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

Umkomaas

Coupon-mad said:

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

I'm a bit concerned about @henrik777 as he's not been seen on MSE for over 7 months now. He has always previously been such a regular poster, especially on the set aside front. 

Jack5656

Coupon-mad said:

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

Many thanks Coupon hopefully they can give some direction on this very complex subject!

While we wait can I ask for feedback on my supplement to my orginal WS to add some more details/evidence:

1.  I am xxxxxxxxxxxxxxxxxxxxxx, and I am the Defendant against whom this claim is made. The facts are true to the best of my belief and my account has been prepared based upon my own knowledge.

2. This is my supplementary witness statement to my application dated xxxx22 requesting to:

a. Set aside the default judgment dated xxxxx18 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 set aside fee.

Time of Alleged Offence

3.         To supplement point 8 of my Witness Statement I attach the Subject Access Request (SAR) from the Claimant that I received on xx May 2022 (Annex A).

Page 3 of the SAR contains a Penalty Charge Notice issued on xxxx 2018 with time of alleged parking offence as xxxxxxxx  on xxxxxx 2018.

I could not have been the driver in xxxxx at xxxxxx as I was in xxxxxxxx, between 9am and 5pm. I refer to my Witness Statement supporting evidence - Manager Statement and Time Sheet (Annex D ).

 

DVLA Evidence

4. To supplement point 14 of my Witness Statement I attach the Subject Access Request (SAR) sent by the DVLA on xx xxxx 2022 (Annex B ).

Page 2 of the SAR shows the V5C signed on xxx xxx  2018 proving the DVLA were notified of my new address. I moved toxxxxxxx  on xxxxxx and sent the V5C to the DVLA 8 working days later (allowing for public holidays and weekends).

There is a box ‘for official use only’ at the top of the V5C (SAR, Page 2) that was completed by the DVLA with the date ‘xx/xx/2018’. This shows the DVLA had a recorded my new address at least by xx xxx 2018.

The Claimant has advised that on xxxxxx 2018 the DVLA provided them my address as - xxxxxxxxxxxxx. The Defendant cannot be held responsible for the DVLA giving an old address to the Claimant when they were aware of a new address on xxxxxx 2018.

The Claimant acted unreasonably by relying on out of date DVLA address information. The Claimant was not entitled to a default judgment having failed to comply with basic enquiries to obtain a service address and having failed to serve on the Defendant’s usual residential address.

Reasonable Attempts to Trace the Defendant

5.  To supplement point 20 of my Witness Statement I phoned the Electoral Roll office on xx May 2022 who confirmed that I registered to vote at my current address on xx xxxx 2018 This was over a month before the claim proceedings were sent to an old address on xx xxxx  2018. The Electoral Roll office do not keep records of previous address registrations but it is likely I had also registered at my previous address (from xxx  to xxxx )

 

This is further proof that the Defendant was 'there to be found' for the sake of a very inexpensive and immediate credit reference agency address check.

 

 I refer to the British Parking Association Code of Practice 2012 - Version 7, January 2018, clause 23.1c which states:

“Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the Notice To Driver / Notice To Keeper / reminder letters, take reasonable endeavours to ensure that the person being written to is the correct party.”

The Private Parking Code of Practice published on 7 February 2022 by the Secretary of State for the Department for Levelling Up, Housing and Communities (point 10) further states:

“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).”

xxxxxxxxxxxxx , who the Claimant recently instructed to purse the claim, easily found my current address presumably using a credit reference trace. This is something the Claimant and their previous collection agent xxxxxx should have done in 2018 when they had no response from the old address provided by the DVLA. The Defendant was there to be found having updated DVLA, all utilities, banks and xxxx Council with the new address promptly in 2018.

The Claimant has not provided any evidence that they or their agents completed a 29pence bulk 'soft trace' in 2018 despite such reasonable trace attempts being a requirement of the British Parking Association Code of Practice, the pre-action protocol for debt claims, the Financial Conduct Authority (FCA) and Credit Services Association (CSA) rules for debt collection, and the CPRs about reasonable steps to take before filing claims.

