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

Jack5656

Thanks again Coupon. Hearing very soon now so reviewing my arguements. One thing I'd like to confirm for mandatory set aside arguement please:

Once a claim is issued (stamped) by the court, it must be served within 4 months of that date under CPR 7.5.

CPR 7.5

(1) Where the claim form is served within the jurisdiction, the claimant must complete the step required by the following table in relation to the particular method of service chosen, before 12.00 midnight on the calendar day four months after the date of issue of the claim form.

Am I correct in saying that the above relates to ensuring particulars of claim reach the Defendant within 4 months after the claim form has been served? Or is CPR 7.5 more about sending a claim form to notify the Defendant within 4 months of the court date stamping/accepting the claim?

Often the particulars are served with claim form, so if claim form with the particulars has been sent to wrong address then the claim was never served. And as we're over 4 months from issue of the claim form (containing partiuclars of the claim) then the claim is dead. Is that correct?

Johnersh

I haven't read the specifics here, but in the generality...

In parking cases the particulars are almost always set out on the face of the claim form. The court dispatches the documents to the given address.

If the claimant realised their error and found an alternate address a month or two later, they could ask the court for a duplicate claim form and serve to the correct address. Easy. 

If that hasn't occurred and if after 4 months, the claim form has never been served upon compliant address for service (cpr rules refer), the claim expires. 

The claimant is permitted to start again with a fresh claim (provided they are within limitation) but there is no cpr provision that salvages an unserved claim, especially in circumstances where the claimant has not applied to dispense with service or to seek service by alternate means. 

Jack5656

Thanks Johnersh that does confirm my suspicion that the Claim Form normally contains all the particulars so if that claim form was not served correctly - in my case it is now long dead. As you say the C can start afresh but hopefully will not bother!

Jack5656

There is no evidence in SAR to show CEL performed a soft trace for my current address…this breaches the CPRs for filing claims- namely CPR 6.9 (3) - and the pre-action protocol, as well as the BPA Code of Practice.

I have pulled out the parts below that relate which I could raise at the hearing?

Pre Action Protocol 3 says court expects the parties to have exchanged sufficient information to… (c) try to settle the issues without proceedings;

Pre Action Protocol 6 says  the parties should comply with that protocol before commencing proceedings. This includes- (a) the claimant writing to the defendant with concise details of the claim.

Pre Action Protocol 8 says. Litigation should be a last resort…parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.

Pre Action Protocol 13 says. If a dispute proceeds to litigation, the court will expect the parties to have complied with a relevant pre-action protocol.

Pre Action Protocol 14 says - The court may decide that there has been a failure of compliance when a party has—

(a) not provided sufficient information to enable the objectives in paragraph 3 to be met;

(b) not acted within a time limit set out in a relevant protocol, or within a reasonable period;

Pre Action Protocol 16 says  The court will consider the effect of any non-compliance when deciding whether to impose any sanctions which may include—

(a) an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party or parties;

(b) an order that the party at fault pay those costs on an indemnity basis;

I submit that the Pre Action Protocols above have not been met as the C has failed to make a reasonable attempt to trace the current address for the D to enable notification of the claim as set out in Pre Action Protocol 3.

The C has therefore wasted the court’s time by proceeding to ligation against Pre Action Protocol 8.

I therefore invite the court to consider awarding costs against the C on an indemnity basis as set out in Pre Action Protocol 16.

Coupon-mad

It's more than PAP.  It's a CPR rule and a condition of their Trade Body CoP that an AOS member must take 'all reasonable steps' to check the details (including address) before filing a claim.

If there is 'reason to believe' the address nay not be right they are obliged under the CPRs to do more checks or seek an alternative method of service, as Johnersh said. Not just plough ahead with an unchecked DVLA car registration address from months or years earlier, which has never elicited any replies to earlier letters, so it is likely they were not reaching you.

DVLA addresses are only sold to PPCs for the very limited data purpose of allowing a PPC to 'invite the keeper to name the driver' and the address provided by the DVLA does not purport to necessarily be the home address of the car owner. It is not to be relied upon in isolation, as an address for service. 

This is reiterated by the Govt in the new incoming statutory February 2022 Code of Practice, which is, in the main, nothing new, just better wording and best practice spelt out.  This betters the (deliberately?) vague wording of the self-serving Trade Body Codes and states that a soft trace must be undertaken and a fresh PCN issued to any new address (not sue in bulk using any old address for people, and hope to gain default judgments and/or inflated payments from scared consumers when they finally find out what the PPC has done).

BTW, Johnersh is a solicitor.  Use HIS words as your oral argument, not mine or your own re-write.

