CCJ Set Aside Guidance

rbceurope

Many thanks @Coupon-mad, have sent the mail to them. 

rbceurope

Hi,

I submitted the N244 in Mar and I haven't heard any court dates yet and having trouble getting re-mortgage and today came to know that broadband connection renewal credit checks failed and no more broadband from end of this month. My car insurance is coming to an end by Jun and expecting soft credit checks to fail due to this CCJ.

How can I speed up the County court hearing dates. 

Coupon-mad

Did you get an acknowledgement email and paid the £275 fee?

Did you then get a notice of allocation to your local court (assuming you started with the CCBC)?  

Ring whichever court/centre still has the case.  Either the CCBC if you think they didn't allocate it out, or the local court if you know it went there.  Remind them this is an application so an urgent hearing, not a parking claim (slower hearing listing).

rbceurope

Yes got the acknowledgement email for submitting N244 online and paid the £275. Got a confirmation form CCBC saying the case has been allocated to local county, intimation came by post in April. Called local county and they confirmed they have received all documents from CCBC in April. The local county court has also contacted CEL which I came to know when CEL sent me "WITHOUT PREJUDICE SAVE AS TO COSTS" where they have confirmed receiving my N244 application from local county court. 

Will call local county court on Monday and remind them this is an application so an urgent hearing is required. 

Also I have got the SAR from CEL and there is a new evidence to prove CEL had my email id and mobile number since 2018 but never used it when there was no response from me for their chase up to old address or contact me to serve the Claim form during Dec 2021. How should I attach these new evidence to already submitted N244.

Coupon-mad

You can sign & date a Supplementary WS with the new evidence attached. 

Did you also (already, with your first WS) attach evidence of moving home and utility bills/bank statements showing your new address at/before the time of the claim (to prove you did change addresses and were never hiding, you were 'there to be found' for the sake of a soft trace) and a copy of the BPA Code of Practice that says AOS members must check they are writing to the right person before filing a claim?

If not, attach that evidence as well as what you have just mentioned, to show they were easily able to find out your address for service but didn't bother.

You could also provide in your WS, commentary and a link to the new Code of Practice from the DLUHC from February, that says that parking firms must carry out a 'soft trace' before filing court claims and then should re-issue a PCN allowing people tom pay at the original rate or appeal, because they never had that chance.  i.e. they can't just blithely use the old DVLA address (or an old postal address they had from months before) and presume that is still good for service of a court claim.  Whilst the new Code is not retrospective, in the most part it is merely clarifying the existing badly-written self-serving Codes of Practice from the two trade bodies and confirming what should have been done by reasonable parking firms all along.  i.e. it's nothing surprising or new.  The code also bans debt recovery fake 'fees' and has declared that extortion, so the claim was exaggerated by £70 that cannot be fairly claimed on top of the £100 parking charge because it was always extortion/double recovery, given the £100 already more than covers all costs of the operation (Beavis case finding).

Did you also have the 'four months dead' argument in your WS and N244?  If not, copy that from @Jack5656's case and declare that the entire claim should be dismissed, due to failure to serve it within 4 months of filing it, and that is not something a court has the power to override or resurrect.

rbceurope

Did you also (already, with your first WS) attach evidence of moving home and utility bills/bank statements showing your new address - Yes (movers bill, bank statements, utility bills)

at/before the time of the claim (to prove you did change addresses and were never hiding, you were 'there to be found' for the sake of a soft trace) - I am assuming the "time of claim" is when CEL served the claim form which is 2021, the initial claim was in 2018 and we moved house in 2018 some 39 months before the CEL served the claim form to my old address.

and a copy of the BPA Code of Practice that says AOS members must check they are writing to the right person before filing a claim? - Kind of mentioned it something like

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 Judgment. This leads to no service; they were not entitled to Judgment and the Court must set aside the claim as per CPR 13.2.

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19) I have also read the consultation on Default County Court Judgments 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 Judgments 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’.

Did you also have the 'four months dead' argument in your WS and N244?  - yes as below

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.

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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.

Coupon-mad

Perfect. 

I like the use of the MoJ and DCLG (now the DLUHC) consultation because it leads really nicely to the new Code of Practice that has dealt with the issue for future cases.

Maybe just add into your Supplementary WS, the BPA CoP where it says about checking they are writing to the correct person (wishy washy speak for 'do a soft trace and check the damn address' which the DLUHC pretty much has in the new Code).

rbceurope

Will include the BPA CoP in the supplement WS and will quote the Code of Practice published by the Secretary of State for the Department for Levelling Up, Housing and Communities (DLUHC).

https://www.gov.uk/government/publications/private-parking-code-of-practice/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.

rbceurope

Coupon-mad said:

1.Yes definitely, in order to establish that CPR 13.2 applies (mandatory set aside).  You need to send that evidence to your court in advance, refer to some of Johnersh's case law authorities and append those transcripts, plus append the BPA CoP section that states that an AOS member MUST check details before filing a court claim.

2. Possibly, if the Judge wants to consider CPR 13.3 as a fallback position and satisfy themselves there are good reasons to allow the application and let you defend the PCN.

Hi,

Can some one point me to the latest defence template please, tried searching in the forum and found this

https://forums.moneysavingexpert.com/discussion/comment/79031299/#Comment_79031299, is this the right one to use??

I am trying to come up with draft defence to show that I have a real prospect of successfully defending the claim to support CPR 13.3 (just in case 13.2 doesn't work as @Coupon-mad has highlighted) and want to attach it as a part of the supplementary WS.

KeithP

rbceurope said:

Coupon-mad said:

1.Yes definitely, in order to establish that CPR 13.2 applies (mandatory set aside).  You need to send that evidence to your court in advance, refer to some of Johnersh's case law authorities and append those transcripts, plus append the BPA CoP section that states that an AOS member MUST check details before filing a court claim.

2. Possibly, if the Judge wants to consider CPR 13.3 as a fallback position and satisfy themselves there are good reasons to allow the application and let you defend the PCN.

Hi,

Can some one point me to the latest defence template please...

Why not use the template Defence found in the sticky thread at the top of the board entitled...

Template defence to adapt for all parking cases where they add false admin costs - edited March 2022