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

Coupon-mad

Ok you could miss that out if you have everything! Leaves more room for citing the case law...

Yes copy it here for comments.

Jack5656

OK here is what I have drafted to email the Court:

I am the Defendant and refer to the judgment dated xx June 2022.

I sent an email on xx June asking to see details of the Claimant’s response to the Court of xx June 2022. I have now seen the response where the Claimant asked for the Claim to be restored and allocated to the Small Claims Track.

I request that the following objection is added to the file for the urgent attention of the judge:

I object to point 2 of the Order dated xx June 2022 which gives the Claimant an unlawful lifeline to notify the Court of further directions they seek to take. The claim should have been dismissed as part of the Order pursuant to CPR 7.5 and in line with the case law below:

Boxwood Leisure Ltd v Gleeson Construction Services Ltd [2021] EWHC 947 (TCC), 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.

I object to the Claimant’s request dated 23 June 2022 to restore the claim.

Case law prevents the court from resurrecting a dead claim more than 4 months after it was improperly served and does not give the courts any scope to do so.

The Claim Form dated xx xxxx 2018 was never served on the Defendant’s current address which resulted in the set aside ruling of xx June 2022.

Given that more than 4 months has passed (CPR 7.5 refers) from issue of proceedings (xx xxxx 2018) and service of the claim was defective (i.e. it was never served) the Defendant submits that this claim is dead and the period for service cannot be extended by any further application. 

Continuing a dead claim more than 4 months after it was raised (but never properly served) is impossible under any rule of law or practice.

This was all before the learned Judge and the Claimant didn't bother to attend the hearing on xx June 2022. I refer to my Witness Statement point 21:

21. Given that more than 4 months has passed from issue of proceedings and service of the claim was defective (i.e. it was never served) the Defendant submits that this particular claim is dead and the period for service cannot be extended by this application process. The Defendant has not seen the details of this claim, therefore, if the Claimant believes there is a cause of action then the correct procedure would be to file a claim afresh and to the right address, after furnishing the Defendant with the information required under the pre-action protocol for debt claims, issued this time to the correct address for service for this Defendant, which is xxxxxxxxx.

If the Claimant believes they still have a claim, they may send a Letter Before Claim 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 to build any defence on. No claim form, no photos or detailed particulars of the claim have been sent to the Defendant’s current address. This is why the British Parking Association (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 code of practice requires reasonable steps are taken to check address details are current before litigation. No address checks were made by this Claimant. 

Even if the Court believes it can somehow resurrect the dead claim, despite the authorities cited above, 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.

Filing afresh after going through the relevant Pre Action Protocol 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.

A bit long for an email maybe? Is it better sent as a pdf attachment?

Let me know what you think please.

KeithP

This was all before the learned Judge and the Claimant didn't bother to attend the hearing on xx June 2022. 

Can you re-phrase that bit?
My first reading was that you were criticising both the Claimant and the Judge for not attending. 

Coupon-mad

Apart from that, I would just send it. This is never going to be short!

Copy in CEL as that looks reasonable.

Jack5656

Thanks very much for the feedback!

I will rephrase as...

This was all before the learned Judge at the hearing on xx June 22. I refer to my Witness Statement point 21 below...

I will then add this just before the final para...

The Claimant chose not to attend the hearing on xx June 22 where it was shown they failed to serve the claim correctly and as a result their claim is dead. The Claimant should not be given extra opportunities to waste the Court’s time after failing to follow the pre-action protocols for debt claims and their own BPA code of practice.

kiddo19

I do feel for you. Your posts have helped me tremendously. My hearing was on 28th June and the C didn’t attend. I had the same results as yours. Now I haven’t received my Court Order. After reading your latest posts, I’m getting worried the same would be happening to me. The evil PPC, when are they going to be clamped down?! 

asp746

sorry to interrupt but this has just happened to me - i parked and forgot to pay so I'm not challenging I owe the parking fine but my problem is why they took it to the County Court - worse is that i've got two CCJs each for £257.  I notified DVLA as soon as I moved but i've just looked and i don't think i filled the v5 doc in.    Zero lenders will touch me and I had an excellent credit score.  It was Excel parking who nabbed me     I just don't think they've put any effort in to find me and i don't understand why the dvla who do the licences isn't linked to the vehicle registration department.  Anyway i'm going to appeal, any pointers gratefully received.

Coupon-mad

You are not going to 'appeal'.

You need to apply for a set aside x 2, using form N244 and as well as this useful example thread, please read those by:

@eb23456
@msx999
@paulr23

barneybetty

I had my hearing today and stupid me only submitted my supplementary witness statement to the court and not to the claimant . The judge asked at the beginning if claimant wanted to continue when it came to light that claimant did not have the 2nd witness statement , which they agreed to continue then towards the end request for it to be adjourned . Feel so frustrated as I sent the application for the CCJ to be set aside 1st April and my hearing dates was today . Having to pay claimants costs for today and hopefully get another court date soon . Does any body know the time frame courts like to get the 2nd hearing in by ? I have sent the claimant the additional witness statement and request the details of where payment need to be made . Feel so angry at myself for letting myself down . 

Coupon-mad

barneybetty said:

I had my hearing today and stupid me only submitted my supplementary witness statement to the court and not to the claimant . The judge asked at the beginning if claimant wanted to continue when it came to light that claimant did not have the 2nd witness statement , which they agreed to continue then towards the end request for it to be adjourned . Feel so frustrated as I sent the application for the CCJ to be set aside 1st April and my hearing dates was today . Having to pay claimants costs for today and hopefully get another court date soon . Does any body know the time frame courts like to get the 2nd hearing in by ? I have sent the claimant the additional witness statement and request the details of where payment need to be made . Feel so angry at myself for letting myself down . 

Oh dear.  Oh well, onwards and upwards.  

But you ned to post on your won thread again.  It's here:

https://forums.moneysavingexpert.com/discussion/6349160/request-to-set-ccj-aside-ukpc#latest