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

Coupon-mad

I'm not offended, happens a lot here!  I'm not annoyed - and you are very nearly there.

Just add the Default Judgment words into the WS.

Harvez63

Please be there, I feel like I'm taking too much time to respond to the CCJ. This is week 6 since finding out and I've not submitted anything 

WITNESS STATEMENT

1. I am xxx and I am the defendant 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 own knowledge. 

 

Sequence of events

            Background

1.     I received a parking charge notice (PCN) from Premier Park LTD for an parking event which occurred on 28thDecember 2017.  

2.     The PCN was appealed against with the claimant with communication back and forth via email between the defendant and claimant. 

3.     During this time I moved house in November 2019 and notified the claimant of the address change on the 4th of November 2019, using the same email address previously provided to me by the claimant. 

4.     The claimant responded acknowledgement of the address change on the 6th of November. 

5.     I never received any further communication from the claimant from the above date and therefore believed  the claimant no longer wished to pursue me in relation to the original parking event.

Application sought by the Defendant

6.      A random credit check was carried out by myself on 12th July 2022 where I had noticed my credit score had gone from being the best available, to being listed as poor. To further investigate I signed up for an in depth credit review and noticed the CCJ was issued against me on the 8th April 2022. It should be noted that no claim was ever served to me at the address for service the claimant had on file and had acknowledged by email on the 4th November 2019. This was a clear breach of Court Procedure Rules (CPR) 6.8.

7.     I emailed the claimant the on the 18th July 2022 (exhibit 02), using both the original correspondence email address, and their complaint email address, requesting they set aside the CCJ against myself, whilst attaching the email of address changed acknowledgement (exhibit 01), and for them to respond within 14 days. However no response was received. 

8.     Since no response was received I have been gathering the knowledge/information required to the best of my ability to apply for the CCJ to be set aside. 

9.     I believe the Claimant has not adhered to Civil Procedural Rules (CPR) 6.8 (a) 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 and use the address of my current residence. This has led to the claim being incorrectly served to an old address and an irregular judgment.

10.  As a direct result from this CCJ brought against me, it has caused an unbearable amount stress emotionally and financially. Hours have been spent trying to gather the information to respond to this issue brought upon me by someone else’s with little thought in the consequences, or following proper procedures.  All this comes during a busy period of house renovations and whilst trying to keep our company afloat during the upcoming recession by working 10 hour days, 6 days a week. As a result of this CCJ it has the potential to take away any vital financial life lines we may need to take in the form of credit, both for our home, our income and our business.   

11.  Under CPR 13.2 The Court must set aside a judgment entered under part 12 if judgment was wrongly entered. Given that CPR 6.8 (a) was not met, CPR 13.2 applies and the CCJ should be set aside. 

 

12.  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 put my utmost effort to obtain necessary information and have managed to submit the case application within 6 weeks of discovering the Default Judgment. 

 

13. 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)

Coupon-mad

Yep!

Three things:

- In #6 change 'on 12th July 2022' to a more general: 'in July 2022'.

- You must of course add a statement of truth and signature/date to the WS then save it as a PDF (leave the Draft Order as a WORD DOC)

- add a line to your final point, stating that you are appending four case law authorities to support the argument that an un-served claim is 'dead' and the court cannot resurrect it after the CPRs' strict and mandated 4 month period for service:

Boxwood
M&S v Vinos
Croke
Piepenbrock

See the thread by @GlassRoof36 for the full citations for those cases which you can then Google to easily find the Judges' decisions transcripts. Add the actual transcripts as numbered exhibits.

Are you already attaching your proof of moving and proof of the email exchange with the Claimant?

Very good!  Number every page of the bundle once it's all sorted!

Harvez63

Thank you so much for your continued support. Feeling ill today, likely stress running me into the ground but if I can get this off to the relevant recipients by this week, a weight will be lifted from my shoulders. 

Are you already attaching your proof of moving 

What would I need to show as proof of moving? A completion statement of some sort? Do I have to then reference that exhibit somewhere in my draft or witness statement? 

I still find it absolutely insane a) this could happen and b) I have to go through all this to find out how to fight it! If this forum wasn't here I dont know what I'd do. 

