PCN CCJ from VCS Ltd Help

ParkingMachine

That's brilliant, thank you very much.

I had the weekend off, but will begin cracking on with it ASAP - hopefully I'll have a decent first draft to post to the forum by the end of the week. 

I did ring the court, and they said the "permission to appeal denied" order was more of a formality to save face for the judge if that makes sense, i.e. not admitting that he may have made an error.

ParkingMachine

I would like to appeal the order because the learned Judge “erred in law” in my application for a set aside under CPR 13.2 - a “mandatory” set aside; the learned Judge did not have powers of discretion in relation to CPR 13.2 and erred by applying discretion to a mandated rule.

The Court has no power of discretion under CPR 13.2 and the learned Judge erred by utilising discretion when basing his decision on the Claimant’s assertion that “no letters were returned by a third party”.

The above assertion was not proved by the Claimant, nor was it within the Defendant’s control in any event and constitutes a failure to adhere to CPR 6.9(3). 

CPR 6.9(3) outlines a hierarchy of measures set out before service at the last known address is possible.

“ CPR 6.9(3)

(3) Where a Claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the Claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).

(4) Where, having taken the reasonable steps required by paragraph (3), the Claimant –

(a) ascertains the defendant’s current address, the claim form must be served at that address; or

(b) is unable to ascertain the defendant’s current address, the Claimant must consider whether there is –

(i) an alternative place where; or

(ii) an alternative method by which,

service may be effected.

(5) If, under paragraph (4)(b), there is such a place where or a method by which service may be effected, the Claimant must make an application under rule 6.15.

(6) Where paragraph (3) applies, the Claimant may serve on the defendant’s usual or last known address in accordance with the table in paragraph (2) where the Claimant –

(a) cannot ascertain the defendant’s current residence or place of business; and

(b) cannot ascertain an alternative place or an alternative method under paragraph (4)(b).”

It is evident these measures were not adhered to because the defendant was “there to be found” on the databases of credit reference agencies for the sake of a 29p bulk check. The Defendant had the new address changed with both Lloyds and Monzo bank in September 2019. This was four months before the Claimant served the NTK on an old address.

The Claimant continued to send correspondence and then the claim form to the old address over a period of almost seven months. Four documents were sent to the old address commencing 07/02/20 with the last one; a letter before action dated 24/04/20. Then the Claim form was served on the old address on 26/08/20.

In any event had the Defendant been residing at the old address he would have been incentivised to quickly respond to any communications from the Claimant. This is because the Defendant had a permit in his vehicle, and had his VRN on a whitelist of vehicles which were to be exempted from any parking enforcement action. Or if any erroneous enforcement action was taken, the PCNs issued were to be rescinded. This whitelist was passed onto the landowner in July 2019.

The behaviour of the Claimant is not in the spirit of the Claimant’s DVLA Accredited Trade Association International Parking Community Code of Practice in which a credit reference agency check is not only allowed, but expected before Court action.

Point 22.1 of the International Parking Community Code of Practice declares “Operators must take reasonable steps to ensure the Motorist’s details are still correct if 12 months have passed from the Parking Event before issuing court proceedings”

In addition, the DVLA recommends that a credit reference agency check is indeed allowed and expected to be carried out before Court action. DVLA data is unreliable and this is evidenced by the fact that in up to a third of cases addresses are expected to be wrong or changes enacted with a delay(cite a reference).

The following case examples illustrate when the Claimant has been held to account on service of the claim form.

A recent case, Wards Solictors v Hendawi [2018] EWHC 1907 (Ch)  saw HHJ consider the issue of whether a Claimant had “reason to believe” that a defendant did not live at the address for service. The case considers a previous version of the rules, but the judge also made observations about whether the Claimant had “reason to believe” the defendant was not at the address.

At the date the then CPR rule 6.5(4), (6) permitted service on an individual being sued as such by post at his “usual or last known residence”. The current sub rule (r 6.9(2)) is made subject to sub-rules (3)-(6) of rule 6.9. Sub rule (3) provides, that where a Claimant has reason to believe that the last known residence is an address at which the defendant no long resides, he must take reasonable steps to ascertain the Defendent’s current residence.

