Help with a CCJ Set Aside please?

Mars28 · 11 July 2022 at 4:58PM

Hi, I’d be very grateful for some advice please. I’ve found a default CCJ on my credit record from Mar 22 when applying for a credit agreement. I’ve since spoken to CCBC (7 July), got a report from TrustOnline, and spent the weekend researching. This is what I know so far:

Default CCJ against me beginning of Mar 22. Claimant was CP Plus Ltd T/A Group Nexus, represented by DCBL. Claim relates to a PCN issued 19 Mar 20, which I assume is for overstaying the 2 hour free period. We use this car park regularly, it’s a fairly big big commercial park.

I’ve been reading many of the threads and links you have been supporting, which has been truly impressive! So much help already so thank you, and I am now in the process of adapting a witness statement and default judgment to support my N244.

Please could I get your view on whether you think it’s worth me proceeding? I don’t think I have much choice but to fight now anyway as the impact is extremely significant, and the frustration of taking a blow like this when I just didn’t know there was a court case makes it even worse!

From what I have read so far, I think my witness statement will major on:

1. I didn’t receive a LBC or any other court letters.

No Court letters were received before 2 Feb and any letters delivered 3 Feb until the court date would not have been seen as I did not have access to the property (keys handed back early on 3 Feb). Any letters received 3 Feb onwards would have been stuck in an empty house, and most likely returned in bulk by the contractors who manage the property (or thrown away if they weren’t being professional), some time later.
Whilst we still had the lease on the CCJ addressed property until 2 Feb, our primary address from 17 Nov 21 was different - this is when we completed our house purchase, which is easily found on credit reports, bank statements etc. A trace would definitely have shown this.
Concern 1 - I didn’t update my V5 until 19 Mar. An oversight that was corrected when I realised.
Concern 2 - I haven’t corresponded with anyone about this PCN. I just wasn’t tracking it. From what I have read, this might be a positive as they had no reason to believe I lived at the address they may have sent any PCNs/correspondence to (i’m trying to confirm what and when any letters were sent by SAR). But, assuming hey say they did write to the CCJ address, I’m also concerned that a Judge might doubt me not responding to any PCNs and won’t care for circumstances (chaos) such as busy household with young children, start of lock down home-schooling, me working away a lot for short and long periods etc.

2. The Claimant's Code of Practice requires them to ensure the letters are reaching the person if intending to litigate more than 12 months after a parking event.

24.1c 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.

I held more than one possible address and the claimant could and should have sent their LBC to both, to try to engage with me, and not just rely on any old address that they had on file. (Thanks C-M for this)

3. The Particulars of Claim says “The Driver agreed to pay within 28 days but did not” which is certainly not true. (Not sure if this is relevant)

4. 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.

5. Set aside application was made promptly - I only found out about the CCJ on 7 Jul when it showed on my credit file as I was enquiring about why I had been refused a very small amount of credit. (My credit record is otherwise flawless). (I’m aiming to submit this NLT Monday 18 Jul, earlier if I can, as I note it was advised to be within 2 weeks of finding out about a CCJ)

Realistic Prospect of Defense

I’ve seen numerous arguments people have used to defend a claim, but until I have the particulars of the PCN then I can’t work out which ones might apply to me.

As I don’t have a PCNs I’m unable to make much of an argument. I’m planning on submitting a SAR this evening in-line with the pre-action stage of newbies thread. I assume this still applies for my situation as it’s the only way to know what my defence might be. I’ve taken a paragraph from another thread anyway which I think covers me for not having any details of a defence for this element of the N244 consideration, as I’m not hopefull that the claimant will respond quickly.

Questions:

I’m the registered keeper. Would it change anything if I wasn’t the driver?
Should I write to the claimant to ask for consent to set aside? I believe I need to do this, even if I decide to request a contested set-aside anyway. It also feels like I should do it because I don’t know what my defence is yet and don’t know if it will give the judge any discretionary ground to set the judgment aside.
Will it matter if I submit a N244 without much evidence to provide an argument for a reasonable defence? (until I have a response to my SAR).

Thanks for any help you might be able to give me. I plan to tidy up my WS and DO this evening and see how it’s looking. Thanks again for any help

Coupon-mad · 11 July 2022 at 5:25PM

"The Claimant's Code of Practice requires them to ensure the letters are reaching the person if intending to litigate more than 12 months after a parking event. "

Nope. That's from the IPC Code of Practice. CP Plus are in the BPA whose wording is a bit better and doesn't mention 12 months.

