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

Jack5656

I will hope to convice the Judge that this claim is dead (which case law and CPRs agree it is). But it concerns me to hear the 'C' can file a fresh claim - that sounds more expensive than engaging with the original PCN and could cause a lot more time and stress to defend.

Coupon-mad

But we never see this happen!

I said 'potentially'. I didn't mean they will. They won't.  Never do, never have.

Jack5656

I'm still amazed they carried on after the set aside, and hopefully they may still pull out before the next hearing if it does not look hopeful to their cause. I did confirm with the court today that there are no costs attached to this hearing - not sure if that is the same for 'C' as well.

Jack5656

@Coupon-mad I have drafted my Skeleton Argument below and woud love some feedback please. I've included everything I think relevant but I am concerned it is too long so please let me know what you think I should cut out - or if it is worth keeping all of it?

Is the claim dead for want of service within 4 months?

1.         This skeleton argument is to assist the Court in the above matter for the hearing dated xxxx.

2.         It is alleged that on xxxx, the Defendant’s vehicle was parked in breach of contract on a private car park managed by Civil Enforcement Limited. This resulted in the issue of a Parking Charge Notice (PCN) and subsequent legal proceedings against the Defendant (as the vehicle’s registered keeper) with a Default Judgment on xxxx.

3.         The Defendant knew nothing about the PCN or the Default Judgment until xxx 2022 as the Claimant failed to contact the Defendant at their current address.

4.         On xxx 2022 Deputy District Judge xxx set aside the judgment dated xxx under CPR 13.2 due to the failure of the Claimant to establish the Defendant’s current address to correctly serve the claim.

5.         The Defendant has identified the following areas of dispute:

(a) The Claimant failed to serve the claim to the registered keeper’s current address.

(b) The Claimant failed to follow the British Parking Association Code of Practice.

(c) The claim is dead as more than 4 months has passed from issue of proceedings and service of the claim was defective.

(d) Relevant case law.

(e) Defendant’s Costs.

 

THE CLAIMANT FAILED TO SERVE THE CLAIM

6.         The claim form dated xxxx was served to a previous address. The Defendant was therefore not aware of the claim until xxx 2022 from a Notice of Debt Recovery dated 31 March 2022 from Direct Collection Bailiffs Limited.

7.         The Defendant has not seen full details of this claim, nor been provided with detailed particulars or images of the sign (the contract) allegedly breached on xxxx. The only notification the Defendant has seen is from a Subject Access Request (SAR) obtained from the Claimant on xxx 2022. The SAR contains the PCN issued on xxxx. The Defendant was not the driver on the date of the alleged offence in xxx on xxx and was working in xxx. Please see the Defendant’s Witness Statement supporting evidence Annex D.

8.         Annex ?? contains a Subject Access Request (SAR) obtained from the DVLA on xxx 2022. The second page of the SAR shows the V5C signed on xxx proving the DVLA were notified of the Defendant’s new address. The Defendant moved to xxxx on xxxx and sent the V5C to the DVLA on xxxx. There is a box “for official use only‟ at the top of the V5C (SAR, second page) that was completed by the DVLA with the date xxxx. This shows the DVLA had recorded the new address at least by xxxxx.

9.         CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence." The Claimant, having obtained an address from the DVLA on xxxx and having received no response, did not have the requisite knowledge nor perform the requisite "reasonable diligence" required to find the Defendant’s correct address in order to serve the claim form in xxxx.

10.       The fact that there was no response from a series of letters sent to the Defendant’s previous address should have alerted the Claimant to the possibility that the Defendant was not residing there.

11.       The Claimant acted unreasonably by relying on out of date DVLA address information and by pursuing a claim without ensuring that they held the Defendant’s current address at the time of the claim.

Electoral Roll

12.       On xxxx 2022 the Electoral Roll office confirmed The Defendant was registered to vote at their current address (moved to in xxxx) from xxxx. This was over 6 weeks before the claim proceedings were sent to an old address on xxxx.  The Defendant updated all utilities, banks, Council and the DVLA with their new addresses promptly in xxxx (see Defendant’s Witness Statement - Annex B and C).

The Defendant was there to be found

13.        The Defendant was 'there to be found' for the sake of an inexpensive and immediate credit reference agency address check. This would have located the Defendant’s current address as shown on the Electoral Roll in xxxx. Direct Collection Bailiffs Limited, who the Claimant instructed, easily found the Defendant’s current address presumably using a credit reference trace. This is something the Claimant and their previous agent ZZPS should have done in xxxx when they had no response from an old address.

