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CCJ Set Aside Guidance
Comments
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Is it right that in N244 Question number 3 "What order are you asking the court to make and why" is were the below Order Draft should go=========================IN THE COUNTY COURTCASE Reference Number : XXXXXXBETWEEN:CLAIMANT : <<CEL>>, <<CEL Address>>. TEL: 0870 919 5577. REF: PCN:YYYYYYYY-and-DEFENDANT : <<My Full Name>>, <<Current Address>>, <<Mob Number>>.DRAFT ORDERUPON reading the Defendant's application dated <<todays date>> and the annexed witness statement of the Defendant <<My Full Name>> dated <<Todays Date>>.IT IS ORDERED that:1. The DEFENDANT seeks an order setting aside the judgment dated <<Judgment Date>> pursuant to CPR 13.2. The DEFENDANT seeks the order to set aside because he was unaware of the proceedings as the CLAIMANT served proceedings at an address not used by the DEFENDANT since <<Month, Year>>.3. There are grounds that this entire PCN XXXXXX may not be valid as the DEFENDANT has paid for the said VIOLATION DATE: 21/08/2018 TIME IN: 12:02 TIME OUT: 15:11.4. That all enforcement be put on hold pending the outcome of the application.=========================
Just telling that Claim Form not server to the right address is not enough grounds to request to set aside the CCJ, we need more concrete reason and I am not sure what to mention, my point 3 above is suppose to articulate it but its not punchy enough and not sure its even a valid reason, any help is much appreciated as I am struggling what to write there.1 -
You need to read recent CCJ set aside threads as there are loads where people have shown their WS (a signed & dated statement saved as a PDF) and draft Order (a separate, single sheet word document).
Search the forum for 4 months dead CCJ and don't give up when the first few results are threads like this with me telling people what to search. Look at more results until you find an example WS using that argument.
PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
@Coupon-mad tried to read as much as I can from the search result for "4 months dead CCJ" and could not find a single post with PDF or word doc attachment so far.0
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Hi All,
Many thanks for all your support, the below is my final
1. Draft Order
2. Witness Statement
>>>>>>
1. Draft Order as below
=========DRAFT ORDER
COUNTY COURT
Claim No. <<Claim No>>
BETWEEN:
Civil Enforcement Limited (Claimant)
– and –
<<Full Name of Defendant>> (Defendant)
DRAFT ORDER :
Upon reading the defendant’s application dated xx/xx/20xx
It is ordered that:
1. The judgment dated xx/xx/20xx be set aside.
2. Costs assessed at £275 plus the Defendant's cost to attend the hearing and relevant litigation in person costs.
3. Pursuant to the Case Management powers of the Court under CPR 3.4(1) and the requirement for service of proceedings under CPR 7.5(1) the Claimant's claim is struck out for want of service within 4 months of issue.
4. All enforcement be put on hold pending the outcome of the application.
=========
2. I also include the Exhibit lists<<Case Number>> - Exhibit List
Sl#
Reference
Document
Reason
1
Exhibit E01
2nd lender credit check decline
Evidence to show when the Defendant came to know something was wrong on his credit history prompting him for further investigation with his credit report.
2
Exhibit E02
Credit report court information
Evidence to show how the Defendant came to know about a court default judgement against him.
3
Exhibit E03
V5C
Evidence to show Defendant V5C updated in 20xx with new address and For Exhibit E13 as proof of Defendants identity.
4
Exhibit E04
house purchase exchange of contract
Evidence to show Defendant has moved out of <<Old Address>> since 20xx.
5
Exhibit E05
Movers Bill
6
Exhibit E06
Application to vote by post to Electoral Commission
7
Exhibit E07
Credit Report Electoral roll
8
Exhibit E08
Council Tax Bill
9
Exhibit E09
Closing Water Bill
10
Exhibit E10
Final Gas/Electricity Bill
11
Exhibit E11
Bank statement1 Old Address
12
Exhibit E12
Bank statement2 New Address
13
Exhibit E13
SAR Request
Evidence to show Defendant has contacted the Claimant
14
Exhibit E14
CCBC mail with case details
Evidence when the Defendant came to know about who the Claimant was
15
Exhibit E15
Payment receipt for parking ticket
Evidence to show there is a profound prospect of defending this claim
16
Exhibit E16
Payment receipt for parking ticket extension with 20 min gap
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Continuation of previous post......
