n244 application advice please - multiple CCJS

ginlover92

Hi

long story short, I got a new job in 2017, moved home in 2018 and have received 3 letters from DCBL in the post regarding 3 CCJs I knew nothing about, and discovered 2 more on Noddle. I have contacted the CCBC and got the info, all relating to PCNs in the same car park as my work, from Civil Enforcement. I have read posts in this forum at length and intend on having these set aside and then defending the original PCNs. 

I have written my witness statement and draft order to go with the applications. I was hoping someone could read over this and make sure there isn't anything vital I am missing please?

I am looking at getting these sent tomorrow, as in the last correspondence they were threatening bailiffs if I didn't pay up in 14 days. Additionally, I have written to my MP, who wanted copies of the letters I had received and said he will investigate this further but I can't wait for this alone due to bailiff threats. 

WITNESS STATEMENT

I am XXXX and I am the defendant in this matter. This is my supporting statement to my application dated 25 April 2022 requesting to:

a. Set aside the default judgment dated 21 May 2018 as it was not properly served at my current address.

b. Order for the original claim to be dismissed.

c. Order for the claimant to pay the defendant £275 as reimbursement for the set aside fee.

DEFAULT JUDGMENT

1.1. I was the registered keeper of the vehicle at the time of the alleged offence.

1.2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on 21 May 2018. I am aware that the Claimant is Civil Enforcement Ltd, and that the assumed claim is in respect of an unpaid Parking Charge Notice from the 09 June 2018.

1.3. The claim form was served to a previous address, and I thus was not aware of the Default Judgement until 09 April 2022 following a notification of a Notice of Debt Recovery from DCBL.

I moved to my new address on 23 August 2017. In support of this I have provided a copy of a letter from my mortgage provider and a utility bill.

1.4. In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

1.4.2 I discovered a CCJ was lodged onto my credit file on the 9th April 2022.

1.4.3 On 11th April I contacted the County Court Business Centre to obtain relevant information relating to this default judgement.

1.4.4 On 22nd April 2022 I submitted my case in order to set-aside this judgement and fairly present my case.

1.5. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim.

1.6. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The claimant did not take reasonable steps to ascertain the address of my current residence despite having some 11 months to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgement.

1.6.2 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.

1.6.3 The defendant was 'there to be found' for the sake of a 29 pence bulk Experian trace or similar very inexpensive and immediate credit reference agency address check. If the claimant had used the address details from a credit reference agency address check, I would have been notified of this judgement and could have taken action to prevent it.

1.6.4 I updated DVLA promptly, after moving address on 23 August 2017.

1.7 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 no 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 XXXXX.

1.8 According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. 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.” Furtherance to points raised in 1.3 above.

1.9 Considering the above I was unable to defend this claim. I believe that the Default Judgment against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fee of £275 from the claimant should this request be successful.

1.10 In the alternative, CPR 13.3 applies and there are very good reasons to set aside this exaggerated claim, which includes a disproportionate and indeed, false 'debt recovery' sum.  In fact, no debt recovery occurred nor cost the claimant any money whatsoever, in addition to the parking charge.  The Government has described the false fixed 'fee' of £70 as 'designed to extort money from motorists' in the new statutory Code of Practice this February and has banned it.  The Defendant has good prospects of defending a claim, if served with one, but has seen no evidence, basis nor particulars of claim and the Claimant should be required to file afresh, if they believe they have a cause of action.

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signed _________

 

 

DRAFT ORDER

 

UPON reading the defendant’s application dated 25 April 2022

 

IT IS ORDERED that:

 

1. The default judgment dated 21 May 2018 be set aside.

 

2. The claim struck out as the claim form having not been served within 4 months of issue

 

3. The Claimant do pay the Defendants costs of this application of £275 on an indemnity basis.

Is there anything I am missing that I need to send? I plan to send this on one document along with the application. Do I mention CEL are that thick and served 5 CCJs on me, without any correspondence from myself they didn't look hard enough for me and should have had an awareness I wasn't at the address due to no response? I understand each CCJ will be looked at separately

Any advice is appreciated, thank you so much 

Coupon-mad

Very good.

I would reference all the other CCJs, cross referencing all five claim numbers in one of the first paragraphs.

And describe the filing of five separate claims for factually-duplicated parking charges as wholly unreasonable and designed to increase costs, in that this has cost you a hugely disproportionate £275 x 5 in court fees to unpick and should have been brought as one claim to the right address.  Talk about Henderson v Henderson and cause of action estoppel (search the forum) and ask the court to arrange a single hearing.