14.       The Claimant has not provided any evidence that they or their agent ZZPS completed a 'soft trace' in xxxx 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 BRITISH PARKING ASSOCIATION CODE WAS NOT FOLLOWED

15.       British Parking Association (BPA) Code of Practice was not followed which requires a soft trace to be undertaken. The BPA Code of Practice 2012 - Version 7, January 2018, clause 23.1c 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

16.       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) 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).”

17.       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.”

18.       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.”

19.       A failure to carry out proper checks to establish the right address for service before filing a claim not only breaches the CPRs but also the pre-action protocol for debt claims and the British Parking Association Code of Practice. The Claimant acted wholly unreasonably by deliberately disregarding all rules and caused the claim to be improperly served. This led to the claim being incorrectly served to an old address and an irregular judgment. They failed to serve it at all.

20.       The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses." The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That in the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.”

21.       On xxxx 2022 Deputy District Judge xxxx ordered that the judgment dated xxxx be set aside under CPR 13.2. The Court’s view was that the Claimant failed to take the requisite steps to establish the Defendant’s current address prior to attempting service of the Claim Form.

DVLA address data may not be reliable

22.       DVLA data is provided for a single (very limited) reason, so a parking operator can invite the keeper to name the driver or to pay, or to inform the keeper they will be liable if not, and about their right to appeal.

23.       The system is called 'KADOE' (Keeper On Date of Event) because it is a brief 'snapshot in time' address to enable a parking firm to send a Notice. Operators are only allowed to ask the DVLA once, hence the code of practice requires reasonable steps are taken to check address details are current before litigation. Even if a motorist later updated a VC5 logbook with a new address (or if the DVLA failed to note a change in a timely manner, which is reportedly common) a parking operator will not know, nor be able to find that out.

24.       The DVLA keeper data may be outdated (i.e. the keeper cannot be reached at that address) for millions of motorists as reported in Birmingham Live on 3 November 2021. The parking industry know this, hence Codes of Practice direct that further address checks must be made. While motorists should always update their address in a timely manner (as the Defendant has done), this is further evidence that DVLA address data should not be solely relied upon, especially with DVLA processing delays.

25.       The KADOE address is not provided by the DVLA as a 'court claim service address' and cannot be relied upon, because it's an address where the vehicle was kept at a historical point in time (which may not be where the keeper lives; it's where the car was reported 'kept' last time the DVLA heard).

26.       There is no safe presumption that a DVLA vehicle address is or was a valid address where a Defendant can be served, especially months or years later, especially where there is reason to believe letters are not being received. Silence after sending a Notice to Keeper, a reminder and then a Letter before Claim is a clear indicator that the keeper may not live there.

27.       A claim sent to an old DVLA address with no soft trace checks (costing as low as 29 pence and offered free by debt collectors connected to the parking industry) fails to meet the BPA Code of Practice and fails to satisfy the specific 'pre-action Protocol for debt claims' and is in breach of the CPRs about the obligation to take 'reasonable steps' to check a Defendant's address so that service is effective.

RELEVANT CASE LAW

28.       Case law precludes 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.

29.       There are several authorities, including the judgment in Boxwood [2021] EWHC 947 (TCC) (please see attached Boxwood.pdf), which are reminders of the strictness of the requirements of CPR 7.6 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.”

30.       In judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch)  (please see attached croke.pdf) the claimant was one day late in properly serving the Particulars of Claim to the Defendant and the claimant’s application for relief from sanctions was refused. In section 65 of the transcript of the trial (which is attached) Deputy Master Marsh stated, “The defendants were entitled to know within the four month period specified in the CPR whether a claim had been made against them and to be able to understand that claim. [...] Unless an extension of time is granted, the claim will cease to have any validity and will be struck out." 

31.       In Piepenbrock-v-Associated News Limited [2020] EWHC 1708 (QB) (please see attached ???.pdf) the High Court  refused the Claimant’s application for a retrospective extension of time to serve a Claim Form after the Claimant failed to demonstrate they took all reasonable steps to serve the Claim form in the period of its validity.