3. My Final Witness is as below using the above Exhibit list.
=========WITNESS STATEMENT
COUNTY COURT
Claim No. <<Case Number>>
BETWEEN:
Civil Enforcement Ltd (Claimant)
– and –
<<Full name of Defendant>> (Defendant)
_________________________________
WITNESS STATEMENT OF <<Full name of Defendant>>
_________________________________
WITNESS STATEMENT:
1) I am <<Full name of the defendant>>. I am a <<Job Role>> by profession and I am the DEFENDANT against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my own knowledge.
2) This is my supporting statement to my application dated xx/xx/xxxx requesting:
a) Mandatory set aside for the Default Judgement dated xx/xx/xxxx as it was defectively served using an old address, pursuant to CPR 13.2.
b) An order for the original claim to be dismissed as it was not served within 4 months of the issue, pursuant to CPR 7.5 and the Claimant having failed to apply for an extension, pursuant to CPR 7.6.
c) An order for the claimant to pay the defendant £275 as reimbursement for the set aside fee plus the cost to attend the hearing and relevant litigation in person costs.
3) I was the registered keeper of the vehicle at the time of the alleged offence.
4) I understand that the Claimant obtained a Default Judgement against me as the Defendant on xx/xx/xxxx. I am aware that the Claimant is Civil Enforcement Ltd and that the assumed claim of £xxx is in respect of unpaid Parking Charge Notice <<PCN Number>> at my OLD residence <<Address where the claim form was served>>.
5) Since the claim form was not served at the correct address, I thus was not aware of the Default Judgement until xx/xx/xxxx, following a notification of a credit check decline by 2 independent lenders during my re-mortgage application (see Exhibit E01, has 2nd lender decline decision) which made me to look at the Credit Report on xx/xx/xxxx which had a court judgement that I wasn’t aware of (see Exhibit E02, credit report court information).
6) I had moved out of that address in <<Month, Year>>, x months before the Default Judgement may have been sent. In support of this I have provide a scanned copy of V5C updated in 20xx (see Exhibit E03), house purchase exchange of contract (see Exhibit E04), movers bill (see Exhibit E05), Electoral Roll (see Exhibit E06 & E07), alongside copies of council tax (see Exhibit E08), utility bills (see Exhibit E09 & E10) and Bank Statements (see Exhibit E11 & E12).
7) I would submit that an address obtained on or around MMM 20xx is not reasonable knowledge after a significant time later (x months) when Default Judgement was obtained.
8) I may also state that all my records were updated promptly by the time of the claim and it would have been a matter of a phone call or an email or a letter in post or a simple search with any credit bureau agencies such as Experian etc or simple check on Electoral register to confirm the correct address.
9) I believe the Claimant has behaved unreasonably in pursuing a claim against me without confirming the Defendant’s correct contact details at the time of the claim. They had also failed to explore an ‘alternative place or method’ to inform/enquire the Defendant.
10) On that basis, I believe the Claimant has not adhered to rule CPR 6.9 (3) and CPR 6.9 (4) where they had failed to show due diligence by using an address that the Defendant no longer resided. The claimant did not take reasonable steps to ascertain the correct address of my residence despite having some x months to conduct it. This has resulted in the claim being incorrectly served to an old address and an irregular Judgement. This leads to no service; they were not entitled to Judgement and the Court must set aside the claim as per CPR 13.2.
11) To submit a set aside application, I have explored all available avenues (internet and County Court services) to gain further information in this matter.