 Do I mention CEL are that thick and served 5 CCJs on me, without any correspondence from myself they didn't look hard enough for me and should have had an awareness I wasn't at the address due to no response?

Yes.  But it's not thick, it seems deliberate, IMHO.

CEL are without doubt seen as the most common cause of CCJs to wrong addresses and we've seen no evidence of them bothering to make any address checks, nor to consolidate PCNs into a single claim.  It's a clear abuse of the court process that makes us really angry.

They should have brought their whole case as ONE claim and they should have checked the address before filing the claim (single claim). This is required under the Civil Procedure rules and BPA CoP 23.1c (version from 2018 below):

https://www.britishparking.co.uk/write/Documents/AOS/BPA_AOS_code_of_practice_version_7_January_2018.pdf

23.1c isn't well worded but means they are expected to take reasonable steps to check, and certainly if someone has not responded then there is reason to believe the person no longer resides there.  DVLA database addresses are particularly unreliable for many reasons and can never be presumed to be the last known address where a defendant still lives.

It really does only cost from 29 pence to do bulk Experian soft checks for alternative addresses and contact details.  I told the Government that in one of my submissions to the Public Consultations in 2021.

The wording in the new statutory CoP is better than the BPA CoP as regards checking addresses and they went a step further and will in future require PPCs to re-issue PCNs from scratch (yep, starting again and offering appeal) if a new address is traced/discovered.  Quite right too.

Johnersh

At 1.2, that possibly should read 2017. So you moved some 2 months after the ppc issued a PCN. Does that sound right?

What happened to the correspondence about that? 

The address the ppc obtained was your current address and they issued within the year.

I still think they ought to check, but this is not a gap of 3-4 years. I wouldn't assume the set aside is mandatory.

Finally I try not to tell the judge what to do. There's a difference between taking a judge to the different sections of the cpr as compares with telling him or her what to order. 

1505grandad

A heads-up:-

"DEFAULT JUDGMENT"  -  is the correct spelling of "Judgment" in this context however you have numerous others that contain an erroneous middle "e". Suggest you are at least consistent.

Le_Kirk

Be prepared to explain why the DVLA did not have your up-to-date address, which is the only one that any PPC can use, at least initially.  It might well be that the parking event coincided with or was just before you moved and informed DVLA via your V5C as you have to do that AND your driving licence.

ginlover92

Thank you for all your advice. I have made the amendments and intend to send the five applications tomorrow. 

Just to note relating to cause of action estoppel - the PCNs were in the same car park but on different dates - does this matter and will this affect the points made relating to this and requesting the court for one single hearing?

Here is my final witness statement 

WITNESS STATEMENT

I am XXX and I am the defendant in this matter. This is my supporting statement to my application dated 04 May 2022 requesting to:

a. Set aside the default judgment dated 21 May 2018 as it was not properly served at my current address.

b. Order for the original claim to be dismissed.

c. Order for the claimant to pay the defendant £275 as reimbursement for the set aside fee.

d. I also reference a further four separate claims for default judgments XX, XX, XX and XX in which I have made separate N255 applications to the court, as they too were not properly served at my current address, all issued by the same claimant for substantially similar particulars of claim.

e. I politely request the court for one single hearing for all the above claims.

DEFAULT JUDGMENT

1.1. I was the registered keeper of the vehicle at the time of the alleged offence.

1.2. I understand that the Claimant obtained a Default Judgment against me as the Defendant on 21 May 2018. I am aware that the Claimant is Civil Enforcement Ltd, and that the assumed claim is in respect of an unpaid Parking Charge Notice from the 09 June 2017.

1.3. The claim form was served to a previous address, and I thus was not aware of the Default Judgment until 09 April 2022 following a notification of a Notice of Debt Recovery from DCBL.

I moved to my new address on 25 September 2017. In support of this I have provided a copy of a letter from my mortgage provider and a utility bill.

1.4. In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

1.4.2 I discovered a CCJ was lodged onto my credit file on the 9th April 2022.

1.4.3 On 11th April I contacted the County Court Business Centre to obtain relevant information relating to this default judgment.

1.4.4 On 04th May 2022 I submitted my case in order to set-aside this judgment and fairly present my case.

1.5. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held the Defendant’s correct contact details at the time of the claim.

1.6. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address that the Defendant no longer resides. The claimant did not take reasonable steps to ascertain the address of my current residence despite having some nine months to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgment.

1.6.2 I also refer to 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.

1.6.3 The defendant was 'there to be found' for the sake of a 29 pence bulk Experian trace or similar very inexpensive and immediate credit reference agency address check. If the claimant had used the address details from a credit reference agency address check, I would have been notified of this judgment and could have acted to prevent it.

