Help please - CCJ & Debt Recovery – from unknown Parking fine

Umkomaas

The PoFA warning is shown on the front page, buried in the tiniest of font right at the foot alongside the hire car guff. There's no mileage in 'I was not the driver'. 

You have to play the long game with CEL. Very few of their claims get to a court hearing when the motorist has put up a defence and goes through all the stages, meeting all the deadlines until, late in the process, CEL offer a reduced figure to settle, but when ignored, they discontinue. It can't be guaranteed in individual cases, but this is their general pattern. 

Trainerman

Umkomaas said:

The PoFA warning is shown on the front page, buried in the tiniest of font right at the foot alongside the hire car guff. There's no mileage in 'I was not the driver'. 

 

Better eyesight than me Umkomaas. I missed that. Great spot !!

Jack5656

Thanks again for all the advice.

I mistakenly thought that proving I was not the driver would be fundamental but now I see that this is not important (except to say I require signage evidence sent to me for defence as never seen this!).

Ideally I should lead the judge to dismiss as a mandatory set aside under CPR 13.2. This is my understanding of the mandatory set aside argument - 

The court proceedings for the claim were not served within 4 months due to Claimant’s failure to follow BPA CoP and confirm they had a current address. As a result the claim is dead and cannot be resurrected. Is that the idea?

All the references to CPR 13.2 I found in online research only prescribe a mandatory set aside if the Defendant had responded in time i.e. under these kind of conditions:

The court will set that judgment must aside if the defendant did any of the following:

• Filed an acknowledgment of service within the time limits set out in the CPR.
• Applied for summary judgment before the default judgment was entered.
• Filed or served an admission to pay all of the money you have claimed (in the case of a money claim), together with a request for time to pay, prior to default judgment being entered.
• Satisfied the whole of your claim before judgment was entered.

This is all about Defendant delay and there is nothing here about the claim not being served correctly?

If the judge is not persuaded and we fall back on CPR 13.3 then a judge can use discretion to set aside (hopefully they will as they can see I was not given the chance to respond to claim through no fault of my own).

But in the discretionary set aside it is necessary to also show you can defend the original claim is that right? I don’t fully get this because if I prove I was not served with the claim and get the CCJ set aside surely the next step is to order CEL to desist or start over by sending the claim from the begining to correct address?

Why then is a 2nd hearing and defence required? Would I not be better off saying I have proved I was not the driver but these are the driver details so now you can go after them and re-start the claim, but that is the end of the court process for me.

Why does the judge need to see you have a reasonable chance of defending / hold a 2nd hearing to use CPR 13.3 in this scenario?

Coupon-mad

Why does the judge need to see you have a reasonable chance of defending / hold a 2nd hearing to use CPR 13.3 in this scenario?

Because that's one of the considerations in 13.3, have you been reading the right thing?

https://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13

Cases where the court may set aside or vary judgment entered under Part 12

13.3

(1) In any other case, the court may set aside(GL) or vary a judgment entered under Part 12 if –

(a) the defendant has a real prospect of successfully defending the claim; or

(b) it appears to the court that there is some other good reason why –

(i) the judgment should be set aside or varied; or

(ii) the defendant should be allowed to defend the claim.

(2) In considering whether to set aside(GL) or vary a judgment entered under Part 12, the matters to which the court must have regard include whether the person seeking to set aside the judgment made an application to do so promptly.

(Rule 3.1(3) provides that the court may attach conditions when it makes an order)

You can't give driver details after court action has commenced, so this remains your claim to defend.

CPR 13.2 is not to do with actions taken by the Defendant:

Cases where the court must set aside judgment entered under Part 12

13.2 The court must set aside(GL) a judgment entered under Part 12 if judgment was wrongly entered because–

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

(c) the whole of the claim was satisfied before judgment was entered.

Jack5656

Coupon-mad said:

You can't give driver details after court action has commenced, so this remains your claim to defend.

So I can't name the driver - that is a surprise and something I did not know (the driver has a lot to answer for creating all this mess for me!)

