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

Coupon-mad

No, they could do that but as the Order invited them to 'provide Directions' it's a free hit to bamboozle a Judge and say any old thing that they want.

It is an odd Order!

Jack5656

Yes I did not like the way the Judge left the door open to CEL to challenge the order - it should have been an open and shut case - set aside and struck out if they made proper reference to the CPRs.

Makes no sense why they are applying for a 2nd hearing unless they think I will pay all their costs if they win. Surely it costs CEL more to go court than to settle out of court!?

Coupon-mad

Yes it does. Costs them a lot - but maybe they've opposed the entire Order and are trying to appeal it.  You can't know till you are told more.

Jack5656

CEL have sent me the email they sent to Court last week (and also say they are raising a cheque for costs)...

There is hardly any detail on their email to court, it just states:

We refer to the above, and the court order date xx June 2022.

The Claimant confirms that they would like the Claim to be restored and allocated to the Small Claims Track.

So where does that leave me?

Is it worth suggesting to CEL we come to an agreement outside court if I pay the original PCN saving us both time money and additonal costs? Or better to agrue the claim cannot be restored (something I have made clear in my email yesterday to court / CEL). Then again I am not confident the Judge 'gets' CPR 7.5 and the 4 months claim is dead arguement as they offered CEL the option to respond and thus allow them to take this further!

Jenni_D

Why would you offer to pay them anything?

Jack5656

To avoid potentially paying more at a 2nd hearing if judge finds in their favour and awards costs against me  And also to bring this ongoing stress to an end, those are my reasons. 

Coupon-mad

You won't get their costs awarded against you. That only happens if you act unreasonably.

There is NO ADDITIONAL COSTS RISK and no reason to start offering to pay.

ASK FOR THE FOLLOWING OBJECTION TO BE ADDED TO THE FILE FOR THE URGENT ATTENTION OF THE JUDGE:

You should formally object to that Order from the first Judge, as it gave the Claimant an unlawful lifeline. The claim should have been dismissed as part of the Order, given the case law adduced by the Defendant.

And object to their email as I already advised you yesterday and point out that the case law preventing the court from resurrecting a dead claim more than 4 months after it was improperly served does not give the courts any scope to do so.

This was all (including authorities) before the learned Judge and the Claimant didn't bother to attend. Continuing a dead claim more than 4 months after it was raised (but was never properly served) is impossible under any rule of law or practice.

If the Claimant thinks they have a claim, they may send a LBC to the right address, follow the pre-action protocol for debt claims, then file afresh.  The court is reminded that this Defendant has received nothing. No evidence, no claim form.  This is why the BPA Code of Practice does not allow old DVLA addresses to be used without a 'soft trace' being carried out before filing any claim later in the process.  Parking firms cannot ask the DVLA twice, hence the rule about having to take reasonable steps to check the details before litigation. No address checks were made by this claimant. 

Filing afresh after going through the relevant PAP is the only way forward for this Claimant, under the circumstances of their failing to comply with the BPA Code and the CPRs about taking reasonable extra steps and checking an address for service.

(BTW having a second hearing is normal - most people have two hearings in CCJ cases, so if the court is not helpful then this simply continues as normal; you would simply defend/send evidence and you'd 99% likely win or you will almost certainly find CEL discontinue when they see your second WS and evidence against the claim). 

Jack5656

Coupon-mad said:

You should formally object to that Order from the first Judge, as it gave the Claimant an unlawful lifeline. The claim should have been dismissed as part of the Order, given the case law adduced by the Defendant.

I agree that the Judge acted very unfairly (or erred) by allowing CEL this lifeline! But is it not too late to object now? I think I received the Order  on 18 June (relating to the hearing/judgment at start of June)?

And object to their email as I already advised you yesterday and point out that the case law preventing the court from resurrecting a dead claim more than 4 months after it was improperly served does not give the courts any scope to do so.

I sent an email yesterday objecting if the Claimant sought to continue their claim and referenced CPR 7.5 and the Boxwood case. I will send another email tonight with the formal objection you detailed thank you! I just hope that does not antagonise the Judge by highlighting their error if same Judge reviews the file for a decision on a 2nd hearing?

This was all (including authorities) before the learned Judge and the Claimant didn't bother to attend. Continuing a dead claim more than 4 months after it was raised (but was never properly served) is impossible under any rule of law or practice.

I don't think my WS directly mentioned Boxwood, only that the claim should be dead as 4 months have passed:

...having a second hearing is normal - most people have two hearings in CCJ cases, so if the court is not helpful then this simply continues as normal; you would simply defend/send evidence and you'd 99% likely win or you will almost certainly find CEL discontinue when they see your second WS and evidence against the claim.

CEL have already been copied into my Draft Defence and I hoped that would stop them pursuing this but they seem intent on carrying on!

In this case though we would not expect a 2nd hearing would we? CPR 13.2 was used = mandatory set aside, but does it follow in law that the claim is also dead (4 month rule), or is that open to Judge's interpretation??? That is the key here I think!

Coupon-mad

They don't know when you received the Order, so certainly email tonight, so it is dated June.  Not July! 

Bung in the 2 authorities now...go for the jugular.

A set aside under CPR 13.2 doesn't automatically dismiss the claim, no. The normal course of events has always been a second hearing.

The 4 months dead argument is a new one.  But you used it so it's worth pressing the point.

Worst that can happen is you receive your £275 cheque and a second hearing is set (as always used to happen here - we still win!).

...but you do need to stress in this email that you have nothing to build any defence on, no claim form and no photos or detailed particulars, so even if the court believes it can somehow resurrect the dead claim, despite the authorities below, the Claimant must surely be required to furnish the Defendant with full and detailed particulars and photo evidence as well as images of the sign (the contract) allegedly breached.

Boxwood Leisure Ltd v Gleeson Construction Services Ltd [2021] EWHC 947 (TCC), which is a reminder of the strictness of the court process and how difficult it is to use other parts of the Civil Procedure Rules to rectify a failure to serve the claim form within the requisite period: “A claimant is not entitled to rely on the wide, general powers under CPR 3.10 or CPR 3.9 to circumvent the specific conditions set out in CPR 7.6(3) for extending the period for service of a claim form."

 And

1.9 In Vinos v Marks & Spencer plc [2001] 3 All ER 784 the Court of Appeal considered whether any extension of time should be granted under CPR 7.6 in circumstances where the defendant had been notified of the issue of a claim form but the claim form had not been served within four months as required by CPR 7.5 and the application was made after expiry of that period. The court refused to grant relief on the basis that it did not have power to do so.

Jack5656

..but you do need to stress in this email that you have nothing to build any defence on, no claim form and no photos or detailed particulars, so even if the court believes it can somehow resurrect the dead claim, despite the authorities below, the Claimant must surely be required to furnish the Defendant with full and detailed particulars and photo evidence as well as images of the sign (the contract) allegedly breached.

I have received the original PCN, Claim Form and ANPR photos by way of a SAR from CEL, so is it fair to say I have nothing to build a defence on? CEL never served the Claim Form or sent a PCN to a current address so really they should be made to send the particulars of the claim from scratch.

Time to start my objection email - I'll post if here for a review if that's ok?