"The Particulars of Claim says “The Driver agreed to pay within 28 days but did not” which is certainly not true. (Not sure if this is relevant)"

It's not relevant at all. Remove it!

I encourage you to read the CCJ set aside threads by @Jack5656 and @eb23456 and @msx999 and also do a skeleton argument before the hearing, attaching the legal authorities as seen today in the thread by @paulr23

Go read those. They cover it all.

I’m the registered keeper. Would it change anything if I wasn’t the driver?

ANSWER:
Yes and this will form part of the facts of defence. You don't know which driver in the family visited that day and nor can you discount that it was two drivers within 24 hours (2 visits captured as one long visit).
You have seen no evidence whatsoever, and you are well aware from online resources, that CP Plus choose never to use the 'keeper liability' provision of the POFA 2012, schedule 4. Thus, without evidence of the driver (in photos) there can be no lawful presumption that the keeper was driving (the only basis open to CP Plus outwith the POFA) and in fact, on the balance of probabilities it was not the Defendant, given there were X drivers in the family at the material time and you have no recollection and were less likely to be shopping than other drivers in the family.
Should I write to the claimant to ask for consent to set aside? I believe I need to do this, even if I decide to request a contested set-aside anyway. It also feels like I should do it because I don’t know what my defence is yet and don’t know if it will give the judge any discretionary ground to set the judgment aside.
ANSWER
Yes it looks better to do so. Make it clear that the option of a consent order that they'd be required to draw up to remove the abusive CCJ and start afresh, is time-bound, and if they refuse then you will be applying by 31st July (latest) 'without consent' and pursuing your costs in full and defending the claim.
But make it clear you are refusing to pay the PCN so this includes no offer, but has value to them because they are about to be faced with an expensive costs claim of at least £275 plus hearing attendance costs, to reimburse you for the CCJ set aside N244 application fee.
This is because they failed to do the 'soft trace' that their BPA Code requires and the failed service of the Claim and failure to take the reasonable steps required under the CPRs, was due to their lax and negligent conduct alone.
Will it matter if I submit a N244 without much evidence to provide an argument for a reasonable defence? (until I have a response to my SAR).
ANSWER
That's fine.
You MUST demand (now, at these early stages) that they take note if the address failure and rectify your data. Insist that your new address is used from now on, and that they must erase the old one and so must DCBLegal.

Mars28 · 11 July 2022 at 8:25PM

Thanks very much for your response, I've been reading through and taking notes - so much good stuff in there.

SAR drafted which I'll e-mail first thing tomorrow, and will also write to the claimant separately suggest that they remove the CCJ, for their benefit. Thanks again for the advice.

Mars28 · 13 July 2022 at 5:49PM

Thanks again for you're help, SAR submitted, un surprisingly they asked for more info which I partially supplied - I didn't see why I needed to provide additional detail about the vehicle or incident.

Meant to send the letter to CP Plus today but apparently problems are like buses, they all come at once, so haven't had any time. Anyway, my letter is below and grateful for any advice, but otherwise I plan to send it first thing tomorrow. Thanks again,

XXX

Address XX July 22

Dear Sir or Madame,

Reference the CCJ obtained against me by yourselves (represented by DCB Legal) on Date. The case reference is: XXXX.

This CCJ was filed against an incorrect address (address) which meant any letters you sent were not received, and thus resulted in the inability to mount a defence.

It is quite clear that you failed to conduct the soft trace which the BPA Code of Practice requires of you. BPA Approved Operator Scheme Code of Practice states:

“32.1b 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 endeavors to ensure that the person being written to is the correct party.”

This failed service of the Claim resulted from your failure to adhere to the BPA code of practice, and failure to take the reasonable steps required under the CPRs, in particular Rule of Service 6.9, and is due to your negligent conduct alone.

I offer you the option to draw up and submit a consent order to remove this CJJ and start afresh. This option expires 27 Jul 22, at which point I will submit a N244 for a hearing, and will apply for a mandatory set aside without consent and ask the court to dismiss the claim and award all costs under CPR 13.2.

No offer to pay the PCN is included, and as the claim was not properly served within 4 months of being filed, it is therefore dead and cannot be resurrected by any Order of the Court. However, swiftly submitting the consent order has value to you, as it avoids the costs of attending a hearing and being liable for an expensive costs claim for at least £275 plus hearing attendance costs, to reimburse me for the N244 application fee. The way would then be clear for CP Plus to issue the PCN and letters again, and if not resolved on appeal, a fresh claim would not be so encumbered.