KeithP

Jack5656 said:

Coupon-mad said:

You can't give driver details after court action has commenced, so this remains your claim to defend.

So I can't name the driver - that is a surprise and something I did not know (the driver has a lot to answer for creating all this mess for me!)

I think what was meant was that you cannot name the driver and absolve yourself from all responsibility.

You are the named Defendant in this case, and will remain the Defendant even if you were to name the driver.

What could happen is that if you successfully Defend this Claim, but in the process name the driver, then the Claimant could then raise a new Claim against the now known driver.

Jack5656

Coupon-mad said:

CPR 13.2 is not to do with actions taken by the Defendant:

Cases where the court must set aside judgment entered under Part 12

13.2 The court must set aside (GL) a judgment entered under Part 12 if judgment was wrongly entered because–

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

(b) in the case of a judgment in default of a defence, any of the conditions in rule 12.3(2) and 12.3(3) was not satisfied; or

(c) the whole of the claim was satisfied before judgment was entered.

Sorry to labour the point but I need to fully understand this before I speak with a judge.

On what grounds can I argue that any of the conditions in rule 12.3(1) and 12.3(3) were not satisfied? What was not satifised from list below....

12.3

(1) The claimant may obtain judgment in default of an acknowledgment of service only if at the date on which judgment is entered—

(a) the defendant has not filed an acknowledgment of service or a defence to the claim (or any part of the claim); and

(b) the relevant time for doing so has expired.

12.3

(3) The claimant may not obtain a default judgment if—

(a) the defendant has applied—

(i) to have the claimant’s statement of case struck out under rule 3.4; or

(ii) for summary judgment under Part 24,

and, in either case, that application has not been dealt with;

(b) the defendant has satisfied the whole claim (including any claim for costs) on which the claimant is seeking judgment;

(i) the claimant is seeking judgment on a claim for money; and

(ii) the defendant has filed or served on the claimant an admission under rule 14.4 or 14.7 (admission of liability to pay all of the money claimed) together with a request for time to pay; or

(d) notice has been given under rule 82.21 of a person’s intention to make an application for a declaration under section 6 of the Justice and Security Act 2013(2) in relation to the proceedings, and that application has not been dealt with.

Is it 12.3 (3) (a) (i) I need to reference as the condition of Part 12 that was not satisfied (to have the claimant’s statement of case struck out under rule 3.4)?

So for CPR 13.2 to be applied - am I applying to strike the claim (CPR 3.4) due to failure to serve within 4 months of claim issue - CPR 7.5 (1) - to Defendant’s usual address, because Claimant did not make reasonable efforts to locate the current address as directed in CPR 6.9 (3)???

Coupon-mad

A little off topic but this is news to me:

https://www.lpc-law.co.uk/news/change-to-the-rules-on-entering-default-judgments/

Worth us knowing that a late AOS is now 'a foot in the door' to defend after all.  It is now OK to do the AOS late, as long as you win the race and the court has not entered judgment (even if the Claimant has sought it)..

Re the OP's query, IANAL and I think the best posters to explain this would be one of these regulars:

@henrik777

@bargepole

or 

@Johnersh

Jack5656

If I may go back on my topic please as I still don't understand

13.2 The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because–

(a) in the case of a judgment in default of an acknowledgment of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied;

I'm still confused because all the 12.3 conditions seem to refer to the Defendant having taken some action (that claimant did not take account of) before the 4 months claim expiry, and clearly I am beyond that with claim having resulted in CCJ years ago.

I can argue (and will) that CEL did not make proper attempts to locate a current address (CPR 6.9) but that seems to relate more to CPR 13.3 discretionary set aside e.g. 'it appears to the court that there is some other good reason why...'

So I am making a renewed plea for advice on how to argue / lead the judge to mandatory set aside (13.2) based on conditions in CPR 12.3 not being satisfied because I don't see the link between 13.2 and 12.3 conditions?

Coupon-mad

This is why I tagged those posters so they might comment.