12) I also contacted Civil Enforcement Ltd by phone 0870 919 5577 asking them how should I proceed to set aside the default judgement with consent but I was asked to mail to dataprotectionofficer@ce-service.co.uk to obtain SAR. Following their suggestion, I have mailed them for request of SAR on xx/xx/20xx (see Exhibit E13) with V5C (see Exhibit E03) to prove my identity.
13) I have been therefore forced to submit my set aside application without consent.
14) 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, I have put my utmost effort to obtain necessary information and have managed to submit the case application within a <<week(s)>> of discovering the Default Judgement.
a) Appeal made by the Claimant xx/xx/20xx.
b) Claim Form served on xx/xx/20xx to old address.
c) Case heard and default decision taken on xx/xx/20xx.
d) Re-mortgage with 1st lender declined on xx/xx/20xx
e) Re-mortgage with 2nd lender declined on xx/xx/20xx (see Exhibit E01)
f) Discovered a CCJ was lodged from my credit report on xx/xx/20xx (see Exhibit E02).
g) Contacted the CCBC helpline and received default judgement details on xx/xx/20xx (see Exhibit E14)
h) Contacted Civil Enforcement Ltd to ask about set aside with consent but was asked to contact the data officer for SAR and sent the mail as requested on xx/xx/20xx (see Exhibit E13).
i) Submitted the request to set aside (without consent) the default judgement and fairly present my case on xx/xx/20xx.
15) According to publicly available information, my circumstances are just one of many hundreds, if not thousands, of examples. The parking industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and their families, and the justice system across the country.
16) In support of the request for a mandatory set-aside I will rely upon Marshall & Rankine v Maggs [2006] EWCA Civ 20 (25 January 2006), specifically paras 68 – 70 per Dyson LJ, which are inclusive of the following key points:
a) 68. “... As a matter of the ordinary meaning of words, to say "I know X" entails the proposition that "X is true". We do not see how the phrase "last known residence" can be extended to an address at which the individual to be served has never resided.
b) 69. We accept that the rules should, if possible, be interpreted in a practical way which promotes certainty and minimises the risk of satellite litigation. This does not, however, warrant rewriting the rules so as to make them bear a meaning which they plainly do not have. Nor do we see how interpolating the words "or reasonably believed" in the phrase "the address known to be last residence of the individual" adds to certainty or reduces the risk of satellite litigation.
c) 70. It follows in our judgement that the judge was right to hold that service was not effected on the defendant's last known residence for the simple reason that he had never resided at 47 Hays Mews.”
17) I rely upon the following authorities to support that claim is defective as it was not served to a “last known address”:
a) HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)
b) HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012)
18) In support of the request that the claim be dismissed due to claim not being served within 4 months of issue and the claimant having failed to apply for an extension I rely again upon Marshall & Rankine v Maggs [2006] EWCA Civ 20 (25 January 2006), specifically paras 100-105 which are inclusive of the following key points:
a) 100. Service of the claim form is a crucial step in the proceedings. The rules are designed to ensure, so far as possible, that the claim form is brought to the attention of the defendant, and where he is represented, his legal representatives. Normally, this must be done within 4 months of the date of issue. CPR 7.6 permits an extension of time for service. If an application to extend time is made after the time for service has expired, the CPR 7.6(3) pre-conditions must be satisfied.
b) 101. […] If a claimant purports to serve on an address which he mistakenly believes is the last known residence of the defendant, it is therefore necessary to consider the reasonableness of his belief that the address is indeed the defendant's last known residence.
c) 102. […] In many cases, the claimant will know the address for certain. Where the position is less clear, a direct request of the defendant, or his legal representatives (if they do not have instructions to accept service) may yield an answer. Other enquiries may have to be made.
d) 103. But the present case shows how dangerous it can be to make assumptions. In our judgement, the first claimant did not have a reasonable basis for concluding that 47 Hays Mews was the defendant's last known residence. He did not know that it was his last known residence. He assumed that it was. He had no real basis for believing that it was the defendant's residence.
e) 104. […] As the judge pointed out at para 77 of his judgement, there were other steps that the claimants could have taken if time had permitted: see para 89 above. Since the defendant was the director of a number of companies, another possible step would have been to carry out an on-line search of the Companies House directors' database.
f) 105. Exercising the discretion given by CPR 7.6(2) afresh, we conclude that this is not a case in which it would be right to extend time for service of the claim form. It follows that the claimant's appeal must be dismissed.