You must take note of the address failure and rectify your data immediately to my correct address: Address. You, and your legal teams (DCB Legal) must use this address from now on and erase the old one (Address).

Yours,

Name

I've picked a deadline of 27 July as that's 10 working days (two weeks) to respond, and would mean my own set aside application would be submitted 3 weeks after realisation of the CCJ's existence. Seem fair? Or should I be harsher/more lenient?

Thanks again for any advice.

Coupon-mad · 13 July 2022 at 9:39PM

I think that's fair. Good email.

Madam doesn't have an 'e' on the end.

And typo here:

"I offer you the option to draw up and submit a consent order to remove this CJJ"

Mars28 · 30 July 2022 at 10:38PM

So, as expected, nothing from parking firm in response to my letter and still waiting for SAR to be returned. I've pulled together a WS and DO, almost entirely based on the recommended threads which I've adapted to be applicable for me. I'd be really grateful if you could offer and comments before I submit them with my N244 please? Hopefully I've managed to get all the relevant points in correctly.

DRAFT ORDER:

Upon reading the defendant’s application dated XXXXX

It is ordered that:

1. The judgment dated XXX March 2022 be set aside

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

3. The claimant to pay the Defendant’s costs of this application of £275 on an indemnity basis

WITNESS STATEMENT:

1. I am XXXX and the defendant in this matter. The facts are true to the best of my belief and my account has been prepared based upon my knowledge.

2. This is my supporting statement to my application dated 31 Jul 22 requesting to:

a. Set aside the default judgment dated XX Mar 22 as it was not served properly at my current address, and as I received no correspondence I was unable to defend myself.

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

1.0. I was the registered keeper of the vehicle at the time of the alleged parking event.

1.1. I understand that the Claimant obtained a Default County Court Judgment (CCJ) against me as the Defendant on XX Mar 22. I am aware that the Claimant is CP Plus Ltd T/A Group Nexus and was represented by DCB Legal, and that the assumed claim is in respect of an unpaid Parking Charge Notice from XXX Mar 20, I contest this charge for the reasons below which will form my draft defence.

1.2.0 The claim form was not served at my current address and thus I was not aware of the Default Judgment until 7 July 22, when following a refusal of being authorised for a low value credit agreement, I reviewed my credit file to understand why and found this CCJ dated XX Mar 22.

1.2.1 The claim form was submitted to an old address; Address 1. I moved from this address on X Nov 2021 and have since lived at Address 2. Evidence of this is provided by council tax bill (Annex A), utility bill (Annex and mortgage letter (Annex C).

1.3.0 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;

1.3.1 Having discovered the County Court Judgment (CCJ) was lodged on my credit file on 7 July 22, I immediately obtained a report from Trust Online and called the Northampton County Court Business Center to find out the particulars of the CCJ.

1.3.2. As I have no details of the PCN or claim against me, I submitted a Subject Access Request (SAR) to Group Nexus on 12 Jul 22, for which I am still awaiting a full response

1.3.3. After seeking further advice, I wrote to Group Nexus on 14 July 22, pointing out that they had not served the claim form correctly and highlighted where they had failed to conduct any due diligence in serving the claim form. I offered them an opportunity to rectify this by drawing up and submitting a consent order to remove this CCJ by 30 Jul 22. However they have not responded other than to acknowledge receipt of my letter.

1.3.4. Having had no response from CP Plus (T/A Group Nexus), or a representative on their behalf, to my letter dated 14 July, I submitted my case to the Courts on 31 Jul 22 in order to set-aside this judgment and fairly present my case.

1.4. No paperwork has ever been received regarding this CCJ, and if I had received it I would have acted promptly in addressing the matter, as I am doing now.

1.5.0. I believe the Claimant has behaved unreasonably in pursuing a claim without ensuring they held the Defendant’s correct, readily available, contact details at the time of the claim.

1.5.1. The BPA Approved Operator Code of Practice (Version 7, January 2018) states that 'Before serving a Letter Before Claim and prior to issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavors to ensure that the person being written to is the correct party.’ [23.1c]. This requirement is expanded on and better explained by the Government in the new Code of Practice which is currently temporarily delayed but says ‘If a driver, keeper or hire company does not respond to a notice of parking charge or subsequent correspondence, or a parking charge has not been paid in full, reasonable endeavors - including contacting credit reference agencies to undertake a ‘soft trace’ - must be undertaken by the parking operator and/or its appointed debt recovery agent to establish the correct correspondence details of the driver, keeper or hire company before commencing enforcement action. Where a new address is discovered the notice of parking charge should be re-issued at the original rate but with a further 28 days from service for a response (payment or appeal).’ [Section 10]

1.5.2. On that basis, I believe the Claimant has not adhered to Civil Procedural Rules (CPR) 6.9 (3) as they failed to take any reasonable steps to ascertain the Defendant’s correct address and simply used an old address where the Defendant did not reside. This has led to the claim being incorrectly served to an old address and an irregular judgment.