“Ultimately, the problem was that the Claimant had made no attempt to serve in accordance with the rules…Although I sympathise with the Claimant that the consequences for him of the error of not validly serving the Claim Form will be serious, there is nothing that really separates his case from many others who have made similar mistakes when attempting to serve a Claim Form…I am afraid, in this case, the responsibility for the failure validly to serve the Claim Form rests solely with the Claimant’s side…

In light of my conclusions above, having refused the applications made under CPR 7.6, 6.15 and 6.16, there is not a residual self-standing power available under CPR 3.9 to relieve the claimant of the “sanction” that, as a result of his failure to validly to serve the Claim Form during its period of validity, it has now lapsed. The term “sanction” is inapt because it would, in theory, be possible for the Claimant to issue and validly serve a fresh Claim Form. The obstacle standing in the way of a claim is not any sanction imposed by the Court but the fact that the limitation period for defamation and malicious falsehood has expired…

Finally, the Claimant seeks an order under CPR 3.10 remedying his error in not validly serving the Claim Form. The Defendants submit that CPR 3.10 cannot rescue the Claimant. This general provision does not enable the Court to do what CPR 7.6(3) forbids: Vinos -v- Marks & Spencer plc [2001] 3 All ER 784; [2001] CP Rep 12 [20].”

Mr Justice Nicklin concluded, “The Claim Form was not served during its period of validity. In consequence, the Court has no jurisdiction over the Claimant’s claim. It follows that I should also formally dismiss the Claimant’s application for summary judgment.”

32.       In Vinos v Marks & Spencer plc [2001] 3 All ER 784 (please see attached vinos.pdf) 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.

33.       CPR 12.3(1) states that a 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. In this case the claim form was not validly served in October 2018 due to failure to check for a current address (CPR 6.9 (3)), therefore 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. This results in a mandatory set aside (CPR 13.2). It follows that if a claim is set aside for failure to be served, then the claim cannot be resurrected and served again after 4 months has passed from date of service pursuant to CPR 7.5(1). 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.”

THE CLAIM IS DEAD

34.       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 (CPR 7.5). 

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

36.       The Defendant requests that this claim be struck out as more than 4 months has passed (CPR 7.5 refers) from issue of proceedings (xxxx) and service of the claim was defective (i.e. it was never served).

37.       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.  

38.       The court is reminded that this Defendant has received nothing to build any defence on. No claim form, no detailed particulars of the claim have ever 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. No address checks were made by this Claimant. 

39.       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.

40.       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.

DEFENDANT’S SCHEDULE OF COSTS

41. In the matter of costs pursuant to CPR 27.14 the Defendant asks for:

(a) Loss of earnings for attendance at court £95.

(b) Research, preparation and drafting documents for this hearing (8 hours at Litigant in Person rate of £19 per hour): £152.

The above does not include the time taken to research, prepare and draft documents for the hearing on xxxx 2022 such as defence and witness statements, which took a minimum of 20 hours. If this was added (20 hours at Litigant in Person rate of £19 per hour) this amounts to another £380.   

TOTAL COSTS CLAIMED: £247

The Defendant humbly requests that these costs be considered.

I believe that the facts stated in this Skeleton Arguement are true.

Many Thanks

Coupon-mad

Remove that last line as you don't sign a skelly and it has no statement of truth.

This should not read 'date of service' at the end of this sentence. Date of filing is correct:

It follows that if a claim is set aside for failure to be served, then the claim cannot be resurrected and served again after 4 months has passed from date of service 

I do think it's too long.

You don't need to repeat ANY argument about why the CCJ should be set aside because the court has already made a finding about that.  Also nothing like 'the Defendant believes' because that's a submission of opinion (witness statement stuff).

A skelly in this case just needs to answer the question: is the claim dead and should it be struck out?

Jack5656

Thanks Coupon!

I did wonder if I should leave out part in 33 entirely i.e. Dubai Financial Group Llc v National Private Air Transport Services Company as it relates to set aside mostly, but I wanted to give the new Judge in this hearing the benefit of reading as much as possible in relation to the past claim issue to set the scene.

Coupon-mad

Maybe leave the case law in, but remove a lot of your first paragraphs as they are restating your case that you've already won.

Jack5656

I've made the Skeleton Arguement shorter but kept in what I think is helpful for context. Any further feedback much appreciated as want to send this tomorrow (with transcripts of those 4 cases referrenced in Case Law section):

Is the claim dead for want of service within 4 months?

1.         The Defendant has identified the following areas of dispute:

(a) The Claimant failed to serve the claim to the registered keeper’s current address.

