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

popiu44

If someone has a link for the Defence that would be great - a link rather than a thread would be more useful - I have already tried to search Template Defence but that's pretty useless.

The more I read the more head spins.

popiu44

Ok, I think this might be the  Template Defence

popiu44

Here goes... plan for pre-hearing bundle

1)application and original  Witness Statement
2)Draft Order (amended without the words Indemnity Basis)
3)ws2  - witness statement 2 skeleton argument which gives some case law (Boxwood/Vinos)
4)Defence as per Template Defence amended as necessary. 
5) costs order based on unreasonable conduct

popiu44

Assuming my pre-hearing bundle is correct above, I will be relying on the 4 month dead argument.

The basis of this legal argument seems to be that the claimant did not do a trace so therefore the service is ineffective and dead, right?

But I notice that both the solicitors I'm up against are saying they have performed traces - although none are providing hard evidence it seems. 

If the other side has evidence they performed a trace, does my argument fail or can it be argued that they should have done more because I was there to be found. I had taken a mortgage in the new address with banks and bills etc going to the new address so I could have been found. Will the claimants claim they fulfilled their duty and say the service is good? Anu thoughts or am I missing something?

popiu44

I feel like I could lose on the point above if they claim they have done traces and I might lose the 4 month dead argument...

THEN
If the 4 month dead argument is lost:

I feel like they will also say I have no defence to the claim OR I waited 28 days to file the application.

popiu44

Please, if you would like to refer me to a document, please try to hyperlink to the document as it's quite hard to put a finger on the correct information otherwise.

Coupon-mad

popiu44 said:

Here goes... plan for pre-hearing bundle

1)application and original  Witness Statement
2)Draft Order (amended without the words Indemnity Basis)
3)ws2  - witness statement 2 skeleton argument which gives some case law (Boxwood/Vinos)
4)Defence as per Template Defence amended as necessary. 
5) costs order based on unreasonable conduct

That's all fine now - good work and research - except a skelly is not a second WS.

It's a skelly, not a statement, not signed (but can be dated).  As discussed in paulr23's thread (which I already gave you a username hyperlink to) you just write out the legal argument in the third person, and attach the 2 transcripts. 

Your '4 months dead' argument looks solid to me. It is a fact they failed to serve the claim to the last known address.  Thus, as the 2 authorities appended to the skelly show, the court cannot intervene and the claim is dead. If the Claimant thinks that they still have a cause of action, it's open to them to start afresh using the right address, that they had all along.

Not sure you've shown us your intended additions to para 2 and 3 of the template defence?

We can take a look and help. It's perfectly OK to say the Defendant does not know enough about the event to respond in an informed way because no claim was served, but understands the case seems to be about xxxx location in (year) and any breach of contract is denied. If you appealed it way back when, then say that too and add whatever your reasoning was (crap signs?)!

The rest of the template defence covers every other point you need, going forward, IF the Judge doesn't dismiss the entire claim. So it is your safety net.

Please, if you would like to refer me to a document, please try to hyperlink to the document as it's quite hard to put a finger on the correct information otherwise.

Sorry but we almost never do, because over a decade of experience tells us that NOT spoon-feeding links on this board helps posters so much more.

We push and stretch newbies' comfort zone, encouraging you all to do research and to learn how to hop round the forum to find what we tell you to go find. Certainly a (pinned) Announcement 'sticky thread' like the Template Defence thread, that always sits at the top of the parking board for all posters to see (on page one every day) is not something we ever want to just link.

The reason is, if people have not discovered yet, half way through their thread, how to hop with one click to page one, they will need to learn it because everyone needs to be confident on how to use the resources here and where to find them.

Not knowing where the Announcement threads are and how to find them again with one click would be a huge problem for you later.

So we just don't do it that way...but my signature does already tell every single poster where the link is (on any page) to get you straight back to page one and what it looks like. You've discovered that breadcrumb trail hyperlink, yes?  Easy when you know how - and we need to know you know how.

popiu44

IN THE COUNTY COURT

Claim No.:  xxxxxx

Between

Full name of parking firm Ltd, not the solicitor!

(Claimant) 

- and -  

Defendant’s name from N1 claim (can’t be changed to driver now)                        

 (Defendant)

_________________

DEFENCE

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question.

The Defendant does not know who was driving the vehicle at the time of the penalty notice.

3. It is not known why the driver was at the location of the penalty notice as the identity of the driver is unknown.  

All signs were obscured by darkness and rain at the time of the penalty notice.

popiu44

IN THE COUNTY COURT

Claim No.:  xxx

Between

X(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 I did not give an address to the claimant at which I could be served, primarily because I was not asked, CPR 6.9 applies. CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence."

 1.2 The defendant was not aware of the CCJ applied following a credit check in 29 March 2022, the letters regarding the claim was sent to an incorrect addres  which the defendant moved out from in January 2021, the defendants details with DVLA were correct at all times, the defendant had all bills, DVLA documents, mortgage and council tax at the new address since January 2021 so was there to be found.

1.3 Furthermore to this, any letters since the defendant moved from the address where the claim was sent to were marked as not known at this address and returned to sender, which the claimant would have been made aware of as they would have received returned mail, but still decided to take action instead of using the defendants last known residence, which would have been correct.

 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 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 (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.” The claimant held more than one possible address and could and should have sent their LBC to both, to try to engage with me and not just rely on any old address that popped up in my credit history

4 Given that the claimant knew my last known address which they obtained from the DVLA, I would conclude that a set aside is mandatory under CPR 13.2 due to the claimants incorrect service to an inaccurate address which they would have been made aware of due to receiving returned mail

popiu44

DRAFT COSTS ORDER

 

UPON reading the defendant’s application dated 27 April 2022.

 

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

4. If the Claimant has been deemed to have acted unreasonably, the claimant do pay 15 hours at £19 per hour for the defendant who has acted as a litigant in person.