1.5.3. 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.

1.5.4 The Defendant’s Credit File registered the current address and mortgage address for Address starting on XX Nov. Therefore, the Defendant was 'there to be found' for the sake of a 29 pence bulk Experian trace or similar inexpensive and immediate credit reference agency address check. The Defendant’s credit file shows no traces instigated by the Claimant ahead of Service of the Claim Form (Annex D), or at any time, and this failure to carry out proper checks to establish the right address for service before filing a claim not only breaches the CPRs, but also the pre-action protocol for debt claims and the British Parking Association Code of Practice. The Claimant acted wholly unreasonably by negligently or deliberately disregarding all rules and caused the claim to be improperly served. I.e. They failed to serve it at all.

1.6.0. 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 Address 2.

1.6.1. 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.

1.6.2. 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.

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

2.1. The Government is seeking to address poor practice and behavior of some parking operators, which has led to a Parking (Code of Practice) Act 2019 being introduced by Sir Greg Knight MP. This Act seeks to address the inherent unfairness of Private Parking firms who often adopt a “labyrinth system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees”

2.2 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."

2.3. 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 1.4 above.

3.0. 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 original 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.

4.0. Considering the above and that 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 and any associated costs 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.

Coupon-mad · 30 July 2022 at 11:32PM

A good start - but have a look at the second version worked on tonight by @GlassRoof36 as theirs covers a bit more.

Mars28 · 31 July 2022 at 5:21PM

Thanks very much Coupon-mad and that's a great WS to refer to. My updated version is:

CP Plus Ltd(Claimant)

V

XXXXXXX (Defendant)

WITNESS STATEMENT

I am XXXXXX and the defendant against whom this claim is made. The facts below are true to the best of my belief and my account has been prepared based upon my knowledge.

This is my supporting statement to my application dated XXXXXX requesting:

a. Mandatory set aside for the default judgment dated XX Mar 22 as it was served using an old address, pursuant to CPR 13.2, and as I received no correspondence I was unable to defend myself.

b. An order for the original claim to be dismissed as it was not served within 4 months of the issue, pursuant to CPR 7.5, and the Claimant having failed to apply for an extension, pursuant to CPR 7.6.

c. An order for the claimant to pay the defendant £275 as reimbursement for the set aside fee, plus the cost to attend the hearing and relevant litigation in person costs.

DEFAULT JUDGMENT

I was the registered keeper of the vehicle at the time of the alleged parking event.
I understand that the Claimant obtained a Default Judgment against me as the Defendant on XX Mar 22. I am aware that the Claimant is CP Plus Ltd T/A Group Nexus, and that the assumed claim is in respect of an unpaid Parking Charge Notice from XXX, I wish for the opportunity to contest this Charge Notice for the reasons outlines in my attached draft defence.
Since the claim form was not served at my current address, I was not aware of the Default Judgment until 7 July 22 following a refusal for a low value credit agreement. I then reviewed my credit file to understand why, which alerted me to the CCJ dated XXXX.
The claim form was submitted to Address 1. I moved out of this address on Nov 21 and have since lived at Address 2. Evidence of this is provided by council tax bill (Exhibit A), utility bill (Exhibit and mortgage letter (Exhibit C). Address 1 is a rental property occupied under license with my employer. Whilst I maintained infrequent access to Address 1 until Feb 22 XXX XX when my license to occupy expired, no correspondence was received before this date and Address 2 has been my main residence as shown on my credit file. Evidence of this is provided as Exhibit D. Address 2 is my own home and permanent residence.
I have not received any documentation relating to this case from the Claimant and therefore I was never able to properly challenge the Claimant’s Claim.
I was ‘there to be found’ via an inexpensive bulk credit check as I had a permanent address on my record, at xxxxxxxx. This address was registered to my bank statements, mortgage and credit file. (Exhibit E).
The claimant’s failure to take reasonable steps to ascertain the address of the Defendants current residence, having received no return correspondence from me whatsoever following their assumed multiple attempts to reach me at an old address, has led to the claim being incorrectly served to an old address and an irregular judgment, pursuant to CPR 6.9 (3). Thus they have caused the claim to be improperly served. I.e. They failed to serve it at all.

