Dilemma-pay CCJ within 30 days or set aside

kiddo19

I really wish the claim could be struck out so that I don’t have to prepare for the defence to convince the judge that I have a good chance to win in the next hearing after set aside hearing. So 4 months dead claim is crucial to me if more evidence or case law can support this I would be very grateful. 

Coupon-mad

The case law on this was supplied by @Johnersh last year, and I assume was cited in the CCJ set aside example by @Jack5656

You need to know when the claim was filed. Ring the CCBC.

Johnersh

The CPR rules are clear, but if you want a recent case applying them, you can read this... Where C served the supporting docs, but forgot the claim form. 

https://www.bailii.org/ew/cases/EWHC/TCC/2021/947.html 

In most cases, the claimant will still be within limitation and an start afresh. That is actually a positive point (as I see it) since you are not asking the DJ to deny the claimant a cause of action if they are wedded to it, but simply pointing out this is not something that can or should be salvaged by the back door and certainly without an application. The onus is on the claimant to check and get it right.

Having written to you at a new address (which was acknowledged) it self evidently is not a last known address.  The fact that a new address was located shows suspicion or actual knowledge that you no longer resided at the previous address.

There was a further opportunity to correct that error as the claimant should have identified the issue before gaily applying fir judgment. The question I might ask is how did they think it appropriate to apply if they never checked the file to ensure it was appropriately served?

kiddo19

Coupon-mad said:

The case law on this was supplied by @Johnersh last year, and I assume was cited in the CCJ set aside example by @Jack5656

You need to know when the claim was filed. Ring the CCBC.

I called the CCBC who advised that the claim form was served on 10th February 2022. 

Coupon-mad

Great. In fact it wasn't 'served' (to you) at all, so make sure throughout this process that you use the right terminology.  It had an 'issue date' of that day. 

Therefore, the 'four months dead/claim MUST be dismissed and can't be resurrected by the courts'  argument works this week!

Johnersh

If the claim was issued on 10 Feb 2022 then 4 months expires on 9 June 2022.

If the claimant is now aware that you claim not to have been served they can (1) apply now (within time) for a time extension, to dispense with service etc  or (2) serve a duplicate claim form.

If they elect not to do so, they will have voluntarily allowed the claim to lapse when on notice of failed service.  That's quite a powerful point. 

kiddo19

Johnersh said:

If the claim was issued on 10 Feb 2022 then 4 months expires on 9 June 2022.

If the claimant is now aware that you claim not to have been served they can (1) apply now (within time) for a time extension, to dispense with service etc  or (2) serve a duplicate claim form.

If they elect not to do so, they will have voluntarily allowed the claim to lapse when on notice of failed service.  That's quite a powerful point. 

Option 1, within what timescale can C apply for an extension? Option 2, can they still serve the duplicate claim form after set aside hearing? Also how do I know if they’ll allow the claim to lapse voluntarily? 

My hearing is scheduled to next Tuesday 28th, it’s a telephone hearing. I was requested to provide a phone number 48 hours in advance. I called Liverpool County Court today was asked to email my number. The staff was surprised the email address was not on the letter. 

Another thing puzzled me was that I was not requested to provide evidence bundle, when I am searching on the forum others were asked to do so. 

Suppose I’m getting nervous now when the time is approaching. 

Coupon-mad

As this is a CCJ set aside hearing, as long as you've put in your N244 and witness statement (and draft order if you did one) then most courts won't have asked for more at this stage.

A few courts do ask for a defence to the original claim as well but that's not what your hearing is for and is not the norm.  Generally, there is a second hearing set later for that (unless you convince the Judge to dismiss the unserved claim outright, due to the '4 months dead' case law - we hope so!).

The Judge might ask at the hearing what your defence against the PCN will be, so have that in bullet points on your crib sheet. E.g. typically: Lack of clear signage, not knowing what the alleged breach even is or who was driving/not knowing whether the claimant complied with the POFA 2012, whether a fair grace period was allowed, whether the car was even in the authorised enforcement area, etc.

I believe that they are now too late to apply for an extension, which had to be done in time (within the 4 months).

can they still serve the duplicate claim form after set aside hearing? 

If the Judge says they can! What the Judge decides, goes, and small claims are a lottery.

Your job is to convince the Judge that this particular unserved claim CANNOT be resurrected now, and the case law confirms this legal position.  This is not harsh on a claimant because they have failed to carry our reasonable steps to check - not your fault - and if they think they have a case there is nothing to stop them filing a fresh claim to the right address and starting again.

So what you are asking to be ordered, is not in any way unfair on a claimant who has undoubtedly been unfair to you!

Be well aware that too many Judges (e.g. as in Jack5656's case and others) start from the erroneous presumption that it is perfectly OK for a parking firm to get DVLA data and just store it for months and use that unreliable source for a later court claim, regardless of lack of reply to earlier letters, and that it is the Defendant's fault if that data was temporarily not updated.

This is wrong. A defendant might overlook updating their V5C but this is very common and two wrongs do not make the parking firm right.

As I posted here, all 3 parking Codes of Practice plus the CPRs require that reasonable steps to check an address are taken (over and above just 'winging it' with - known to be very unreliable - DVLA car registration address data obtained months or years earlier): 

https://forums.moneysavingexpert.com/discussion/comment/79286524#Comment_79286524

I can't recall if yours is one of the cases where the PPC did have your new address?

If so, then I'd go as far as saying that it would be a terrible Judge who didn't see this conduct of them filing a claim to a known wrong/old address as wholly unreasonable...with bells on! Of course the claimant should be ordered to pay all your costs thus far, including any loss of leave or earnings for attending on Tuesday.

Make sure you ask for your costs.  No letting the Judge forget.

kiddo19

Coupon-Mad you’re right, it is me that they sent a letter to my current address in December, I also emailed them with my current address in January. 

I’ll definitely use 4 months dead hoping to get the claim struck out. I did provide a draft Order and evidence of my emails to them as evidence. Thanks for letting me know that not all courts require bundles before hearing. 

What against me is forgetting changing address with DVLA after 4.5 years moving, even 2 months after finding out the CCJ, as I was too adamant to double check my V5 record! Very regretful. Your link and posts are extremely helpful for my fight. I’ll go over a few times in the next few days. 

Cheers 

Coupon-mad

Thing is, you can legitimately say this is happening to tens of thousands of innocent people who perfectly understandably hold the honest belief that sending off their driving licence to the DVLA when they move house is surely all that is needed in this day and age.

People think they've 'done' the DVLA, just as when you tell your bank your new address you have 'done' that too and can fully expect that ALL their databases are changed - all your accounts and products - even if you only mention your current account when you notify them.

The DVLA is a quango that should absolutely be expected to be operating a 'tell us once' decent service and they know full well you are the same data subject AND that the GDPR and DPA 2018 requires by law that ALL data be rectified when consumers update something fundamental in a database, like an address.

Even if you had changed your address with the DVLA at some earlier point since the PCN, that's irrelevant anyway because:

(a)  PPCs cannot ask for DVLA data twice (which is why they are required under the CoP to check it with a very simple bulk 'soft trace' - costs 29 pence) and

(b). You'd given them your correct address for service months ago anyway! So the old DVLA data was redundant and should have been erased from that moment (under the DPA 2018 'right to rectification' and incorrect data 'erasure').