Help CCJ PCN Set Aside - Have I left it too late?

popiu44

Yes, both claims sent to wrong address. 

The most recent trace they did is attached to this post. The other one is the same... just dated before. 

 Yes, I had swapped over most of my bank accounts, credit cards, bills, mortgage, council tax but possibly not the electoral register and one bank account. 

When I filed the N244 I also sent mortgage statement, driving licence and council tax bill all with new address many months before they issued proceedings. 

I think my argument will need to be that I was there to be found but their trace wasn't any good. 

The time between my finding out about the CCJs and making my N244 Application is 28 days.

Castle

I see that under the "Status" heading the phrase "Notice of Allocation received-small claims track" is used.

That would only be appropriate if the original claim had been defended.

Coupon-mad

Good spot. @Castle!  So, that is the legal firm's own internal notes from NOW.

That is not a copy of any Trace.  That's just their notes.  Could have been typed in yesterday.

To the OP. send a SAR by email to Equifax for s full copy of who asked for a soft trace and when, and what exactly was returned.

Umkomaas

and shat exactly was returned.

😳 😂
@Coupon-mad - Freudian slip?

Coupon-mad

Whoops! Using my phone. Can't type on a phone!!

Umkomaas

Coupon-mad said:

Whoops! Using my phone. Can't type on a phone!!

I struggle to even correctly type a short text message on my mobile. I'm always aghast when people come here with only a phone on which to construct and submit their Defence and Witness Statement. 😮

popiu44

So, I have 2 hearings on the 19th.

BW Legal have put in a bill for about £744

I looked at my draft order and noticed I had put:

IT IS ORDERED that:

1. The default judgement dated 8th February 2022 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.

Given the mention of 'indemnity basis' - do I need to change this as I'm exposing myself to these high costs?

popiu44

I'm getting a bit worried now as it's feeling a bit like info overload. If you could just make very brief comments to let me know if I'm doing the right thing or have missed something really obvious. I'll lay out what I have - it's not much.


BELOW IS MY WITNESS STATEMENT

WITNESS STATEMENT OF DEFENDANT

1.     I am xxx xxx and I am the Defendant against whom this claim is made. The facts are true to the best of my belief and my account has been prepared based upon my own knowledge.

2.     This is my supporting statement to my application dated 27 April 2022 requesting to:

a. Set aside the default judgement dated 8th February 2022 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 Judgement

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

4.     I understand that the Claimant obtained a Default Judgment against me as the Defendant on 8th February 2022 . I am aware that the Claimant is BW Legal Services Limited and that the assumed claim is in respect of an unpaid Parking Charge Notice.

5.     The claim form was served to a previous address and I thus was not aware of the Default Judgment until 29 March 2022 following a search of my credit file after I was unable to obtain credit from the bank.

6.     The address on the claim is xxx. I moved to my new address on 22 January 2021. In support of this please see my mortgage statement, council tax direct debit instruction, utility bill and driving licence (Annex A) (note: DVLA were informed of my new address for my licence and V5 around the time I moved to my new address at the start of 2021).

7.   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.

8.   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 12 months to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgement.

9.   Under CPR 13.2 The court must set aside a judgement entered under part 12 if judgement was wrongly entered.  Given that CPR 6.9 (3) was not met, CPR 13.2 applies and the CCJ should be set aside.

10.   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. I would then have been notified of this judgement and could have taken action to prevent it.

11.   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 XXX

12.   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.

13.   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.

14.   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.

15.   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 £100 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. 

16.   Considering the above I was unable to defend this claim. I believe that the Default Judgement 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.

Statement of Truth

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 & dated

XXX

 Annex A

mortgage statement, council tax direct debit instruction, utility bill and DVLA driving licence

popiu44

You can see what I have done so far with the witness statement and draft order above.

NOW my plan is to attach a further witness statement:

-----------------------------------------------------------------------------

CASE no etc etc. 

BELOW IS MY ADDITIONAL WITNESS STATEMENT (ws2)

ADDITIONAL WITNESS STATEMENT (ws2) OF DEFENDANT

1.     I am xxx xxx and I am the Defendant against whom this claim is made. The facts are true to the best of my belief and my account has been prepared based upon my own knowledge.

2.     This is my supporting statement to my application dated 27 April 2022 requesting to:

a. Set aside the default judgement dated 8th February 2022 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.

CASE LAW

3. 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 XXXXXX.

4. 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.

 5. 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.

Statment of truth

------------------------------------------------------------------

popiu44

My New draft order not mentioning indemnity basis:

IT IS ORDERED that:

1. The default judgement dated 8th February 2022 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.