The FCA handbook CONC 7.13 (data accuracy and outsourced activities) states:

“Before pursuing a customer for the repayment of a debt, a firm must take reasonable steps to verify the accuracy and adequacy of the available data so as to ensure that the true customer is pursued for the debt and that they are pursued for the correct amount.”

The CSA Code of Practice (Activity Specific Principles, Tracing 7f) states a firm should:

“Attempt to verify data obtained relating to a customer’s whereabouts using one or more information sources, which could include reliable databases, a soft trace letter, contacting other people or doorstep enquiries.”

Such reasonable steps do not appear to have been taken in pursing the Defendant.

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.

Some feedback please on the above...Is this too long for a supplement - are the FCA and CSA rules worth adding in?

henrik777

Jack5656 said:

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?

..........

henrik777 said:

From reading the CPR and the more laypersons versions on other websites I did not think I would be eligible for a mandatory set aside as I have not satisfied 12.3(1-3) of the CPR?

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part13#13.2

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

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

Conditions to be satisfied

12.3

(1) The claimant may obtain judgment in default of an acknowledgment of service only if –

(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.

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part12#12.3

The relevant time for filing an acknowledgement of service 

http://www.justice.gov.uk/courts/procedure-rules/civil/rules/part10#10.3

The period for filing an acknowledgment of service

10.3

(1) The general rule is that the period for filing an acknowledgment of service is –

(a) where the defendant is served with a claim form which states that particulars of claim are to follow, 14 days after service of the particulars of claim; and

(b) in any other case, 14 days after service of the claim form.

(2) The general rule is subject to the following rules –

(a) rule 6.35 (which specifies how the period for filing an acknowledgment of service is calculated where the claim form is served out of the jurisdiction under rule 6.32 or 6.33);

(b) rule 6.12(3) (which requires the court to specify the period for responding to the particulars of claim when it makes an order under that rule); and

(c) rule 6.37(5) (which requires the court to specify the period within which the defendant may file an acknowledgment of service calculated by reference to Practice Direction 6B when it makes an order giving permission to serve a claim form out of the jurisdiction).

If the claim form was not served (or validly served as some may put it) the time limit for acknowledging service has not begun. If it hasn't begun it can't have expired. If it hasn't expired that is a mandatory set aside. 

This is on point with the court of appeal in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016) 

Moreover, I do not consider that the CPR presents an obstacle in the circumstances of this case to setting aside judgment. CPR 13.2 provides that the court must set aside a default judgment where any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied. The latter provision does not apply, but the former is relevant. CPR 12.3(1) states that a claimant may obtain judgment in default of an acknowledgment of service only if (a) the defendant has not filed an acknowledgment of service or a defence and (b) the relevant time for doing so has expired (my italics). I accept Mr McLaren's argument that, when an order for retrospective validation of an alternative method of service has been made pursuant to CPR 6.15(2) the relevant time for filing an acknowledgment of service is the period which the court must specify under CPR 6.15(4)(c). Where, as in this case, the court did not specify any such time there can be no relevant time which has expired for the purposes of CPR 12.3(1). If this analysis is correct the requirements of CPR 12.3(1)(b) have not been satisfied and so the court is obliged to set aside the default judgment pursuant to CPR 13.2(a).

I do not see it as a draconian consequence that a judgment, obtained after deemed service has been effected without specifying a time for that service to be acknowledged, should be set aside as of right in such a case. I agree that CPR 13.2 specifies the circumstances in which a default judgment must be set aside and in my judgment one of those circumstances is when judgment is entered in default of an acknowledgment of service when "any of the conditions in rule 12.3(1)…was not satisfied". Here one such condition was not satisfied, namely the time for acknowledgement of service had not expired, because none had ever become applicable.

This, to my mind, is not "playing technical games" (c.f. the passage from the Abela case, cited at paragraph 11 in the judgment of Longmore LJ). It is merely applying the principle that due process should be followed. If a defendant has never become under a valid obligation to acknowledge service, either as specified under the rules or by order of the court, I do not see how it can be that a judgment can be entered against him in default of such acknowledgment. He is simply not in default at all.

Jack5656

Many Thanks  @henrik777 - that is a wee bit technical but I get the idea now.

