere directly so I don't know what to add, but have added some paragraphs about boxwood in case this is 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 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 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

Theres a massive buit about CPR but I have no idea where that would go into my sitness statement as it is presented in isolation:

1.3. have been left with no option but to request that the Judgment be set aside without consent from the claimant on the grounds that the claim form was never served, and CPR were not followed namely but not limited to:

CPR 13.2 that 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.

 

Here one such condition was not satisfied, namely the time for acknowledgement of service had not expired, because none had ever become applicable. 

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.

As I did not give an address to the claimant at which I could be served, primarily because I was not asked, CPR 6.9 applies.

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

The claimant, having not obtained an address directly from myself, and having obtained an address from a 3rd party quite some time ago and received no response, did not have the requisite knowledge nor perform the requisite "reasonable diligence" required to find my correct address in order to serve the claim form.

 

If the correct “Usual or last known address” was obtained from the search, as mentioned by the Gladstone’s representative on the telephone call made on the 23rd of November2021, then it was not used to serve the claim form under their own submission only 1 “letter” was sent to this address, to which further strengthens the case for the Judgment to be set aside on the grounds the Claimant did not follow  

Does this need to go in or is my statement above ok?

Le_Kirk

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