Parking final from Civil Enforcement Ltd and resulting CCJ - Help Needed!

Le_Kirk

@Ellkat73 you really need to start your own thread/discussion so that these two cases do not get confused; however, quick answer to your question is no, that will get it removed if you are paying before the deadline on the judgment but it does not get it set aside.
@djhodgko here is a link to a thread about a set-aside: -
https://forums.moneysavingexpert.com/discussion/comment/77131023#Comment_77131023
It is old but the reasoning remains the same, use it as an example of style and format.  The six-point draft order needs to be in Word format so the judge can modify it.  Don't forget to change dates to suit your case.  Send everything with your N244.

djhodgko

Hi Le_Kirk,

Ok I feel we are getting somewhere. 

Here is my Witness Statement for section 10 of N244 and the Draft Order.

I have but notes with ** that need some advice on if possible and also will take any other feedback on board. 

WITNESS STATEMENT

I am XXXX and I am the defendant in this matter. This is my supporting statement to my application dated  November 2021 requesting to:

a. Set aside the default judgment dated XX March 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 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 Judgement against me as the Defendant on 23rd March 2021. I am aware that the Claimant is XXXX, and that the assumed claim is in respect of unpaid Parking Charge Notices from the XX March 2020 at Car Park the Whitworth Centre Car Park, Darley Dale. 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 Judgement until 23rd November 2021 following a routine Experian credit check before looking to apply for a credit card.; as found in Schedule (X) 

**do I need to take screenshot from the Experian report and print?

The address on the claim is XXXX. I moved to my current address at XXXX on the 16th December 2018. In support of this I can provide a scanned copy of my electoral register & utility bills dated before Charge Notice on March 2020; Schedule (X) 

** I moved in with partner so majority of bills etc under her name. Believe at time only had electoral register, photo driving licence and maybe work details/pay slips with current address, do I provide copies of these

1.4. 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;

1.4.1 I discovered a CCJ was lodged onto my credit file on the 23rd November 2021.

1.4.2 On 23rd November I contacted the County Court Business Centre via phone to obtain relevant information relating to this default judgement.

1.4.3 On November 2021 I have wilfully submitted my case in order to set-aside this judgement and fairly present my case.

1.5. 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.

1.6. 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 12 months to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgement.

1.7. 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.

1.8. Considering the above I was unable to defend this claim. I believe that the Default Judgement 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.

DRAFT ORDER


Upon reading the defendant’s application dated 23/03/2021

It is ordered that:

1. The judgment dated 23/03/2021 be set aside.

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

3. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4pm on (**what date from submitting N244 form is best to put) the claim will be struck out without further order.

4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm (**what date from submitting N244 form is best to put) 

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

6. Should the court reserve costs in the case as an alternative to paragraph 2, such costs of this application will become payable if the claimant discontinues it's claim.

KeithP

In your Draft Order...
1) the first date is wrong. Your application is not dated 23/03/2021.
2) in paras 3 and 4 leave the date as dd/mmm/yyyy. It is for the judge to assign real values to those.

djhodgko

Hi Keith P, Le_Kirk, 

Thanks for pointing those two mistakes out, I have amended on my word document so date for application is the date I send the form and documents and for paras 3 & 4 will edit to what you have advised. 

In regards to filling out the N244 form for option 3 is it ok to just put the following - 

An order that the judgement in default is set aside pursuant to CPR 13.2, alternatively 13.3, and the defendant be allowed to file a defence in the case. The defendant only discovered the judgment when they checked up to the Experian credit reference agency on 23rd November 2021 and saw the CCJ. 


The only other things I need advice on is these points from 1.3 of witness statement - 

1.3. The claim form was not served at my current address and I thus was not aware of the Default Judgement until 23rd November 2021 following a routine Experian credit check before looking to apply for a credit card.; as found in Schedule (X) 

**do I need to take screenshot from the Experian report and print?

The address on the claim is XXXX. I moved to my current address at XXXX on the 16th December 2018. In support of this I can provide a scanned copy of my electoral register & utility bills dated before Charge Notice on March 2020; Schedule (X) 

** I moved in with partner so majority of bills etc under her name. Believe at time only had electoral register, photo driving licence and maybe work details/pay slips with current address, do I provide copies of these

1505grandad

For consistency:-

"DEFAULT JUDGMENT"

Correct spelling of "Judgment" in this context however there are several instances where a middle "e" has been incorrectly included  -  Google CCJ

Coupon-mad

I'd say no need to attach your Experian report.

I would attach evidence of having moved and any bills and driving licence that shows that address, and add to your witness statement that you were 'there to be found' for the sake of a 29pence bulk Experian trace or similar very inexpensive and immediate CRA address check, but despite having an in house legal team headed by a barrister, this Claimant took no steps whatsoever to check the address. 

