*BOMBSHELL* CCJ - Please Help!!!

nfpad

@Coupon-mad just to be clear, when talking about "the claim form" are we talking about the date of original PCN or the date of court papers being served?

Johnersh

The claim form is the aptly titled document that starts a court claim. The regular forumites are a disciplines bunch and will only refer to the "ticket" as a PCN.

The point here is that the entire claim is insidious. From start to finish an entire process took place over a number of years and over which the o/p had no notice. 

The lack of *any* response plus delay in commencing proceedings creates an obvious doubt that there was an incorrect address.

It is impressed upon lawyers since their earliest days of law school the importance of checking before commencing a claim. There are lots of threads on this covering

*issue to an incorrect address
* expiry of the claim if not correctly served 

Redx

nfpad said:

@Coupon-mad thanks very much for the reply. Getting myself in a bit of a state here.

I understand the laws and the process for the most part, only bit I'm not getting right now is the "4 month" rule, I can't seem to find any of the legal points in relation to it?

I will type up a better WS and DO tonight.

Read all of the posts by Johnersh that relate to these matters and you will find his opinion on that 4 month topic , it's probably in anoth CCJ discussion

nfpad

OK, deep breath this morning and I have put together this witness statement and draft order to go alongside my N244 application. Please see below and feel free to add comment.

WITNESS STATEMENT

I am xxx, and I am the Defendant in this matter. This is my supporting statement to my application dated xx December 2021 requesting to:

a. Set aside the default judgment dated 08th November 2018 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 £275 as reimbursement for the N244 application 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 08th November 2018. I am aware that the Claimant is Civil Enforcement Ltd, and that the assumed claim is in respect of an unpaid Parking Charge Notice from the 04th February 2018 at xxx, xxx.

1.3. The claim form was not served at my current address, and I thus was not aware of the default judgment until 11th December 2021 following a letter received from a Direct Collection Bailiffs Ltd (DCBL).

1.4 The address on the claim is xxx. Following myself and my partners agreed purchase of the property at xxx on 17th January 2018 (Schedule A), I vacated the property at xxx on 3rd February 2018 (Schedule . I immediately moved into my partner’s parents house at xxx due to the commencement of major building work at xxx rendering the property uninhabitable. The tenancy for xxx then ran until the end of February 2018, we notified xxx xxx Council, and we received an updated tax bill from them dated 21st February 2018 (Schedule 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 11th December 2021 following a received letter from DCBL.

1.5.2 On 11th December 2021 I paid for a Trust Online search of the CCJ no: xxx, which did indeed confirm that a default CCJ had been issued on 8th November 2018.

1.5.3 On Monday 13th December 2021 I contacted the County Court Business Centre via phone to obtain relevant information relating to this default judgment.

1.5.4 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 was 'there to be found' via a simple credit report enquiry (Schedule D), as has subsequently been proven some 37 months later by their instructed agent DCBL. But despite having an in-house legal team headed by a barrister, this Claimant took no steps whatsoever to check the address in the 8 months that passed between the original alleged infraction and the submission of the claim to the court.

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 having received no response from the Defendant in the following 8 month period. 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.

1.8.1Furthermore, 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.

1.9.1 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…”

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 £275 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.

DRAFT ORDER

UPON reading the Defendant’s application dated xx/12/2021
It is ordered that:

1. The judgment no: xxx dated 08/11/2018 be set aside, pursuant to CPR 13.2.

2. The claim struck out as the claim form having not been served within 4 months of issue.

3. The Claimant do pay the Defendants costs of this application totalling £275 on an indemnity basis.

4. The claim form was served 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 the Defendant was "there to be found" via a simple credit report enquiry. The absence of any response to mandatory pre-action correspondence created at least the likelihood that the 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 the Defendants current residential address.

6. Claimant has the option to issue afresh within 14 days of this judgement.

Coupon-mad

You do not need para 4, 5 or 6 in that Draft Order.  The thread where you found that has surely moved on and the person will have surely been advised already to remove that unnecessary stuff.

Read entire threads, don't stop when you see their first draft.  Cases get advice, read it as if it was your case.

Your WS so far is good at telling the story of how the C failed to serve the claim properly but is absolutely missing the citations and quotes of CPR13.2 and 13.3 that you are pinning your application on.

You need to lead the Judge to the right parts of the CPRs to be pretty certain of a win.  Read a few more CCJ threads to see how to write that part.

Le_Kirk

Simple numbering is preferred.  At 1.4 you have used and that turns into a smiley face (there you are I said it would) when on the forum and disrupts the numbering sequence.  Use B ) where there is a space between "B" and ")".  When you submit the document you can remove the space.