Getting CCJ set aside for parking ticket even if ai didn't let DVLA know

Umkomaas

I don't think that's relevant to your set aside application, maybe to a defence, but rather tangential. All it really does is expose DCBL's inadequacies. In the extremely unlikely event of you having to defend in court, CEL won't be using DCBL, they have their own in-house barrister, former Wonga Head of Legal - nuff said!

Sman2323

So what was the result at the end??? Is it worth getting a set aside?

Brokenchief

Sman2323 said:

So what was the result at the end??? Is it worth getting a set aside?

Still going. Half thinking I should just pay the extra £85 and have them agree to get it set aside as I'm not very good with this type of thing. 

But with the way prices are at the moment, I also want that £275 back

Brokenchief

@Coupon-mad


So I've copied that Skeleton argument, removed the parts that weren't relevant, and made a couple of minor adjustments. Have I got enough to go on here, do you think?

Will send with your previous reply and PDF copies of those links.

Claim No.:  xxx
Between
Civil Enforcement Limited
(Claimant) 
- and -  
XXX
 (Defendant)
_________________
SKELETON ARGUMENT
 
1 Under CPR 13.2 The court must set aside a judgment entered under part 12 if judgment was wrongly entered.  Given that CPR 6.9 (3) was not met, CPR 13.2 applies and the CCJ should be set aside. As the defendant did not give an address to the claimant at which the claim could be served at (because the defendant was not asked), CPR 6.9 applies. CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence."

2. 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 requested information of the claim on the XXX and received a response with an incorrect date of the alleged offence, 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 (current address).
2.2 There are several authorities for this, including the judgment in Boxwood [2021] EWHC 947 (TCC), which is a reminder 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.
2.3 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.
3 Under British Parking Association Approved Operator Scheme which UK PARKING CONTROL LTD are a part of their code of practice states 23.1.C “Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavours to ensure that the contact details for the person you are writing to are correct.”

 

Coupon-mad

There are now four court transcripts to attach in full, to support the 4 months dead argument:

Boxwood
Vinos v M&S
Croke
Piepenbrock

These are as seen in threads by:

@Jack5656
@GlassRoof36

Brokenchief

@Coupon-mad thank you!

I've finally pulled my finger out and got everything completed today. Gone through a few more threads and I am feeling much more confident.

Should I respond to the email CEL sent to me and the court, or send a fresh email to both of them?

Many thanks

Coupon-mad

I think start a fresh email to CEL and the local court stating what's attached.

And could you kindly post on this similar thread by @aMulqus who has a hearing this Wednesday and will probably struggle to find all the 4 caselaw authorities for a quick skelly, that we've suggested they bung in tomorrow:

https://forums.moneysavingexpert.com/discussion/6332158/surprise-ccj-from-parking-eye-wanting-to-get-it-set-aside-and-overturn-the-original-pcn/p2

As they were first posting in February this was before we found the 4 supporting transcripts that show the court that it has NO jurisdiction to keep a dead claim alive.

Could you possibly post your final skeleton and what attachments you have, with PDF links to each transcript and the BPA CoP?

We could then use yours as a worked example for BPA set aside cases.

Brokenchief

@Coupon-mad I'll post here and in his thread

Thanks for the help.

Files in pdf format at bottom.

Claim No.:  XXX
Between
XXX
(Claimant) 
- and -  
XXX
 (Defendant)
_________________
SKELETON ARGUMENT
 
1 Under CPR 13.2 The court must set aside a judgment entered under part 12 if judgment was wrongly entered.  Given that CPR 6.9 (3) was not met, CPR 13.2 applies and the CCJ should be set aside. As the defendant did not give an address to the claimant at which the claim could be served at (because the defendant was not asked), CPR 6.9 applies. CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence."
2. 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.  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 XXX.
2.2 There are several authorities for this, including the judgment in Boxwood [2021] EWHC 947 (TCC) (please see attached Boxwood.pdf)  , which is a reminder 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.
2.3 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.
2.4 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." 
2.5 In Piepenbrock-v-Associated News Limited [2020] EWHC 1708 (QB) (please see attached Pipenbrock.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.”
4. DVLA address data may not be accurate. 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.
4.2. 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.
4.3. 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. This is further evidence that DVLA address data should not be solely relied upon, especially with DVLA processing delays.
4.4  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).
4.5  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.
4.6 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.
5.  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.”
 
I believe that the facts stated in this Skeleton Argument are true.
NAME DATE

https://www.keepandshare.com/doc15/25449/boxwood-pdf-447k?da=y
https://www.keepandshare.com/doc15/25450/bpa-pdf-871k?da=y
https://www.keepandshare.com/doc15/25451/croke-pdf-304k?da=y
https://www.keepandshare.com/doc15/25452/pipenbrock-pdf-383k?da=y
https://www.keepandshare.com/doc15/25453/vinos-pdf-209k?da=y

Coupon-mad

That's a great resource for new posters, thanks!

No statement of truth was needed in a skelly, but no harm done!

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

Brokenchief

Coupon-mad said:

That's a great resource for new posters, thanks!

No statement of truth was needed in a skelly, but no harm done!

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

Hopefully it helps a few people. Although I can't take much credit for that SA, it's mostly copied from everyone else's haha.