Parking CCJ set aside, some advice required

EpsomJim

On the basis that I can submit a supplementary witness statement - here is what I am planning to say, in part in response to their WS (which I posted the main points in bullet form above)

I am xxx and I am the defendant in this matter. Further to my initial witness statement sent to the Court on xx.xx.xx, this is an additional supporting statement to my application dated xxth October xxxx requesting to:

a. Set aside the default judgment dated xx.xx.xx as it was not properly served at my current address.

b. Order for the claimant to pay the defendant £275 as reimbursement for the set aside fee.

This statement provides additional evidence in support of my claim, as well as addressing some comments made by the Claimant’s solicitors in their own witness statement.

ADDITIONAL EVIDENCE IN SUPPORT OF MY DEFENCE

1.1 In my witness statement, I stated that I moved from the address at which the claim was served [xxx] on xx.xx.xx, moving again on xx.xx.xx to my current address.

1.1.2 In support of this, please find attached a redacted copy of my credit record (Document A), clearly showing that I could be found at each address due to my credit history and presence on the electoral roll.

1.1.3 The electoral roll for [local] council has not yet updated on my credit report, so please find attached e-mail confirmation that I am a registered elector (Document , as well as an e-mail sent to them in February 2023 showing I had registered for the electoral roll in November 2022 (Document C).

1.1.4 Furthermore, I stated that I registered each change of address with the DVLA, and also that I sold the vehicle in question on xx.xx.xx. As confirmation of the sale, please find attached a scanned copy of the receipt (Document D).

COMMENTS ON THE WITNESS STATEMENT OF CLAIMANT’S SOLICITOR

1.2 I received the witness statement of the Claimant’s solicitor on xx.xx.xx, when it was also submitted to the Court for consideration.

1.3.1 Claimant’s solicitor states that they sent a ‘Letter Before Claim’ to my old address. When this got no reply, they conducted a trace which provided a different address. They then sent an additional letter to this address asking me to confirm I lived there. Receiving no reply, they issued the claim to [xxx].

1.3.3 Their witness statement does not provide the dates that these letters were sent, though the bundle they have since provided shows the Letter Before Claim was sent on xx.xx.xx. I presume the other letter was sent between that date and the date the claim was issued: xx.xx.xx. I did not receive either letter.

1.3.4 As they provided no evidence of the existence or content of the second letter to accompany their witness statement, I submitted a Subject Access Request to the Firm on xx.xx.xx and followed up with a personal e-mail to their contact – xxx – asking him to confirm the date of the letters, and which address they were sent to. Please find copies of both e-mails attached (Document E).

1.3.5 I have received no reply to either of my e-mails. As such, I am unable to ascertain whether the second letter the Firm sent – following the trace it conducted – was sent to my correct address at the time, or another incorrect address. Again, for confirmation, I did not receive that letter.

 

1.4 The witness statement suggests that it is my obligation to ensure my details ‘are correct and up to date with the DVLA’, and they cannot be prejudiced by my failure to do so.

1.4.1 I have promptly registered any change of address with the DVLA, both in terms of updating my driving licence and vehicle log books.

1.4.2 However, the Claimant’s solicitor should know that the DVLA only provide the address as correct at the date of a contravention. Indeed, they have made mention of this at point (9) of their statement. I am not sure why they are suggesting that DVLA records can be relied upon to ensure correct service of the claim form.

1.5 Point (14) of the Claimant’s solicitor’s witness statement avers that the Firm had ‘no reason to suspect the address was no longer an address at which the Defendant did reside’.

1.5.1 At the point they sent out the claim, they had received no response from me on any of the occasions they had written to me at [xxx].

1.5.2 In addition, the trace they conducted showed another address for me, which they then allegedly wrote to me at to confirm it was my current address.

1.5.3 These two facts suggest, in fact, that they had a very real suspicion that I no longer resided at the address the claim was sent to.

1.5.4 Nonetheless, they decided to serve the claim to [xxx] regardless, hiding behind GDPR as a reason for not using the traced address rather than using what would seem to be a strong legitimate interest to have done so.

1.5.5 For these reasons, I do not think their claim that the Claim Form was properly served stands up to scrutiny, and I disagree with their request to remove any Order as to Costs .

Coupon-mad

Use normal numbering instead.

Does their bundle include all your submissions too, or just their argument?

Even worse, does their bundle include a draft 'Consent Order' to mislead the Judge?

EpsomJim

Their bundle contains:

Copy of claim form
My application to set aside
My draft order
My original witness statement
Court notices (transfer of proceedings, notice of hearing)
Their witness statement
Copy of the letter before claim they sent (to incorrect address)
Email showing they sent me witness statement
Email showing they served witness statement to court
Certificate of service

So the only thing it doesn't contain is any of the e-mails showing that I sent witness statement to court. Do I need to provide that?

