PCN CCJ from VCS Ltd Help

ParkingMachine

Hi, I made use of these forums in December when I was preparing my N244 and supporting documents, but really need some more guidance because I've just had my application to Set Aside the default judgment dismissed today.

I honestly believed I had a good chance of satisfying the core requirements of setting aside the CCJ so feel quite hard done by, both with respect to faulty services and having a solid defence.

VCS's correspondence was sent to an old address and therefore I got a judgment in default against my name. The alleged contravention was in February 2020, and my address with DVLA on the V5 was changed in the same month. VCS started proceedings against me in August 2020, and obtained a judgment in default in September 2020.The judge ruled that because post to my old address wasn't returned to sender, then VCS did enough to make sure my address is current, despite me putting forward the argument that I was "there to be found" on the electoral register and with credit reference agencies.

RE my defence - The alleged contravention occured in my work car park, where I had a parking permit which wasn't in completely clear view (a stipulation of car park Ts&Cs apparently) and in addition my vehicle reg was on a "whitelist" of permitted VRNs. However, it appears the landowner did not pass this on to VCS or VCS didn't cross-reference it. However, the judge wasn't taken by my whitelist argument and decided that my parking permit wasn't in clear view and therefore Ts&Cs of the car park had been breached. Therefore, he ruled I didn't have a strong enough defence.

The judge allowed me to appeal and I reiterated my main points above, but he wasn't swayed.

I was informed I can appeal the dismissal and have 21 days to do so. However, it seems like I would need to hire legal representation from what I've read and that this is at a higher court?

Any comments or advice would be welcomed!

Coupon-mad

It would be to a Circuit Judge and they are usually appallingly bad in our experience, at understanding parking law.

You'd have to show that the first Judge 'erred in law' because CPR 13.2 applied for a 'mandatory' set aside and the Judge didn't have discretion on that rule.  You could argue that he erred by applying discretion to a mandatory rule and the fact that post was purportedly not returned to VCS marked 'gone away' was neither proved by the parking firm nor within your control and it also wasn't relevant to CPR 13.2 and the rules for good service.

If a claim was not properly served and no attempts were made before the claim to check the address then you *should* have found that the Judge agreed to set aside the CCJ.

You don't need legal representation, you can appeal yourself.  I guess you have nothing to lose by trying seeing as this Judge has refused and that leaves you between a rock and a hard place.

Did you point out that the IPC Code of Practice requires a PPC to check the address if a potential defendant before filing a claim, if 12 months has passed since the parking event?  That would have been powerful as an argument.

Using a DVLA address is never enough and parking firms know this from their codes of practice.  DVLA registered keeper addresses are very unreliable and the conduct of parking firms who do this, is precisely why the Government and HMCS undertook a CCJ review and named parking firms as the main culprits.

The new Code of Practice and statutory regulation coming in this year is fuelled partly by the desire of Government to put a stop to CCJs like this, served to wrong addresses.

ParkingMachine

Ok, thanks for that Info in the first two paragraphs - I'll try and make the arguments you reference and do further reading. Do you know if there's any relevent threads on here or another site which I might be able to read up on? I've tried to search the forum but hadn't found anything portraying similar circumstances.

Yeah that's the impression I got regarding the service of the claim from reading this and various forums, so was really disappointed on the dismissal of my set aside.


Ok, thanks for that I was under the impression I'd by in way over my head from doing some googling.

I didn't know that was the case RE IPC Code of Practice and the new Code so will work that in my appeal.

I don't suppose there's an appeal template on the forum is there?

TIA

Coupon-mad

No appeal template.

You say the Judge gave permission to appeal, so if you want to do that you must act quickly ((within deadline) and you must show that the Judge 'erred in law'.

I am not legally qualified and this is just my advice as I see it (and you may still not succeed) but I think you should target the error in law in failing to grant a mandatory set aside under 13.2 which doesn't give a court power to use discretion by putting any weight on VCS' bare assertion that 'no letters were returned by a third party' (so what, and is it even true?  No evidence!).

Not something under your control...and if it were that simple for parking firms to avoid CCJ set asides - when they've blatantly breached their own Code of Practice by using old and unreliable DVLA addresses without doing a 29pence Experian 'soft trace' first - they could all claim this, and no Defendant would ever be in any position to prove otherwise!

Your argument should reiterate that set aside was mandatory, as CPR 13.2 says the court 'must' set aside a CCJ that was not properly served (you will need to do some reading about the rules for good service, look for some legal authorities that support your position).  It can't be right to assume that service to an old address from which they were getting no replies can be presumed good service.