In Marshall & Rankin v Maggs [2006] EWCA Civ 20 the Court of Appeal held that when considering an address at which the individual to be served did actually live at some time, the court is not concerned with “belief” but with knowledge. Knowledge in this context referred to the serving party’s actual knowledge or what might be called his constructive knowledge, ie knowledge which he could have acquired exercising reasonable due diligence.

Lord Justice Waller, Lord Justice Dyson & Lord Justice Neuberger concluded: 

“ It is true that a defendant who has not in fact received the claim form should have no difficulty in setting aside a default judgment. But it is not desirable that defendants should be put to the trouble and expense of making applications to set aside default judgments.”

In Sajid v Nuur(Central London County court 30/7/18) a former landlord issued separate proceedings against a former tenant claiming areas of rent. Proceeding were served at the property that the tenant rented from the landlord, by which time the then landlord knew the tenant had left the property. 

The District Judge had found that the claim form had been properly served. The Circuit Judge held it had not. CPR 6.9(4) applied and the Claimant landlord could have made an application to serve at an alternative address or by an alternative method.

The landlord had reason to believe(knew in this case) that the tenant no longer resided at her last-known address. The landlord had taken reasonable steps and was unable to ascertain the address of the tenant’s current residence.

ParkingMachine

So the above is the first draft so to speak, and then I'll put the argument you kindly made for me either before or after dependiing on how you think it reads best.

Feel free to tear it apart, it's definately a bit clunky and maybe goes around the houses a bit in places.

Also, i'm not sure if I've brought the case examples into the argument in the best way possible tbh.

Also there is a bit on my case specifics RE having a permit/being on a whitelist which I'm aware strictly might not belong on this appeal, but figured a couple of paragraphs wouldn't hurt. Again, if not appropriate then I'll get rid.

At a push I can probably find a couple of furthe case examples.

TIA, please let me send you some money for a few cases of beer or wine!

Coupon-mad

I did ring the court, and they said the "permission to appeal denied" order was more of a formality to save face for the judge if that makes sense, i.e. not admitting that he may have made an error.

Wrong.  He made an error.  If he verbally gave permission to appeal the Order should have reflected that.

on the Claimant’s assertion

BARE ASSERTION.  It means they just said it.  No evidence, nothing. 

And actions (or not) of a stranger to the matter are completely irrelevant to CPR 13.

The behaviour of the Claimant is not in the spirit of the Claimant’s DVLA Accredited Trade Association International Parking Community Code of Practice 

Is in breach of.

I don't think your draft gives grounds to appeal.

It is too long and just tries to re-argue the set aside.  You are meant to be stating that the learned Judge erred in law, with headings ' Ground 1', Ground 2' etc.

The wording I gave you was worded for you to use pretty much verbatim. Can't promise it will work but you need to concisely state grounds for appeal not try to get a second bite at the cherry like it's your CCJ set aside witness statement all over again.

ParkingMachine

Ok, got you on those points. I've gone with how you say to do so for grounds of appeal, and I'm now writing a skeleton argument as it suggests in the guidance for the form/appeal.

As you say I was reciting my n244 case/WS so those will be dropped, and the onus will be on not adhering to CPR 6.9(3) with supporting case law.

Thanks again

Coupon-mad

You might wanna wait a bit and run it by us this week - what's your appeal deadline?

ParkingMachine

Sure, I'm not far away with msot of it being done hopefully. Deadline is 14th Feb.

Cheers

ParkingMachine

From the new Private Parking Code of Practice

10. Action to recover unpaid parking charges

If a driver, keeper or hire company does not respond to a notice of parking charge or subsequent correspondence, or a parking charge has not been paid in full, reasonable endeavours - including contacting credit reference agencies to undertake a ‘soft trace’ - must be undertaken by the parking operator and/or its appointed debt recovery agent to establish the correct correspondence details of the driver, keeper or hire company before commencing enforcement action. Where a new address is discovered the notice of parking charge should be re-issued at the original rate but with a further 28 days from service for a response (payment or appeal).

Debt recovery agencies that are involved in the collection of debt related to private parking charges must be full members of an accredited parking association.