19) I have also read the consultation on Default County Court Judgements by Ministry of Justice published 21 February 2018 and it makes an insightful read. Some excerpts are: ‘the claimant must consider whether there is an alternative place or method by which the claim may be served’. And, ‘Department for Communities and Local Government (DCLG) is reforming parking practices and has already taken steps to tackle rogue private parking operators, including banning wheel clamping and towing. DCLG is fully aware of the concerns related to County Court Judgements that follow parking charges and is considering how they can deliver standardised practice across all parking companies, eliminating unfair charges and reducing the instances of claims where the consumer may be unaware of a parking charge being applied’. ‘Where the claimant is unable to ascertain the defendant’s current postal address, the claimant may apply to the Court for service at an alternative place. This may include service via an email address if the claimant and defendant have been in communication via those means and the Court agrees this is appropriate’.
20) I believe the Claimant’s practice is a clear example that parking companies’ conduct is not anymore used as a deterrent for citizens to park insensibly, majority of which are law abiding, instead an impending and instantaneous launch of legal action against most of them, leading to default Judgement by Court in 85% of the 1.1 million cases in year 2016/2017, and majority of these were parking tickets.
21) Considering all above I submit that the Claimant has not met the service requirements of CPR 6.9 and 7.5. respectively:
a) Service has not been effected at a valid address and,
b) For want of valid service, these proceedings have not been served within 4 months of issue.
22) If there was a case that the Court might not be satisfied on above grounds, I may submit that the Court should use its discretionary powers under CPR 13.3, as there is a profound prospect of defending this claim because of several reasons (draft defence can be furnished on Court’s orders).
a) Attached the payment receipts for purchase of the parking ticket during the date & time where the allegation is being made (see Exhibit E15 & E16)
23) I respectfully request the Court that the Default Judgement against me should be set aside and the claim should be dismissed in its entirety. I request the Court to kindly consider the reimbursement of the fee of £275 plus the cost to attend the hearing and relevant litigation in person costs 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.
Full Name: <<Full Name of Defendant>>
(Defendant)
Dated: xx/xx/20xx
=========
4. Questions
1. In the WS point 11, 12 & 13 is it ok to leave it there
2. Are the Exhibit documents looks relevant for set aside (no defence included)
3. N244 Q3 has "Please see the attached Draft Order."
4. N244 Q9 has "Please see the attached Witness Statement."
5. I am planning to send N244 + Draft Order + WS + Exhibit Pack in a mail to ccbcfees@justice.gov.uk. Should I also send all these with 3x copies POSTED to CCBC along with the pay receipt of £275
We haven't slept these entire week and I am to the point where my brain is getting frozen with so much stress to the entire family, in case I have made any mistake or forgetting something please let me know.
I came to know about CCJ on 15/03 and planning to send and pay on 21/03 so any comments before that is highly appreciated.
Finally I don't have any words to thank the forum members like @Coupon-mad, @Le_Kirk, @jaycee31 etc, who has helped me to get to this point.
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Also should I Sign the Draft Order and WS??0
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WS - yes, you have to sign it under a statement of truth (see NEWBIES thread about witness statements).
What have you missed out here? It's meant to say the Claimant do pay your costs, but this says not much at all, doesn't say what you are asking for:2. Costs assessed at £275 plus the Defendant's cost to attend the hearing and relevant litigation in person costs.
I don't think you need #4 about enforcement being on hold, because you are asking for the claim to be dismissed entirely.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Will remove Point 4 from Draft Order.
Not sure what I should replace point 2 with. just simply say "The Claimant to pay the Defendant’s costs of this application on an indemnity basis."
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The Claimant does pay the defendant's costs and consequential costs of the application
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