@Johnersh, a solicitor poster here, always points out that Civil Litigation Brief is a very useful website resource so you could start by Googling that phrase and 'claim service' or 'service address'.  Find some persuasive or binding case law that backs your side.

We've only ever seen one other refused at a hearing, years ago (and one refused more recently but that poster was trying to apply 'with consent' so that was different).  So we are shocked by what your Judge decided but can't promise an appeal will work.

However, if you feel you have no option then as I see it, you have nothing to lose because even if knocked back you are in no worse position than now. 

Copy in VCS to everything, to ensure they don't unpick your appeal by saying they were not served anything about it.

Coupon-mad

Some of this may help:

https://forums.moneysavingexpert.com/discussion/comment/78923044/#Comment_78923044

ParkingMachine

Thanks for these pointers, very helpful. I also checked the forum and found a thread in which you advised someone a few years ago in an appeal.


I've made a good start on rifling through the Civil Litigation Brief website and I'm starting to see how things fit together and how I think I can reference cases.

I guess the foundation of achieving a set aside under 13.2 is such that service wasn't regular/good because cpr 6.9(3) wasn't adhered to? - on the CLB website there seems to be precedent where Claimant hasn't made a reasonable effort to establish a current address and the case has been dismissed. Your most recent link also seems to reference as such RE BPA & DVLA expecting CRA checks.

VCS evidently made no attempt to trace my current address. In my case, many months elapsed between LBA and issue of the claim form. 

Coupon-mad

Yep you are on the right track to give this a go, except VCS are not BPA.  Only look at the IPC Code of Practice.

ParkingMachine

Thanks for that.

Letter came through the post today and the farce continues.

 Judge verbally agreed to an appeal and encouraged me to get my application in quickly - within the 21 day window. Letter says permission to appeal is refused. Any thoughts apart from ringing the Court tomorrow?

Coupon-mad

Yes ring the court.  If the Judge sticks to their guns and won't correct that error quickly, you can apply above their head to a Circuit Judge.

Coupon-mad

Just had a thought that you could add a second 'error in law':


Second error in law

The learned Judge, both when considering whether CPR13 (2 or 3) applied and when going on to decide that the Defendant had 'no prospects' of successfully defending the claim, erred in law by failing to consider the mandatory 'test of fairness' which courts must apply to cases involving consumer contracts.

s71 of the Consumer Rights Act 2015, mandates that the duty applies whether a party mentions it or not.  This duty was not applied by the court.

Unfair terms and/or unfair 'consumer notices' - including communications not brought to the attention of the consumer transparently and prominently - are not binding on the consumer. 

'Consumer notices' was a new addition in the 2015 Act and includes signs and every communication or notice that 'relates to rights or obligations as between a trader and a consumer,' In this case, all the wrongly addressed letters.

"s62 (6) A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer.

(7) Whether a notice is fair is to be determined—

(a) taking into account the nature of the subject matter of the notice, and

(b) by reference to all the circumstances existing when the rights or obligations to which it relates arose and to the terms of any contract on which it depends."

Given that:
(a) the communications over a period of many months were shown to the learned Judge to have been improperly served to a wrong address;

and

(b) no attempt had been made by the Claimant to re-check the address of the Defendant, which in bulk cases such as this serial litigator, would have cost from 29 pence (Experian soft trace);

and

(c) this IPC member Claimant was represented at the hearing and knew that their IPC Code of Practice requires an address to be re-checked before a claim is served, because an old DVLA address is not reliable for service.  Instead their representative relied upon an irrelevant, bare assertion that (according to them) no third party at the wrong address had returned the notices;

there appears to be a valid argument that (even if the learned Judge thought the signs were clear) the other mandatory 'consumer notices' - the letters, Notice to Keeper, Letter before Claim and N1 claim form - were not capable of meeting the CRA 2015 tests of 'transparency and prominence' and were thus, unfair consumer notices.  In fact, those vital communications were never drawn to the attention of the Defendant because the Claimant breached their own industry's Code of Practice.

Finally, the learned Judge gave verbal permission to appeal but then issued an Order refusing permission to appeal, an unfortunate error that has made this application more difficult than it should have been.

So, in the interests of justice, the Defendant asks for permission to appeal the Order dated xx/xx/xx by District Judge xxxxxx and asks for that decision (to dismiss the CCJ set aside application and allow the claim) to be reversed in its entirety and a re-hearing of the CCJ set aside application be listed due to any one or all of the errors in law this Defendant has identified.