^ looks like a shoe-in for the skeleton argument as well, and now carries more weight than the IPCC code of practice

ParkingMachine

Ok so, Grounds of Appeal both 1 & 2 that you identified - it looks long but its double spaced

Firstly, the learned Judge made an error in which DJ XX verbally gave permission to appeal but the order from my N244 hearing did not reflect this.

Ground 1

The learned Judge erred in law because CPR 13.2 applied for a ‘mandatory’ set aside and the learned Judge had no powers to exercise discretion with this rule. The learned Judge placed weight on the bare assertion from the Claimant that post was purportedly not returned to the Claimant marked “return to sender” - an assertion that was not proved by the Claimant nor within the Defendant’s control. 

The court is granted no power to put weight on the Claimant’s bare assertion that “no letters were returned by a third party” and must set aside the default judgment. This is because the claim form was not served as per CPR 6.9(3) and the learned Judge failed to realise this.

CPR6.9(3) and (4) respectively dictate that reasonable steps be taken to ascertain a “current address” and if the Claimant cannot do so, he must consider if there is an alternative place of service.

“THE RULES: CPR 6.9(3) – (6).

“(3) Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).
(4) Where, having taken the reasonable steps required by paragraph (3), the claimant –

(a) ascertains the defendant’s current address, the claim form must be served at that address; or

(b) is unable to ascertain the defendant’s current address, the claimant must consider whether there is –

(i) an alternative place where; or

(ii) an alternative method by which,

service may be effected.

The Defendant in his skeleton argument details case precedent in which the Claimant was held to good service by the sitting judge.

Ground 2

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 24/01/22 by District Judge XX 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.

ParkingMachine

Skeleton Argument

Issues

Err in Law I: DJ XX erred in law by applying discretion in the case of a “mandatory” set aside in accordance with CPR 13.2.

Err in Law II: DJ XX erred in law with respect to CPR 13(2 or 3) by failing to consider the mandatory test of fairness which the Court must apply to cases involving consumer contracts.

Court Order Error: DJ XX made a mistake in his General Form of Judgment or Order when he refused permission to appeal, despite verbally granting permission to appeal in the hearing.

Case summary: The Appellant received a Judgment in Default for a parking charge from the Claimant in February 2020 in September 2020. The Defendant applied for a N244 set aside. This was dismissed by DJ XX at the hearing on January 24 2022.

The Appellant(“Defendant”) relies on case law in reference to both CPR 13.2 and 13.3 which rely on CPR 6.9 for conditions of good service of the claim form. In particular CPR 6.9(3) outlines a hierarchy of measures set out before service at the last known address is possible. To understand this a chronology of events is useful to explain the degree to which the Claimant attempted to fulfil the measures of CPR 6.9(3). The Claimant sent all correspondence over an almost seven month period to an old address. An address which was ascertained by accessing the DVLA database - the only source of information used despite recommendations  to the contrary from the DVLA and the Claimant’s own trade body. Four documents were sent to the old address commencing 07/02/20; with the last one a letter before action dated 24/04/20. The Claimant then proceeded to serve a claim form dated 26/08/20 on the old address. In the N244 set aside hearing DJ XX erred by utilising discretion under CPR 13.2 when basing his decision on the Claimant’s bare assertion that “no letters were returned by a third party”. This was not proved by the Claimant, nor was it within the Defendant’s control in any event, and constitutes a failure to adhere to CPR 13.2. This is because both CPR 13.2 and CPR 13.3 rely on the definition of good service in CPR 6.9(3). Essentially, the Claimant must take reasonable steps to ascertain the address of the Defendant’s current residence or place of business. If the Claimant is unable to do so, the Claimant must consider whether there is either an alternative place or method by which service can be effected.

A recent case, Wards Solictors v Hendawi [2018] EWHC 1907 (Ch)  saw HHJ consider the issue of whether a Claimant had “reason to believe” that a defendant did not live at the address for service. The case considers a previous version of the rules, but the judge also made observations about whether the Claimant had “reason to believe” the defendant was not at the address.

