PCN CCJ from VCS Ltd Help

Coupon-mad

Needs paragraph numbers but looking good.

You should add in the bit in the new Code of practice that says something like 'it is important that motorists hear about parking charges as soon as possible...blah blah...by placing a Notice of Parking Charge on the windscreen as best practice (to comply with the CRA 2015 test of prominence of consumer notices').

Shows the Govt agree with your point that the PCN (was there ever one on your windscreen?) and all communications were 'unfair consumer notices' which the CRA 2015 states 'are not binding on the consumer'.

ParkingMachine

Ok, so N161 was filed on time and I submitted the skeleton this week so waiting to hear on an appeal date.

I'm aware Coupon made is no longer on the forum but I'll update this as to the outcome of the appeal & any further actions.

Coupon-mad

I am on the forum!

ParkingMachine

Ah excellent, thought you'd gone for good. Once I get a hearing date/decision etc I'll update this post.

ParkingMachine

Just an update on this - hearing/application for permission to appeal is set for 12 April with a Circuit Judge.

Will I be expected to present argument orally does anyone know or will it be a case of the Judge reviewing my submissions and basing decisions on that?

Coupon-mad

ParkingMachine said:

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.

The Judge will expect you to make oral submissions, so you need to be conversant with all of the above, including the cases you are relying on.

Also expect VCS to send a legally trained rep to rubbish everything you say. They will also try to get their costs and will call you unreasonable.

Be ready for that and rise above it, keeping the moral high ground of reasonableness at all times.  Think before you speak and know your stuff.

IANAL but I think It mainly boils down to 13.2 being a 'mandatory' set aside position.  

It was not contested that you were not (as a matter of fact) served with the claim so as Lord Neuberger et al said in one of your authorities, it should be easy to set aside and it is regrettable that you were put to that disproportionate cost when it would have cost the Claimant 29pence to comply with their Code of Practice and do a soft trace.

There was no discretion under CPR 13.2.  There is discretion under 13.3 but that was merely a fallback position and 13.2 was established by the facts, especially since not tracing you was in flagrant breach of the IPC Code and should never have been proposed as reasonable by the Claimant.

Did you include a link to the IPC CoP in your submission above, and all the actual transcripts?  The Judge will expect transcripts of all your case law you are relying on, so you could always add them now with a cover sheet called 'Authorities bundle'.

I've seen that done before.

ParkingMachine

That's great, thanks for your help & those pointers. Sorry, i've been busy with other things - the Court date was actually pushed back to the 25th April so I shall update in due course.

Yes I believe I did submit a link to the IPC CoP, but no transcripts. The hearing notice I received said I didn't need to post a bundle with transcripts etc but I'll explore this if I have time to submit one.

Coupon-mad

You need to just do it.  This is an appeal and your very last chance to turn it around.  Those authorities are vital.

The Judge might also be a circuit Judge and will not go looking for transcripts.  Spoon feed them NOW with an authorities bundle (cover sheet listing what each one is) and copy it to the Claimants today by email, plus a copy of the IPC CoP section about checking address/details before issuing claims.

ParkingMachine

ok, managed to submit this yesterday so hopefully it was in time Thanks for the guidance & i'll update on proceedings.