(b) The Claimant failed to follow the British Parking Association Code of Practice and relevant CPRs.

(c) The claim is dead as more than 4 months has passed from issue of proceedings and service of the claim was defective.

(d) Relevant case law.

(e) Defendant’s Costs.

THE CLAIMANT FAILED TO SERVE THE CLAIM

2.         On xxxx 2022 Deputy District Judge xxxx set aside the judgment dated xxxx 2018 under CPR 13.2 due to the failure of the Claimant to establish the Defendant’s current address to correctly serve the claim.        

3.         CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence." The Claimant, having obtained a previous address from the DVLA on xxxx 2018 and having received no response, did not perform the requisite "reasonable diligence" required to find the Defendant’s correct address to serve the claim form in xxxx 2018.

4.         Annex A contains a Subject Access Request (SAR) obtained from the DVLA on xxxx 2022. The SAR contains a V5C signed on xxxx 2018 which provided notification of the Defendant’s new address. There is a box “for official use only‟ at the top of the V5C (SAR, second page) that was completed by the DVLA on ‘xx/xx/2018’. This shows the DVLA had recorded the Defendant’s new address by xxxx 2018.

5.         The fact that there was no response from a series of letters sent to the Defendant’s previous address should have alerted the Claimant to the possibility that the Defendant was not residing there. Silence after sending a Notice to Keeper, a reminder and then a Letter before Claim is a clear indicator that the keeper may not live there.

6.         The Claimant acted unreasonably by pursuing a claim without ensuring that they held the Defendant’s current address. This address which was on the Electoral Roll at the time of the claim could easily have been traced (Defendant’s Supplementary Witness Statement refers - see Annex B ).

THE BRITISH PARKING ASSOCIATION CODE WAS NOT FOLLOWED

7.         British Parking Association (BPA) Code of Practice which requires a soft trace to be undertaken was not followed. The BPA Code of Practice 2012 - Version 7, January 2018, clause 23.1c states (see Annex C):

“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

8.         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) 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).” 

DVLA address data may not be reliable

9.         DVLA data is provided for a single (very limited) reason, so a parking operator can invite the keeper to name the driver or pay or inform the keeper they will be liable if not, and notify of appeal rights.

10.       The system called 'KADOE' (Keeper On Date of Event) is a brief 'snapshot in time' address to enable a parking firm to send a Notice. Operators are only allowed to ask the DVLA once, hence the code of practice requires reasonable steps are taken to check address details are current before litigation. Even if a motorist later updates a VC5 logbook with a new address (or if the DVLA fail to process a change in a timely manner, which is reportedly common) a parking operator will not know, nor be able to find that out.

11.       There is no safe presumption that a DVLA vehicle address is a valid address where a Defendant can be served. The KADOE address is not provided as a 'court claim service address' and should not be relied upon, as it's an address where the vehicle was kept at a historical point in time (which may not be where the keeper lives; it's where the car was 'kept').

12.       The DVLA keeper data may be outdated (i.e. the keeper cannot be reached at that address) for millions of motorists as reported in Birmingham Live on 3 November 2021 (see Annex D). Motorists should update their address in a timely manner (as the Defendant did in 2018), but the KADOE address data should not be solely relied upon, especially with DVLA processing delays.

13.       A claim sent to an old DVLA address with no soft trace checks (costing as low as 29 pence and offered free by debt collectors connected to the parking industry) fails to meet the BPA Code of Practice, fails to satisfy the specific 'pre-action Protocol for debt claims', and is in breach of the CPRs about the obligation to take 'reasonable steps' to check a Defendant's address so that service is effective.

RELEVANT CASE LAW

14.       Case law precludes 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.

15.       There are several authorities, including the judgment in Boxwood [2021] EWHC 947 (TCC) (see Annex E), which are reminders of the strictness of the requirements of CPR 7.6 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.”

16.       In the judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch)  (see Annex F) the claimant was one day late in properly serving the Particulars of Claim to the Defendant and the claimant’s application for relief from sanctions was refused. In section 65 of the transcript of the trial (which is attached) Deputy Master Marsh stated, “The defendants were entitled to know within the four month period specified in the CPR whether a claim had been made against them and to be able to understand that claim. [...] Unless an extension of time is granted, the claim will cease to have any validity and will be struck out." 