They don't include a 'Consent Order', but their witness statement asks that, should the court elect to set aside the judgement, 'the Claimant would request the following Order be made:

a. The judgement entered on xx.xx.xx be and is hereby set aside; and
b. There be no Order as to Costs'

They've done that because in their witness statement they are trying to suggest the Claim Form was served properly, so they can't be liable for the costs of my application to set aside.

Noted on numbering - any thoughts on content, particularly anything missing? Their GDPR argument has infuriated me.

Coupon-mad

No evidence that they did a 28 pence bulk 'soft trace' with Experian to check your whereabouts?

Therefore this is evidence that they breached the Code of Practice and the CPRs.

Boat_to_Bolivia

1.5.3 These two facts suggest, in fact, that they had a very real suspicion that I no longer resided at the address the claim was sent to.

Just a suggestion??.... 

1.5.3 The two points above suggest that they already suspected I no longer resided at the address the claim was sent to.

EpsomJim

Coupon-mad said:

No evidence that they did a 28 pence bulk 'soft trace' with Experian to check your whereabouts?

Therefore this is evidence that they breached the Code of Practice and the CPRs.

They say that they undertook a trace which uncovered a different address for me. They then allegedly wrote to me at that address asking me to confirm it was my current address (I didn't receive any letter). When they got no reply, they then assumed I didn't live there, and sent the claim to my old address.

If you are asking whether they have provided any evidence of the trace? They have not, and I will put that in my supplementary witness statement, thank you!

Boat_to_Bolivia said:

1.5.3 These two facts suggest, in fact, that they had a very real suspicion that I no longer resided at the address the claim was sent to.

Just a suggestion??.... 

1.5.3 The two points above suggest that they already suspected I no longer resided at the address the claim was sent to.

Very helpful - I will amend, thank you.

Coupon-mad

They say that they undertook a trace which uncovered a different address for me. They then allegedly wrote to me at that address asking me to confirm it was my current address (I didn't receive any letter).

When they got no reply, they then assumed I didn't live there, and sent the claim to my old address.

If you are asking whether they have provided any evidence of the trace? 

Yes.  And there's no evidence of that supposed letter with the right address in it either? Speaks volumes...

EpsomJim

Coupon-mad said:

Yes.  And there's no evidence of that supposed letter with the right address in it either? Speaks volumes...

Great - have amended, thank you.

Final question.

Do I submit this as a single document with attachments, or do I create a separate trial bundle in addition to the one provided by the other side?

And, if it's a bundle, how do I communicate it to the court? 'This is an additional bundle?'

EpsomJim

Hi all,

Just wanted to come back following my hearing this morning where I got the set aside and was awarded my costs (£275).

Claimant's solicitors (Gladstones) actually turned up on call, despite saying they wouldn't.

Judge got me to confirm what my application was for. He then asked other side whether they contested the set aside. They said they did not, on the basis that it had already been satisfied. He said that made things a lot easier.

He then asked me if there was anything else. I said that I had included the claimant paying my costs in my draft order. He asked other side whether they agreed this, and they said they were contesting costs.

He then asked for evidence that I had registered any house moves with the DLVA etc. I took him through my evidence (credit report, electoral roll). I said I've always updated my details with DVLA, but it wasn't applicable anyway as they would only have got the address from the time of the event (2016).

He then asked the other side why they didn't trace me. She said the claimant said they conducted a trace, which didn't impress. He pointed out all of the information I'd provided was publicly available, and so why did they not use any information created by the trace. She said she didn't have an answer, so he said he was awarding me costs.

I did ask whether I could claim any other costs, but he pointed out I hadn't submitted a schedule, so no.

The interesting thing came at the end. He said they would have to pay me costs in 14 days, and also that I now needed to submit a defence as this was a 'contested matter' again.

When I pointed out that, as I'd been forced to satisfy the judgement, I didn't think I could then contest the claim, he said that was incorrect. As the judgement has been set aside, so has my liability to pay it, so I am entitled to be reimbursed any payment should a defence against the original claim succeed. I have 14 days to submit a defence to the original claim. 

This isn't something I was aware was possible. It's going to be tricky to create a defence to contest a claim from seven years ago, but I'm going to give it a go!

B789

Excellent news, well done. Sounds like you had a decent judge and it is good to note that a "satisfied" CCJ that has been set aside can be contested again and if you win then the claimant has to reimburse you.

Just show us the PoC from the original claim and your defence should be straightforward.