At the date the then CPR rule 6.5(4), (6) permitted service on an individual being sued as such by post at his “usual or last known residence”. The current sub rule (r 6.9(2)) is made subject to sub-rules (3)-(6) of rule 6.9. Sub rule (3) provides, that where a Claimant has reason to believe that the last known residence is an address at which the defendant no long resides, he must take reasonable steps to ascertain the Defendant’s current residence.

It can be argued with parallels to the case above that the Claimant would have had "reason to believe” that the Defendant’s address was not current as the Claimant did not receive any correspondence to perturb the eventual Court action undertaken.

In Marshall & Rankin v Maggs [2006] EWCA Civ 20 the Court of Appeal held that when considering an address at which the individual to be served did actually live at some time, the court is not concerned with “belief” but with knowledge. Knowledge in this context referred to the serving party’s actual knowledge or what might be called his constructive knowledge, ie knowledge which he could have acquired exercising reasonable due diligence.

Lord Justice Waller, Lord Justice Dyson & Lord Justice Neuberger concluded: 

“ It is true that a defendant who has not in fact received the claim form should have no difficulty in setting aside a default judgment. But it is not desirable that defendants should be put to the trouble and expense of making applications to set aside default judgments.”

The above case illustrates a precedent whereby, if the Claimant had been exercising reasonable due diligence, then the Claimant would have gained “constructive knowledge” and the Defendant would have been found. This is because the Defendant was “there to be found” on the databases of credit reference agencies for the sake of a 29p bulk check. In addition, the Claimant ignored the DVLA’s prescription that a credit check is both allowed and expected before any Court action. 

In fact, the new Private Parking Code of Practice established by the Government, following complaints about the conduct of private parking companies integrates the requirement for good service into this code of practice: 

“ If a driver, keeper or hire company does not respond to a notice of parking charge or subsequent correspondence, or a parking charge has not been paid in full, reasonable endeavours - including contacting credit reference agencies to undertake a ‘soft trace’ - must be undertaken by the parking operator and/or its appointed debt recovery agent to establish the correct correspondence details of the driver, keeper or hire company before commencing enforcement action. Where a new address is discovered the notice of parking charge should be re-issued at the original rate but with a further 28 days from service for a response (payment or appeal).”

Furthermore, the Claimant’s behaviour contravenes the DVLA Accredited Trade Association International Parking Community Code of Practice in which a credit reference agency check is not only allowed, but expected before Court action.

Point 22.1 of the International Parking Community Code of Practice declares “Operators must take reasonable steps to ensure the Motorist’s details are still correct if 12 months have passed from the Parking Event before issuing court proceedings”.

Therefore, it should be concluded that the Claimant’s “constructive knowledge”  both of the situation and guidance from the DVLA and IPCC Code of Practice would have led the Claimant to consider whether there was an alternative place where service could be effected.

In Sajid v Nuur(Central London County court 30/7/18) a former landlord issued separate proceedings against a former tenant claiming arreas of rent. Proceeding were served at the property that the tenant rented from the landlord, by which time the then landlord knew the tenant had left the property. 

The District Judge had found that the claim form had been properly served. The Circuit Judge held it had not. CPR 6.9(4) applied and the Claimant landlord could have made an application to serve at an alternative address or by an alternative method.

The landlord had reason to believe(knew in this case) that the tenant no longer resided at her last-known address. The landlord had taken reasonable steps and was unable to ascertain the address of the tenant’s current residence.

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,  also erred in law by failing to consider the mandatory 'test of fairness' which courts must apply to cases involving consumer contracts.

This excerpt illustrates another instance whereby a failure by the Claimant landlord to affect correct service was successfully appealed when the Claimant served a claim form to an address where they had knowledge the Defendant didn’t reside.

The excerpt  also illustrates our Err in Law II in which DJ XX failed to consider the mandatory “test of fairness” which Courts must apply to consumer contracts; a test which was considered under similar circumstances in Sajid v Nuur.

 - I'll try and build a bit more around Grounds 2 if you think its worth it?

And then add a concluding paragraph much liek you did at the end of grounds 2 - I guess it could be very simialr?

Any feedback greatly appreciated TIA