You must be sick of reading this, sorry

DRAFT ORDER

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 8th April 2022.  I am aware that the Claimant is Premier Park LTD, and that the assumed claim is in respect of an unpaid Parking Charge Notice from 28th December 2017.

1.3. The claim form was not served at my current address and thus I was not aware of the Default Judgment until 12th of July 2022 following a check of my credit report.

1.4. The address on the claim is xxx. I moved from this address to my current address of xxx on 5th November 2019. The house where this charge was applied was owned by me (the defendant) up till 5th November 2019.

1.5 I notified the claimant of my change of address on 4th November 2019 via email, to which they responded acknowledgment of the address change on 6th November 2019. See exhibit 01. 

1.6. Notwithstanding the fact that the claimant has legal representation, the claimant has failed to comply with the essential requirements of the civil procedure rules for commencing a claim, such that I have had (a) no notice of the claim (b) no opportunity to respond to it and (c) now face significant prejudice as an individual and small business owner as a result of a default judgment, to which I believe they have never been entitled. 

1.7.1 On that basis, I believe the Claimant has not adhered to Civil Procedural Rules (CPR) 6.8 (a) 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 and use the address of my current residence. This has led to the claim being incorrectly served to an old address and an irregular judgment.

1.7.2 Under CPR 13.2 The court must set aside a judgment entered under part 12 if judgment was wrongly entered.  Given that CPR 6.8 (a) was not met, CPR 13.2 applies and the CCJ should be set aside.

1.8 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)

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.

 

 

 

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

WITNESS STATEMENT

1. I am xxx and I am the defendant 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 own knowledge. 

 

Sequence of events

            Background

1.     I received a parking charge notice (PCN) from Premier Park LTD for an parking event which occurred on 28thDecember 2017.  

2.     The PCN was appealed against with the claimant with communication back and forth via email between the defendant and claimant. 

3.     During this time I moved house in November 2019 and notified the claimant of the address change on the 4th of November 2019, using the same email address previously provided to me by the claimant. 

4.     The claimant responded acknowledgement of the address change on the 6th of November (see exhibit 01). 

5.     I never received any further communication from the claimant from the above date and therefore believed  the claimant no longer wished to pursue me in relation to the original parking event.

Application sought by the Defendant

6.     A random credit check was carried out by myself in July 2022 where I had noticed my credit score had gone from being the best available, to being listed as poor. To further investigate I signed up for an in depth credit review and noticed the CCJ was issued against me on the 8th April 2022. It should be noted that no claim was ever served to me at the address for service the claimant had on file and had acknowledged by email on the 4th November 2019. This was a clear breach of Court Procedure Rules (CPR) 6.8.

7.     I emailed the claimant the on the 18th July 2022 (exhibit 02), using both the original correspondence email address, and their complaint email address, requesting they set aside the CCJ against myself, whilst attaching the email of address changed acknowledgement (exhibit 01), and for them to respond within 14 days. However no response was received. 

8.     Since no response was received I have been gathering the knowledge/information required to the best of my ability to apply for the CCJ to be set aside. 

9.     I believe the Claimant has not adhered to Civil Procedural Rules (CPR) 6.8 (a) 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 and use the address of my current residence. This has led to the claim being incorrectly served to an old address and an irregular judgment.

10.  As a direct result from this CCJ brought against me, it has caused an unbearable amount stress emotionally and financially. Hours have been spent trying to gather the information to respond to this issue brought upon me by someone else’s with little thought in the consequences, or following proper procedures.  All this comes during a busy period of house renovations and whilst trying to keep our company afloat during the upcoming recession by working 10 hour days, 6 days a week. As a result of this CCJ it has the potential to take away any vital financial life lines we may need to take in the form of credit, both for our home, our income and our business.   

11.  Under CPR 13.2 The Court must set aside a judgment entered under part 12 if judgment was wrongly entered. Given that CPR 6.8 (a) was not met, CPR 13.2 applies and the CCJ should be set aside. 

 

12.  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 put my utmost effort to obtain necessary information and have managed to submit the case application within 6 weeks of discovering the Default Judgment. 

