URGENT Help needed! - Discovered CCJ from PCN

Coupon-mad

Have you done your WS bundle & evidence yet?

EDIT: I see it us a CCJ set aside hearing and you have - good!

Toyaboya2

Thank you, yes I have already submitted all of those WS, Draft Order (see earlier in the thread), Skeleton Argument (Pretty much the same as the ones you kindly reference), Schedule of Costs, 4 Case Law Authorities to both the Claimant and the Courts.

Do you think I have a realistic chance of defending this? Or should I just pay?

My Skeleton for reference, I still need to read up on how to use the 4 case law authorities and their relevance etc (slightly adapted as the address used for service was never my DVLA address):



SKELETON ARGUMENT

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

2.1 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.

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.”

3.1 The Claimant did not take any reasonable steps to ascertain and verify the correct address for the Defendant for service of the claim. The address used by the Claimant to serve the claim form had been vacated with the rental tenancy completed by the Defendant over 5 years prior.

3.2 Further, the address used by the Claimant to serve the claim form was never a DVLA registered address of the Defendant, an address where the registered keeper of a vehicle is there to be found. Nor, was the address ever registered for Electoral Role purposes, the Defendant does not understand how this the address was ascertained or why it was used for service of the claim.

3.3 There is no safe presumption that the address used for service of the Claim at University Address is or was a valid address where the Defendant could be served, especially over 5 years after the event in question, and especially where there was clear reason to believe that the letters were not being received. Silence after sending a Notice to Keeper, a reminder and then a Letter before Claim is a clear indicator that the Defendant may no longer live there.

3.4 The Claimant holds membership and therefore must abide by the rules of the British Parking Association (BPA) Code of Practice. Section 24.1.c of the rules state: “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.”. In this case, no responses were received to the NTD/NTK/reminder letters and the Claimant took no steps to ensure the address details were correct, hence did not comply with BPA procedures.

3.5 A claim sent to an old address which was never registered with the DVLA or Electoral Roll with no soft trace checks via a Credit Agency (costing as low as 29 pence and offered free by debt collectors connected to the parking industry) fails to meet the BPA Code of Practice, and also fails to satisfy the specific 'pre-action Protocol for debt claims' and is therefore in breach of the CPRs about the obligation to take 'reasonable steps' to check a Defendant's address so that service is effective. The Claimant acted wholly unreasonably by negligently or deliberately disregarding all rules and caused the claim to be improperly served. They failed to serve it at all.

4.1 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.

 

1505grandad

Just checking  -  is (this) exactly how they stated the following:-

" I have conduct of this action, subject to the supervision of my (Principle).

Toyaboya2

@1505grandad Yes this is the exact wording 

Le_Kirk

If you have already submitted everything the court order demanded, there is nothing more to be sent.  You are in the same position you were in before the claimant sent you their WS - was it on time?  If it was late you could ask the judge to not allow it!  Is the court hearing on 24th to hear the set-aside?  You now have the claimants witness statement and can go through that with a fine toothed comb picking holes in it and being ready to point out any failings or untruth accidental errors to the judge.

Toyaboya2

@Le_Kirk I received the email from Gladstones today at 11am (Weds 18th Jan), the hearing is on Tuesday 24th at 12 Midday, so only 3 total full working days. This will be the Set Aside hearing. However, I did only send my bundle to Gladstones on the 3rd Jan (I sent the bundle to the Court in December). Have Gladstones left it too late?

Do you guys have a 'gut feel' if this is worth fighting given that I contacted DRPL in 2016 and they sent one postal letter to my actual address (asking me to pay the debt) in 2020, which I ignored ?

I can either just agree to pay their fees to get it set aside or fight it, but what if I fight it and it doesn't go my way? Will I then be able to bring up their offer to set aside and go with that? Will the judge be lenient to that?

I would really appreciate your thoughts even though these things are always unknown!

Coupon-mad

Nothing has changed.  It's a load of hot air!  Don't be spooked!

Gladstone's are saying that the letter to my new address in Surrey in June 2021 is adequate enough to show they tried to obtain my address for service of the claim and took reasonable steps. 
Please can you help me? Do you think I have a good chance of reaching CPR 13.2 here? What is the best outcome for me, should I just pay the money and agree to set aside?

Nonono!

Nothing to gain and I don't see why on earth you should cave.  Let the Judge decide.  If the Judge is not with you I'd be gobsmacked, but given:

(a). you have good chances of defending the claim*

(b). You acted very promptly, and

(c). It is a fact that the Claim was not properly served, and

(d). The solicitors admit (in para 37) that the claim was inflated 'in error' (it was also further inflated by a false +£60 or £70 'admin fee' that the parking firm paid to precisely no-one, because both DRP and Gladstones are ambulance chaser-style unregulated 'debt chasers' who act on a 'no pre-action recovery, no fee' basis).  Interest was then applied wrongly on the whole exaggerated quantum, from day one.  That is an abuse and unjust so the CCJ must be set aside...

Then either CPR 13.2 (mandatory) or - failing that - at least CPR 13.3 (discretionary) set aside applies and you should have your application refunded be allowed to defend.


* as well as genning up on your '4 months dead' case law, you need to know the bones of your defence and what it will be.

The Judge might well ask you to explain your basis of defence, if they are undecided whether to go with your draft order or Gladstones.

You need a defence crib sheet, especially if you didn't put a draft defence in yet.  Is it that you were unloading?  If so, Jopson v Homeguard applies and that's a persuasive appeal case. 


Also, some observations:

Gladstones WS is full of holes:

- what 'adding-up' £sum error are they admitting to in paragraph 37 and you should ask the Judge to please consider how often Gladstones 'conveyor belt' of an automated roboclaim model has likely made this 'mistake' in all CCJs, such that victim consumers have routinely paid too much, and to question why this represented Claimant has not drawn it to the court's attention themselves and made an application for relief from sanctions;

- they are basically saying that they found a new address in 2021 but deliberately reverted to the old 2016 university address (that their clients, KNEW was a site full of uni student short annual tenancies).  Say that to the Judge!  That cannot be taken to be good service.  It's lazy at best and presumably the Claimant had your email address all along?

- They could easily have contacted you in 2022 before filing the claim.  The fact they didn't is a specific BPA CoP breach.

Toyaboya2

@Coupon-mad @Le_Kirk Thank you both for your help 

The hearing on the 24th Jan is the Hearing to Set-Aside. If the 4 months dead argument is not accepted, will there need to be another hearing to hear my defence under CPR 13.3  ? 

Coupon-mad

Yes that's right.

Toyaboya2

@Coupon-mad
That sounds like alot of stress to keep this ordeal going potentially to another hearing

If I try my arguments to reach CPR 13.2, but then fail to convince the judge, can I just say I go with the Claimants Draft Order where I agree to pay the amount and get the judgement and ccj wiped? (I can't do this currently as I found it after it had been on my record for more than 30 days).

I know it's wholly against the ethos of this forum to do that, but honestly the stress of this whole thing is killing me, so there's value to me in having it done with quicker even if it means paying, but I'd like to have a stab with my case first if that's a possibility, I just don't want this to go to a second hearing