17.       In Piepenbrock-v-Associated News Limited [2020] EWHC 1708 (QB) (see Annex G) the High Court  refused the Claimant’s application for a retrospective extension of time to serve a Claim Form after the Claimant failed to demonstrate they took all reasonable steps to serve the Claim form in the period of its validity.

“Ultimately, the problem was that the Claimant had made no attempt to serve in accordance with the rules. [...] Although I sympathise with the Claimant that the consequences for him of the error of not validly serving the Claim Form will be serious, there is nothing that really separates his case from many others who have made similar mistakes when attempting to serve a Claim Form. [...] I am afraid, in this case, the responsibility for the failure validly to serve the Claim Form rests solely with the Claimant’s side [...]

In light of my conclusions above, having refused the applications made under CPR 7.6, 6.15 and 6.16, there is not a residual self-standing power available under CPR 3.9 to relieve the claimant of the “sanction” that, as a result of his failure to validly to serve the Claim Form during its period of validity, it has now lapsed. The term “sanction” is inapt because it would, in theory, be possible for the Claimant to issue and validly serve a fresh Claim Form. The obstacle standing in the way of a claim is not any sanction imposed by the Court but the fact that the limitation period for defamation and malicious falsehood has expired. [...]

Finally, the Claimant seeks an order under CPR 3.10 remedying his error in not validly serving the Claim Form. The Defendants submit that CPR 3.10 cannot rescue the Claimant. This general provision does not enable the Court to do what CPR 7.6(3) forbids: Vinos -v- Marks & Spencer plc [2001] 3 All ER 784; [2001] CP Rep 12 [20]. [...]

The Claim Form was not served during its period of validity. In consequence, the Court has no jurisdiction over the Claimant’s claim. It follows that I should also formally dismiss the Claimant’s application for summary judgment.”

18.       In Vinos v Marks & Spencer plc [2001] 3 All ER 784 (see Annex H) 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.

19.       CPR 12.3(1) states that a 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. In this case the claim form was not validly served in October 2018 due to failure to check for a current address (CPR 6.9 (3)), therefore 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. This results in a mandatory set aside (CPR 13.2). It follows that if a claim is set aside for failure to be served, then the claim cannot be resurrected and served again after 4 months has passed from date of filing pursuant to CPR 7.5(1). 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.”

THE CLAIM IS DEAD

20.       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 (CPR 7.5). 

21.       The Claimant chose not to attend the hearing on xxxx 2022 where it was shown they failed to establish a current address to correctly serve the claim. The Claimant is wholly responsible for failing to serve the claim correctly within the 4 months (as required by CPR 7.5) and as a result this claim is dead.

22.       The Claimant should not be given extra opportunities to waste the Court’s time after failing to follow pre action protocols for debt claims, breaching the BPA code of practice and the CPRs about taking 'reasonable steps' (CPR 6.9) to check a Defendant's address.

23.       If the Claimant believes they still have a claim then filing afresh is the only way forward. The Claimnat may send a ‘Letter Before Claim’ to the right address, this time following the pre-action protocol for debt claims. The court is reminded that this Defendant has received nothing to build any defence on. No claim form, no detailed particulars of the claim have ever been sent to the Defendant’s current address.

24.       This claim should be struck out as more than 4 months has passed (CPR 7.5 refers) from issue of proceedings (xxxx 2018) and service of the claim was defective (i.e. it was never served).

DEFENDANT’S SCHEDULE OF COSTS

25. In the matter of costs pursuant to CPR 27.14 the Defendant asks for:

(a) Loss of earnings for attendance at court £95.

(b) Research, preparation and drafting documents for this hearing (10 hours at Litigant in Person rate of £19 per hour): £190.

The above does not include the time taken to research, prepare and draft documents for the hearing on 1 June 2022 such as defence and witness statements, which took a minimum of 20 hours. If this was added (20 hours at Litigant in Person rate of £19 per hour) this amounts to another £380.   

TOTAL COSTS CLAIMED: £285

The Defendant humbly requests that these costs be considered.

Defendant’s signature:

Date:

Coupon-mad

Your schedule of costs is a different document than the skeleton, so make sure you separate them.

Are you appending Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016) given you are quoting from it?

Jack5656

Ah thank you Coupon - I didn't know the costs went on a separate document!

Yes I am appending Dubai Financial Group Llc v National Private Air Transport Services as a transcript - that is 5 transcipts of case law in all now.