CPR 6.9 (3): “Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).”

The Claimant failed to take the reasonable and expected step of conducting a credit check (Exhibit F) to determine the Defendant’s current contact details, as shown by the absence of records of any soft traces by the Claimant ahead of Service of the Claim Form. This failure to carry out proper checks to establish the correct address for service before filing a claim not only breaches the CPRs, but also the pre-action protocol for debt claims, and the British Parking Association Code of Practice.
On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) by simply using an old address where the Defendant did not reside. The Claimant has behaved unreasonably by negligently or deliberately disregarding the rules whilst pursuing a claim against the Defendant without confirming the correct contact details at the time of the claim.
The Claimant has also failed to adhere to their own Code of Practice, The BPA Approved Operator Code of Practice (Version 7, January 2018), which states that.
'Before serving a Letter Before Claim and prior to issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavors to ensure that the person being written to is the correct party.’ [Ref para 23.1c].
This requirement for ‘reasonable endeavors’ is expanded on and better explained by the Government in the new Code of Practice which is currently temporarily delayed but states:

If a driver, keeper or hire company does not respond to a notice of parking charge or subsequent correspondence, or a parking charge has not been paid in full, reasonable endeavors - including contacting credit reference agencies to undertake a ‘soft trace’ - must be undertaken by the parking operator and/or its appointed debt recovery agent to establish the correct correspondence details of the driver, keeper or hire company before commencing enforcement action. Where a new address is discovered the notice of parking charge should be re-issued at the original rate but with a further 28 days from service for a response (payment or appeal).’ [Ref Section 10]

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.
Further to the Defendants points in paragraphs 5 to 13, I also refer to the following authorities to support that claim is defective as it was not served to a “last known address”:

HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)

b) HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012)

Additionally, CPR 13.3 also applies as there are very good reasons to set aside this claim:

The claim includes an exaggerated, disproportionate and indeed, false 'debt recovery' sum. In fact, no debt recovery occurred nor cost the claimant any money whatsoever, in addition to the original 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.
Not the driver….is this an argument if I can prove it?
Without details of the PCN it’s hard to present a defence yet.

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, pursuant with CPR 7.6.
The Defendant relies on 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.

The Defendant also relies on Vinos v Marks & Spencer plc [2001] 3 All ER 784, where 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.
The Defendant also relies on on the judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch) (see Exhibit F) 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."

The Defendant has no details of this claim, however, 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 xxxxxxxxxx.
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 I have quickly obtained the necessary information, attempted to resolve this with CP Plus Ltd and ultimately submitted the case application within 3 weeks of discovering the Default Judgment. Additional details:

On 7 July 22 I discovered the default County Court Judgment (CCJ) on my credit file. I immediately obtained a report from Trust Online and called the Northampton County Court Business Center to find out the particulars of the CCJ.
On 12 July 22 I submitted a Subject Access Request (SAR) to CP Plus to get details of the PCN and claim against me. (Exhibit G) I am still awaiting a full response.
On 14 July 22 I wrote to CP Plus to raise the issue of them not serving the claim form correctly, and highlighted where they had failed to conduct any due diligence in serving the claim form to my correct address. I offered them an opportunity to rectify this by drawing up and submitting a consent order to set aside this CCJ by 30 Jul 22. (Exhibit H) However they have not responded other than to acknowledge receipt of my letter.
On 1 August 22, having had no response to my letter dated 14 July 22 from CP Plus, I submitted my case to the Court in order to set-aside this judgment and fairly present my case.