There would have been reason to believe the motorist was not at the address due to no replies being received to letters over a period of months/years. 

This is a mandatory set aside situation pursuant to CPR 13.2 but the Defendant has also acted promptly and has good prospects of defending any claim from this Claimant who, the Defendant has ascertained, is a serial litigator of badly prepared parking cases with little evidence.

Therefore, CPR 13.3 also applies, to further support the application to set aside the CCJ.

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.  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).

There are several authorities for this, including the judgment in Boxwood Leisure Ltd v Gleeson Construction Services Ltd & Anor [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…”


(You could also add that last bit to the Draft Order, that this claim was defectively served and having noted that the proceedings were issued more than 4 months ago, is hereby struck out). 

@Johnersh may be able to word that better.  It's worked in at least one case here but I can't recall how it was worded.  The case law is summarised here:

https://www.civillitigationbrief.com/2021/04/19/another-actions-fails-because-of-late-service-of-the-claim-form-neither-cpr-3-9-or-3-10-can-dig-the-claimant-out-of-this-hole/

Johnersh

It's an argument in 2 parts. First is the set aside. The further argument if the court finds that the claim form was not properly served (so that's not (a) to a correct address and (b) within 4 months of issue), then the claim is dead.

That is esp the case where there is no application before the court for service by alternative means or to an alternative address. It is unsurprising that the claimant has made no such application. Issuing a fresh claim would be cheaper. 

My point is that in the absence of an application having been made by the ppc to remedy their procedural error, the court should not make an order which keeps the claim "live. " 

The court may be anxious that making an order to strike the claim denies the claimant any remedy. In fact it rarely does. As @Coupon-mad notes, there is the option for the claimant to start again if it wishes, so long as limitation has not expired. 

I always like to ask for my costs after an interim hearing, better that than rolling them over. If the court strike out the claim, then there is no rolling over.

Keep the points simple and take the judge to the rules. 

Le_Kirk

Well done so far @djhodgko; I see you now have @KeithP, @Coupon-mad and @Johnersh on board and with @1505grandad doing your integrity checking you couldn't ask for a better team.

djhodgko

Hi all,

Thankyou ever so much for your amazing feedback and help over the weekend, it is really great to revive such support. I had the weekend away from the laptop, mainly due to a few too man beers Saturday to take my mind of all this so to come back to this really has lifted my spirits! 

I have updated the Witness statement and draft order and listed below, do these looks on now to send off once dates etc filled in? 

In regards to point 3 of the N244 form am I to go with this wording?  

"This is a mandatory set aside situation pursuant to CPR 13.2 but the Defendant has also acted promptly and has good prospects of defending any claim from this Claimant who, the Defendant has ascertained, is a serial litigator of badly prepared parking cases with little evidence.Therefore, CPR 13.3 also applies, to further support the application to set aside the CCJ."

WITNESS STATEMENT

I am XXXX and I am the defendant in this matter. This is my supporting statement to my application dated  November 2021 requesting to:

a. Set aside the default judgment dated XX March 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 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 Judgement against me as the Defendant on 23rd March 2021. I am aware that the Claimant is XXXX, and that the assumed claim is in respect of unpaid Parking Charge Notices from the XX March 2020 at Car Park the Whitworth Centre Car Park, Darley Dale. 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 23rd November 2021 following a routine Experian credit check before looking to apply for a credit card.

1.4 The address on the claim is XXXX. I moved to my current address at XXXX on the December 2018. In support of this I can provide a scanned copies of utility bills dated before Charge Notice on March 2020; Schedule (A,B,C)

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 23rd November 2021.

1.5.2 On 23rd November I contacted the County Court Business Centre via phone to obtain relevant information relating to this default judgment.

1.5.3 On November 2021 I have wilfully 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 29pence bulk Experian trace or similar very inexpensive and immediate CRA address check, 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 12 months to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgment.

 

1.8 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.  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).

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 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.

DRAFT ORDER

Upon reading the defendant’s application dated 29/11/2021

It is ordered that:

1. The judgment dated 23/03/2021 be set aside.

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

3. Unless the Claimant serves a copy of the Claim Form on the Defendant by 4pm on dd/mm/yyyy the claim will be struck out without further order.

4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm on dd/mm/yyyy.

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

6. Should the court reserve costs in the case as an alternative to paragraph 2, such costs of this application will become payable if the claimant discontinues it's claim.

7. There are several authorities for this, including the judgment in Boxwood Leisure Ltd v Gleeson Construction Services Ltd & Anor [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…”

Le_Kirk

Not sure you need point 7 in your draft order; it is after all, a six-point draft order.