1.6.4 I updated DVLA promptly, after moving address on 25 September 2017.

1.7 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 no 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 XXXX.

1.8 The Claimant has issued a further 4 claims, xx, xx, xx and xx against the Defendant with substantially identical particulars, for the same cause of action. The issuing of five separate claims, by the same Claimant and for essentially the same cause of action, is an abuse of the civil litigation process. 

1.8.1 In Henderson -v- Henderson [1843] 67 ER 313 the court noted the following:
(i) when a matter becomes subject to litigation, the parties are required to advance their whole case;
(ii) the Court will not permit the same parties to re-open the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence, or error;
(iii) this bar applies to all matters, both those on which the Court determined in the original litigation and those which would have been advanced if the party in question had exercised ''reasonable diligence''.

In Arnold v National Westminster Bank plc [1991] 3 All ER 41 the court noted that cause of action estoppel “…applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties or their privies and having involved the same subject matter.”  I politely request the court to consolidate the further four claims to be determined all together at one hearing, and to apply appropriate sanctions against the Claimant for filing five single claims.

1.8.2 The filing of five separate claims for duplicated parking charges is wholly unreasonable, and has cost the Defendant a hugely disproportionate £1375. The Claimant should have brought their whole case as one single claim and should have checked the address before filing the claim as required under the Civil Procedure Rules and BPA CoP 23.1c. 

1.9 According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. 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.” Furtherance to points raised in 1.3 above.

1.10 Considering the above I was unable to defend this claim. I believe that the Default Judgment against me was issued incorrectly and thus should be set aside and I ask the Court to kindly consider the reimbursement of the fees of £275 from the claimant should this request be successful, or a total of £1375 should the Court agree to one single hearing for all five claims.

1.11 In the alternative, CPR 13.3 applies and there are very good reasons to set aside this exaggerated claim, which includes a disproportionate and indeed, false 'debt recovery' sum.  In fact, no debt recovery occurred nor cost the claimant any money whatsoever, in addition to the parking charge.  The Government has described the false fixed 'fee' of £70 as 'designed to extort money from motorists' in the new statutory Code of Practice this February and has banned it.  The Defendant has good prospects of defending a claim, if served with one, but has seen no evidence, basis nor particulars of claim and the Claimant should be required to file afresh, if they believe they have a cause of action.

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

Signed _________

 

 

DRAFT ORDER

 

UPON reading the defendant’s application dated 4 May 2022

 

IT IS ORDERED that:

 

1. The default judgment dated 21 May 2018 be set aside.

 

2. The claim struck out as the claim form having not been served within 4 months of issue

 

3. The Claimant do pay the Defendants costs of this application of £275 on an indemnity basis. Should the Court agree for one hearing relating to the five separate claims, the Claimant to pay the Defendants costs of the further four claims, totalling £1375 on an indemnity basis.

Coupon-mad

The PCNs are always going to be from different dates, we knew that when we advised you to use the Henderson v Henderson argument.

You must do a separate application for each CCJ, shockingly, at £275 a pop. Let's hope they are held unreasonable and ordered to pay those fees back!

ginlover92

Thanks yes I have done separate applications for each - it does feel like a huge risk at the minute with the costs i have been having my doubts whether to just pay them off instead as if the court don't agree to pay my costs I'm out of pocket by a huge amount

Umkomaas

ginlover92 said:

Thanks yes I have done separate applications for each - it does feel like a huge risk at the minute with the costs i have been having my doubts whether to just pay them off instead as if the court don't agree to pay my costs I'm out of pocket by a huge amount

I'm not sure whether you're aware that paying them off won't remedy your shot credit rating. 

ginlover92

Yes I do completely understand that it's just if I don't get the set asides I'm down £1400 and will still need to pay the CCJs off

Coupon-mad

We would be absolutely astonished if you don't get the set asides, given they've deliberately split the PCNs across five claims and caused you to pay out £1400 in fees up front (through no fault of yours) rather than a single £275 fee to set aside what should have been one claim (Henderson v Henderson applies).

Reference all the other claim numbers on each N244 and ask for a single hearing to save the court and all parties time, and ask for those fees to be refunded by the Claimant, whose unreasonable conduct also included the fundamental failure to spend just 29pence on a bulk soft search to check your last known address.

They can't just use DVLA data years later under a presumption it's still the correct address.  The Trade Body Codes of Practice say as much.

If you copy the example by Jack5656 you are also saying the claims are 'dead' for want of service within 4 months, so if the Judge is with you on that too, it nukes the lot of them and if the C thinks they have a case, they can serve a fresh single claim properly.