So will it be an advantage to reference Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016) in my supplementary WS?

henrik777

If the claim form was not served (or validly served as some may put it) the time limit for acknowledging service has not begun. If it hasn't begun it can't have expired. If it hasn't expired that is a mandatory set aside. 

That's it in a nutshell.

You do need to make the judge aware of it. (technically it shouldn't be in a witness statement, more a skeleton argument, but the rules in these cases are routinely ignored  )

Jack5656

Forgive my ignorance @henrik777 but I am learning all this new langauge and it is a lot to take in.

When you refer to a skeleton arguement is that something that I can verbally raise at the hearing to steer the judge to the correct outcome?

Just wondering how best to add this excellent arguement into my set aside hearing - is adding it to my WS easier in this case?

Coupon-mad

Thanks Henrik, this makes sense:

If the claim form was not served (or validly served as some may put it) the time limit for acknowledging service has not begun. If it hasn't begun it can't have expired. If it hasn't expired that is a mandatory set aside. 

This is on point with the court of appeal in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016).

Jack5656

OK this is my proposed addition to my supplementary WS based on the explanation from @henrik777 - does the below make sense please?

A Default Judgment was wrongly entered

The default judgment must be set aside if wrongly entered (CPR 13.2). As the claim form was not served (or validly served) in xxxxx 2018 (CPR 6.9 (3)) the time limit for acknowledging service has not begun. As the time limit has not begun it cannot have expired. As the time limit has not expired the condition in CPR 12.3(1)(b) has not been satisfied and this should result in a mandatory set aside. 

This is on point with the court of appeal in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016)

Not sure whether to include the reference to the appeal case - can I get some feedback on this please?

Coupon-mad

You must reference and quote that case like @henrik777 did. And attach the court transcript.

Jack5656

Thanks Coupon - is this (below) now correct?

And when you say also attach the court transcript - do I need to add everything from that hearing as well as listed here:

https://www.casemine.com/judgement/uk/5b2897fb2c94e06b9e19e976

A Default Judgment was wrongly entered

The default judgment must be set aside if wrongly entered (CPR 13.2). As the claim form was not served (or validly served) in xxxxx 2018 (CPR 6.9 (3)) the time limit for acknowledging service has not begun. As the time limit has not begun it cannot have expired. As the time limit has not expired the condition in CPR 12.3(1)(b) has not been satisfied and this should result in a mandatory set aside. 

This is on point with the court of appeal in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016)

"Moreover, I do not consider that the CPR presents an obstacle in the circumstances of this case to setting aside judgment. CPR 13.2 provides that the court must set aside a default judgment where any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied. The latter provision does not apply, but the former is relevant. CPR 12.3(1) states that a claimant may obtain judgment in default of an acknowledgment of service only if (a) the defendant has not filed an acknowledgment of service or a defence and (b) the relevant time for doing so has expired (my italics). I accept Mr McLaren's argument that, when an order for retrospective validation of an alternative method of service has been made pursuant to CPR 6.15(2) the relevant time for filing an acknowledgment of service is the period which the court must specify under CPR 6.15(4)(c). Where, as in this case, the court did not specify any such time there can be no relevant time which has expired for the purposes of CPR 12.3(1). If this analysis is correct the requirements of CPR 12.3(1)(b) have not been satisfied and so the court is obliged to set aside the default judgment pursuant to CPR 13.2(a).

I do not see it as a draconian consequence that a judgment, obtained after deemed service has been effected without specifying a time for that service to be acknowledged, should be set aside as of right in such a case. I agree that CPR 13.2 specifies the circumstances in which a default judgment must be set aside and in my judgment one of those circumstances is when judgment is entered in default of an acknowledgment of service when "any of the conditions in rule 12.3(1)…was not satisfied". Here one such condition was not satisfied, namely the time for acknowledgement of service had not expired, because none had ever become applicable.

This, to my mind, is not "playing technical games" (c.f. the passage from the Abela case, cited at paragraph 11 in the judgment of Longmore LJ). It is merely applying the principle that due process should be followed. If a defendant has never become under a valid obligation to acknowledge service, either as specified under the rules or by order of the court, I do not see how it can be that a judgment can be entered against him in default of such acknowledgment. He is simply not in default at all."