 

13.  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)

14.  I am appending four case law authorities to support the argument that an un-served claim is ‘dead’ and the court cannot resurrect it after the CPR’s ‘strict and mandated 4 month period for service. 

15.  There are several authorities for this, including the judgment in Boxwood [2021] EWHC 947 (TCC) (see exhibit 03), 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…” 

 

16.   In Vinos v Marks & Spencer plc [2001] 3 All ER 784 (see exhibit 04) 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. 

 

17.  In judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch) (see exhibit 05) 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."   

 

18.  In Piepenbrock-v-Associated News Limited [2020] EWHC 1708 (QB) (please see attached ???.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.”

 

 

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.

 

 

SIGNATURE

 

…………………….. xxxxxxxxxxxxx DATE             xx/xx/xxxx

 

DRAFT ORDER

UPON reading the defendant’s application dated (date when I will send an email with n244)

It is ordered that:

1. The judgment (case number) dated 08/04/2022 be set aside.

2. The original 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 totalling £275 on an indemnity basis

Jenni_D

You have two parts called DRAFT ORDER ... is that what you intended?

Johnersh

OK, you do need to get the application filed at court as soon as you can.

The draft order should be short. Something like similar to the below, but other examples also appear on the forum. 


UPON reading the application of the defendant

AND UPON hearing from the defendant and on behalf of the claimant 

AND UPON the court determining that the claim form issued under number xxxx had not been served with 4 months of issue


IT IS ORDERED THAT:

1. Judgment dated xxxx be set aside

2. The claim issued under number xxxx be struck out

3. The claimant do pay the defendants reasonable costs of the application, summarily assessed at [£.    ] 

Coupon-mad

Just attach proof of where you live now, such as a Council tax bill for the past couple of years.

I see you found the 4 transcripts - good stuff - but Piepenbrock should be Exhibit 06, not: (please see attached ???.pdf) 

None of this is needed, is it, as I think you have it all in the Witness Statement now?  This looks like duplication:

DRAFT ORDER
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 8th April 2022.  I am aware that the Claimant is Premier Park LTD, and that the assumed claim is in respect of an unpaid Parking Charge Notice from 28th December 2017.

1.3. The claim form was not served at my current address and thus I was not aware of the Default Judgment until 12th of July 2022 following a check of my credit report.

1.4. The address on the claim is xxx. I moved from this address to my current address of xxx on 5th November 2019. The house where this charge was applied was owned by me (the defendant) up till 5th November 2019.

1.5 I notified the claimant of my change of address on 4th November 2019 via email, to which they responded acknowledgment of the address change on 6th November 2019. See exhibit 01. 

1.6. Notwithstanding the fact that the claimant has legal representation, the claimant has failed to comply with the essential requirements of the civil procedure rules for commencing a claim, such that I have had (a) no notice of the claim (b) no opportunity to respond to it and (c) now face significant prejudice as an individual and small business owner as a result of a default judgment, to which I believe they have never been entitled. 

1.7.1 On that basis, I believe the Claimant has not adhered to Civil Procedural Rules (CPR) 6.8 (a) 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 and use the address of my current residence. This has led to the claim being incorrectly served to an old address and an irregular judgment.

1.7.2 Under CPR 13.2 The court must set aside a judgment entered under part 12 if judgment was wrongly entered.  Given that CPR 6.8 (a) was not met, CPR 13.2 applies and the CCJ should be set aside.

1.8 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)

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.

Harvez63

Jenni_D said:

You have two parts called DRAFT ORDER ... is that what you intended?

See this is where I've confused myself. I done the draft order then thought I had two do the witness statement which was somehow different to the each other but containing a lot of the same text

@Johnersh @Coupon-mad thank you! I'm just about to go into a meeting then I'll update 

Johnersh

For the avoidance of doubt when filing an application (whatever it is about) the documents required are generally:

1. Form N244 (what are you applying for and why)
2. A witness statement (evidence in support of the application)
3. A draft order (what you are requesting the court to order)

Repetition and irrelevance are to be avoided where possible, so if you find yourself doing that, there's scope to prune it. 

Harvez63

Just in your opinion, which version of essentially the same document is better? the one I labelled draft order currently? or witness statement?