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

Le_Kirk

@Coupon-mad (very experienced poster and parking guru) and @Johnersh (lawyerly type) gave responses to this believe.  

djhodgko

Hi Le_Kirk,

Yes I saw they did but it has somewhat confused me on what I now should be stating on the N244 point 3 and the witness statement and draft order. 

I am looking to still set aside or has it now changed that I go in with looking to just state the claim is dead? Or do I look to state both points? 

For you guys that have plenty of experience in this kind of thing it might seem simple and obvious what is wrong but to me with no background in anyone of this kind of thing it is somewhat minefield and I am confused on what I need to do and what to submit and not. 

Any advice on what needs removing or adding to my witness statement and draft order would be truly amazing and I would be very grateful indeed. It would also mean I am not forever posting and asking more and more questions/advice. 

This is currently how I have it laid out - 

WITNESS STATEMENT

I am NAME, and I am the defendant in this matter. This is my supporting statement to my application dated 30th November 2021 requesting to:

a. Set aside the default judgment dated ** 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 ** March 2021. I am aware that the Claimant is Civil Enforcement Ltd, and that the assumed claim is in respect of unpaid Parking Charge Notices from the ** March 2020 at the Whitworth Centre Car Park, Darley Dale, Derbyshire. 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 ADDRESS. I moved out of this property April 2018. I then moved into my partner house, which is my current address at ADDRESS in May 2019. In support of this I can provide a scanned copies of bills/credit accounts in my name dated before Charge Notice issued on** March 2020; Schedule A, B, C 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 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 30th November 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, 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 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.

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…”

1.9 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: _______________________

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. 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.

4. 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).

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

6. that this claim was defectively served and having noted that the proceedings were issued more than 4 months ago, is hereby struck out.

Signed: ________________________________

Le_Kirk

You are still applying for a set-aside.

Coupon-mad

This bit in the WS:

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…”

...makes no sense because what you are providing authority for, has not been mentioned above it (the claim being dead).  That part above needs to be preceded by this part, adding paragraph numbers to suit::

 - 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).

And those sentences need re-writing in 'court Order stylee' (a bit of legalese) for the Draft Order.  Look at the one above it, you are wanting the the Judge to order that 'the Claimant do pay', etc.  So the point you are adding to the Draft Order should be in that style 'The Claim be struck out for want of service within 4 months' or summat like that.

Upon should be in capitals at the start of the Draft Order, it's just the way it they are written!

Johnersh

The application for for set aside follows a pattern something like this... Do read the Civil Procedure Rules for Service of Proceedings and Default Judgment. Lots of links from Gordon Exall kicking about (Civil Litigation Blog) he has a handy knack of explaining.

As I understand it, D argues

1. The claim form was served (sent) to an incorrect address AND (I) C 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 D was "there to be found" on a simple directory enquiry check. 

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

3. C was not entitled to default judgment having failed to comply with basic enquiries to obtain a service address and having failed to serve on C's usual residential address.

4. If set aside, the claim having never been served, is dead. C has the option to issue afresh, the merits of the claim not having been ruled upon - if they wish to avail themselves of that. 

djhodgko

Hi all,

Thank you for your help this afternoon/evening. It really is warming to know people who I don't know at all and vice versa are giving up their free to to look into and help 

I have made changes as suggested above and have the following to submit as it stands.

Do all 3 parts below now look ok to submit or do I still need to make amendments to these? 


Point 3 of the N244 form to read as follows 

"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 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 ** 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 Judgment against me as the Defendant on ** March 2021. I am aware that the Claimant is Civil Enforcement Ltd, and that the assumed claim is in respect of unpaid Parking Charge Notices from the 12th March 2020 at the Whitworth Centre Car Park, Darley Dale, Derbyshire. 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 ADDRESS. I moved out of this property April 2018. I then moved into my partner house, which is my current address at ADDRESS in June 2019. In support of this I can provide a scanned copies of bills/credit accounts in my name dated before Charge Notice issued on ** March 2020; Schedule A, B, C 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 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 ** 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, 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 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.

1.9 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.

 2.0 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).

2.1 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: ________________________________

DRAFT ORDER


UPON reading the defendant’s application dated **/12/2021

It is ordered that:

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

2. 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 (I) 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. 

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. 

 

Signed: ________________________________

Coupon-mad

This  (the word 'dead') isn't right for an Order from a Judge and also, if he/she is setting it aside and using your draft Order, then you don't want a sentence that starts 'if set aside' because it will be!

6. If set aside, the claim having never been served, is dead.

Also this isn't needed:

- if they wish to avail themselves of that. 

I think the Order should talk about the court finds that this claim, having not been served within 4 months, stands dismissed.

djhodgko

Hi Coupon-Mad,

Thanks for the input and taken this into account. 

Does the draft read better after the changes? 

What about Witness statement, does that look OK ro does it need tweaking? 

For my N244 form do I need to change that to dismissed rather than set aside? Or do I need t change this totally? 

"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."

UPON reading the defendant’s application dated **/12/2021

It is ordered that:

1. The judgment ********** dated 23/03/2021 having not been served within 4 months, stands dismissed.

2. 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 (I) 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. 

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. 

Coupon-mad

The judgment be set aside.  That should be no 1 in your draft Order and you've dropped it!  The whole point of your application is to set aside judgment.

The claim be dismissed or struck out for want of service within 4 months of issue, is a separate point in the Order.

djhodgko

Ok I am getting myself muddled hear aren't I! 

Does that look better? 

UPON reading the defendant’s application dated **/12/2021

It is ordered that:

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

2. 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. 

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