Phase 1: CCJ Removed. Phase 2: Claim Discontinued. Phase 3: Costs.

Harvez63

Hi All, 2023 prep begins now! time to get obsessed with this. I hope everyone had a good Christmas

Is the below the part of the BP COP I want to show, to demonstrate 4b wasn't met as it wasn't sent to the current address?

Harvez63

Below is my proposed Skelly, can you all have a quick scan over it? The judge wont potentially throw out point 1 because I've added the Experian bit will they?

I've added 1.1, 1.2, 1.3 following another posters Skelly on here, but now I'm worried its more of a WS. But I await your expert reviews 

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. To support this legal point, I’ve attached the Experian page which shows my current address has been always been available to be found, which shows the defendant living at the address given to the claimant and living there since 2019; as the claimant was informed.

1.1  The defendant gave the claimant the current living address on 18th July, 2019 with a phone number that is still current and active, via an email address which is also still current and active. 

1.2  The defendant then updated the claimant on 4th November with a new address. Phone number and email address remained of that giving in 1.1.

1.3  The claimant acknowledged the address change 6th November 2019. However since this acknowledgement no further correspondence has been received from the defendant by phone, email, or post.

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.”

3.  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.”

 

 

Coupon-mad

Harvez63 said:

Hi All, 2023 prep begins now! time to get obsessed with this. I hope everyone had a good Christmas

Is the below the part of the BP COP I want to show, to demonstrate 4b wasn't met as it wasn't sent to the current address?

Wrong part of the BPA CoP.  Not relevant.

You want the clause (and I don't know which number it is, that's for you to read & find!) that says an AOS member must check details before issuing a LBC.  It is frustratingly vague (because the BPA CoP is self-serving) but it is about checking name/address before litigation.


"I've added 1.1, 1.2, 1.3 following another posters Skelly on here, but now I'm worried its more of a WS." 

I think that part is already in your WS and should not be repeated in a skelly.

Harvez63

Is this is @Coupon-mad ?

24.1.c - (page 17 of 50)  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. 

My only issue if the above is correct, and from my understanding; I received a "Letter of Claim" whilst living at the old address before I moved, is LOC the same as LBC? therefor the above irrelevant in my case? but then it does mention prior to issue of proceedings so could be correct I guess 

Le_Kirk

LOC/LBC/LBCCC are all the same

Harvez63

Should I still add this to my skelly then? as at the time, the LOC was sent to the correct address, however it was afterwards I informed the claimant of my move? From a non experienced outlook it views to me as just stating the claimant followed the CoP in that respect? 

Jenni_D

How long before the claim was filed was the LOC sent to your old (then current) address? Did you respond to the LOC?

Coupon-mad

Harvez63 said:

Should I still add this to my skelly then? as at the time, the LOC was sent to the correct address, however it was afterwards I informed the claimant of my move? From a non experienced outlook it views to me as just stating the claimant followed the CoP in that respect? 

No. It is well worth using against them!

It is clearly saying by any reasonable interpretation, that before filing a claim they must check details are correct.  Never mind that they'd previously sent a LoC!  You then told them you'd moved, so that then became your last known address. They might have issued a new LoC (but didn't have to); however they DID have a duty to serve the darn claim to the correct address!

This was not only a duty under the BPA CoP but also a statutory duty under the CPRs about service of claims.

Harvez63

how about this? am I on the right track?
 
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. To support this legal point, I’ve attached the Experian page which shows my current address has been always been available to be found, which shows the defendant living at the address given to the claimant and living there since 2019; as the claimant was informed.

2. I also attach section 24.1.c from the British Parking Association “Code of Practice” which wasn’t met, which states; “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 rest remains the same as last posted 

I'm going to take this to the courts end of the month to submit which meets the two months prior to the hearing requirements 

Harvez63

Jenni_D said:

How long before the claim was filed was the LOC sent to your old (then current) address? Did you respond to the LOC?

Interesting. I just went to check the date on the LOC but the letter doesn't have a date on it. However I posted on here that I received it 18th July 2019 and I informed them of the move 4th November which was my only response but to Premier Park, not BW legal. The CCJ was APR 2022