No paperwork has ever been received regarding this CCJ, and if I had received it I would have acted promptly in addressing the matter, as I am doing now.
According to publicly available information, my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results in an unnecessary burden for individuals and the justice system across the country.
The Government is seeking to address poor practice and behavior of some parking operators, which has led to a Parking (Code of Practice) Act 2019 being introduced by Sir Greg Knight MP. This Act seeks to address the inherent unfairness of Private Parking firms who often adopt a “labyrinth system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees”
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 1.4 above.
I have also read the consultation on Default County Court Judgments by Ministry of Justice published 21 February 2018. Some key excerpts are: ‘the claimant must consider whether there is an alternative place or method by which the claim may be served’. And, ‘Department for Communities and Local Government (DCLG) is reforming parking practices and has already taken steps to tackle rogue private parking operators, including banning wheel clamping and towing. DCLG is fully aware of the concerns related to County Court Judgments that follow parking charges and is considering how they can deliver standardised practice across all parking companies, eliminating unfair charges and reducing the instances of claims where the consumer may be unaware of a parking charge being applied’. ‘Where the claimant is unable to ascertain the defendant’s current postal address, the claimant may apply to the Court for service at an alternative place. This may include service via an email address if the claimant and defendant have been in communication via those means and the Court agrees this is appropriate’.
I believe the Claimant’s practice is a clear example that parking companies’ conduct is not anymore used as a deterrent for citizens to park insensibly, majority of which are law abiding, instead an impending and instantaneous launch of legal action against most of them, leading to default Judgment by Court in 85% of the 1.1 million cases in year 2016/2017, and majority of these were parking tickets.
Considering all above I submit that the Claimant has not met the service requirements of CPR 6.9 and 7.5. respectively:

a) Service has not been effected at a valid address and,

b) For want of valid service, these proceedings have not been served within 4 months of issue.

I therefore submit that the court should set aside the judgment entered under part 12 as judgment was wrongly entered, given that CPR 6.9 (3) was not met and thus CPR 13.2 applies, requiring the CCJ to be set aside.
If there was a case that the Court might not be satisfied on above grounds, I also submit that the Court should use its discretionary powers under CPR 13.3, as there is a profound prospect of defending this claim because of several reasons (draft defence attached).
Considering the above and that I was unable to defend this claim, I respectfully request that the Court sets aside the Default Judgment against me, and dismisses the claim in its entirety. I also request the Court to kindly consider the reimbursement of the fee of £275 plus the cost to attend the hearing and relevant litigation in person costs 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.

Full Name: XXXXX XXXXXX (Defendant)

Dated: xxxxxx

Signed:

Apologies for the formatting, it's not copying and pasting across very well.

Mars28 · 31 July 2022 at 5:25PM

A couple of questions if I may:

1) As I don't have detail of the PCN, I'm struggling to put much of a draft defence together yet? Do I need to include it with my N244? I didn't think I had to until later, but I see that others have done so. If I don't need to, then I'll remove the references to a draft defence and wait until my SAR is returned (or not).

2) If I could prove I wasn't the driver, would that be a useful point to make?

3) Should I SAR the credit report agent to evidence of (or lack of) soft traces? If so, does it matter which one? I can see there were no soft traces on my Karma report so maybe this isn't needed, but wasn't sure if I need to check anywhere else.

Coupon-mad · 31 July 2022 at 6:39PM

1) As I don't have detail of the PCN, I'm struggling to put much of a draft defence together yet? Do I need to include it with my N244? I didn't think I had to until later, but I see that others have done so. If I don't need to, then I'll remove the references to a draft defence and wait until my SAR is returned (or not).

Hold back on the draft defence until the SAR comes back. You don't need a written defence for the CCJ set aside hearing, just some notes about what your defence would be, if the court fails to strike out the claim entirely.

2) If I could prove I wasn't the driver, would that be a useful point to make?

Yes yes yes - it kills the claim entirely because CP Plus have never used the POFA in ANPR camera PCN cases. As a matter of law, the registered keeper CANNOT be held liable.

3) Should I SAR the credit report agent to evidence of (or lack of) soft traces? If so, does it matter which one? I can see there were no soft traces on my Karma report so maybe this isn't needed, but wasn't sure if I need to check anywhere else.

SAR the filing solicitor to ask when soft traces (if any) were done, who with, and exactly which addresses were returned. Ask for an actual copy of the returned soft trace results, not the solicitor's own case notes about it.

Mars28 · 31 July 2022 at 7:49PM

Thanks. Will remove the references to attached defence which I'll keep to myself as I develop it ahead of a hearing. And acknowledge SAR to filing solicitors, will send that off tonight.

I'm quite sure I wasn't the driver but just double checking dates now. Proving it might be slightly harder but probably not impossible with a combination of messages at the time, work e-mails and bank statements showing transactions during the parking period.

Reading POFA 2012 now, and if I understand correctly, you're saying that because CP Plus don't use POFA in ANPR PCN cases, inclusions in POFA which allow the registered keeper to be held liable below don't apply to CP Plus' claim. But I don't understand how CP Plus can choose not use POFA? But as they don't, where would I go to get an authoritative statement saying that the claim should be struck out because of it? I assume I should sit this center of my draft defence.

Help with a CCJ Set Aside please?

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