Jack5656

Coupon-mad said:

DVLA addresses are only sold to PPCs for the very limited data purpose of allowing a PPC to 'invite the keeper to name the driver' and the address provided by the DVLA does not purport to necessarily be the home address of the car owner. It is not to be relied upon in isolation, as an address for service. 

Is that in writing anywhere - I'd like to quote that to the judge but might need to back it up with reference.

Coupon-mad

The DPA 2018 lays out the data principles.  Data can only be used for the purpose it was obtained.  Can't be stored too long or used for other purposes (in the case of DVLA data, it might be a step too far to assume it's proof of the last known residential address for someone, because it's not given on that basis.  It relates to a CAR not a person).

Your V5C says summat like 'this document is not proof of ownership' and I suspect the KADOE rules (between PPCs and DVLA) state somewhere that the data purpose is to 'invite the keeper to name the driver or pay the PCN'.  That's the data purpose.

The DVLA don't guarantee it is up to date (it often isn't) nor that it is the residential address of the keeper, because it might not be.  They just sell what they have to the PPCs, no questions asked and no checks made.

Jack5656

I located this in KADOE rules:

B2. Purpose For Which Data Is Provided
B2.1. The DVLA shall provide each requested item of Data to the Customer via the KADOE Service for the Reasonable Cause of enabling the Customer to:
a) seek recovery of unpaid Parking Charges in accordance with the Accredited Trade Association Code of Practice, and using the procedure in Schedule 4 to the Protection of Freedoms Act 2012 (where the vehicle was parked on private land in England or Wales on a particular date); and

I'd argue that the 'C' has not sought recovery of the Parking Charges in accordance with their ATA - BPA CoP clause 23,1c, or to CPR 6.9 (3) to make reasonable attempts to locate a current address.

Jack5656

I have just had this hearing by telephone and although it was short and did not go as well as I hoped (I didn’t get to use 90% of my arguments!), I think overall it was successful…but with a caveat that I would like an opinion on please.But firstly huge thanks to everyone who has helped my on here to get to this stage with special mention for Coupon Mad for answering my endless questions!

The hearing –

The judge did not have my supplementary WS and SAR evidence despite my sending last week and phoning the court twice to confirm they had it and ask they would add to my main WS. The judge started by saying that he understood that I wanted to set aside based on never having the claim served on my current address.

The judge then said that the 'C' was entitled to rely on the DVLA notice of address so my argument does not get me out of jail so to speak. I responded by saying I did update DVLA promptly and in my latest evidence (that did not get to judge!) was a SAR with V5C showing DVLA had received with my new address sent 7 days before DVLA gave the previous address to CEL.  Judge wanted to know when I sent the V5C. I said the date and explained that the V5C from SAR has an official date stamp of 7 days after I sent it  so DVLA did know about my new address by the time/date that CEL were given the old address.

I argued that under CPR 6.9 (3) CEL had not showed due diligence to locate the current address and that I had updated DVLA, bank, utilities and council with my new address promptly. The judge said he did not necessarily agree with my methodology but that we will both come to the same conclusion.

The judge decided that because the claim form was issued 9-10 months after the address change/update that CEL should have made attempts to trace the current address and therefore he would have to set aside the claim under CPR 13.2 and that the claim is dead (hoorah!).

However - and this is the bit I need advice on please - the judge also said he is going to give CEL 7 days to respond to the judgment  and decide how/if they want to proceed next. I am really confused about this because if it is a mandatory set aside and the claim is ‘dead’ then what can CEL do next? Would they appeal? I asked the judge who said ‘I don’t have a crystal ball to gaze into so I cannot tell you what they might do’ and I got the impression I needed to shut up then!

I assume we cannot have a 2nd (defence) hearing as this is a mandatory set aside, but then I expected the judge to say that CEL can start the claim afresh to the correct address but he did not say that - only that CEL have 7 days to respond to the judgement and if they don’t challenge it then they must pay my £275 costs.

So I think I have succeeded but just a bit concerned about the 7 days given for CEL to respond and what this means as not come across that delay for a mandatory set aside before. Any idea what CEL could do next?

Jenni_D

I suspect CEL will be given the opportunity to "appeal" the judgment. If they don't (or do but it is rejected) then the previous claim is dead - and that's the result you wanted! 😀 Plus they're liable for your costs. (£275, plus loss of earnings for the hearing?). You should receive a copy of the written judgment.

They will be allowed to file a new claim anyway - anyone can file a claim against anyone else for anything. That doesn't mean they'd be successful though - and I suspect they'll just walk away with the tail between their legs; easier fish out there to fry.