Default CCJ - VCS used wrong address even if I emailed them the correct one

Coupon-mad

They always try this trick. You want and are entitled to your costs so reply back first and tell them NO and not to mislead the court with a Draft Order slipped in the bundle that might be confused for consent and which they know WILL NOT be signed by the D, due to their attempt to wriggle out of paying your costs.

bridgefixer

I've been working on my witness statement addendum and skeleton argument.

The additions to the witness statement reflect what I learned from SAR. I'm not doing any changes to the previous statement – I include an additional document, an addendum, to my package. 

The skeleton argument (which is in the next post) is an adaptation from @Brokenchief to make it better fit to my case. I reworked the first and third part, but kept the second part that summarises the authorities unchanged. 

Next, I will write a case summary, add exhibits, and schedule of costs and put the documents together to an indexed and paginated file.  

The hearing will be held in Oxford County Court - does anyone have any experience with them? Like are they good or bad with this sort of cases? 

---- 

Defendant’s Witness Statement

– Addendum to the Witness Statement dated on DD Month YYYY

1.     I am My Name 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 on my knowledge.

2.     This statement extends the Defendant’s witness statement dated DD Month YYYY by providing additional details of the course of the events and invalid addresses used by the Claimant.

3.     The Defendant submitted a Subject Access Request to the Claimant on DD Month YYYY. The Claimant’s response received on DD Month YYYY provides evidence that the current address or contact details provided by the Defendant and acknowledged by the Claimant were not used. Instead, the Claimant obtained an invalid address from the car rental company, without a legitimate or practical reason to do so, and used a wrong address in all correspondence.

4.     The claim forms or any other paperwork were never served to the Defendant and the Country Court Judgment against the Defendant was entered in Default. The Claimant’s failure to use the current address and contact details provided by the Defendant has deprived the Defendant of his rights and opportunities to engage with the process or to defend himself in court, even if the Defendant contacted the Claimant immediately on the day of the alleged parking contravention, identified himself as the Driver, and provided all relevant contact details.

5.     This statement reiterates the requests dated DD Month YYYY:

a)     Mandatory set aside for the default judgment dated DD Month YYYY as it was served using an old address, pursuant to CPR 13.2.

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. 

Events Timeline, Correspondence, and Addressed Used

1.     28 August 2021, the day of the alleged parking contravention: the Defendant contacted the Claimant in good faith, immediately on the same day. He informed the Claimant that the car in question is a rental car and provided his current and serviceable address (Address 2), phone number (number), and email address (email). See Exhibit B(a) and explained in Paragraphs 3, 3(a), and 3(b) in the witness statement dated DD Month YYYY. 

2.     31 August 2021: The Claimant acknowledged the receipt of the Defendant’s address and contact details as shown in Exhibit B(b) in their response to my email and explained in Paragraph 4 in the witness statement dated DD Month YYYY. This shows that Claimant knew the Defendant's address and contact details right from the beginning but did not to use them without a legitimate or practical reason to do so.

3.     1 September 2021: The Claimant searched the Vehicle Keeper details from the DVLA database without a legitimate reason to do so, pursuant to Schedule 4 of the Protection of Freedoms Act 2012 5(1)(a). This is evident from the Claimant’s response to the Defendant’s Subject Access Request. See Exhibit X.

3.1. Schedule 4 of the Protection of Freedoms Act 2012 5(1)(a) states that the creditor’s right to claim unpaid parking charges from the keeper of the vehicle applies only if “the creditor does not know both the name of the driver and a current address for service for the driver.” In this case, the Claimant knew the named driver, his current address, and contact details right from the beginning, as shown by the Claimant’s acknowledgement of receipt in Exhibit B(b).

4.     1 September 2021: The Claimant sent a Parking Charge Notification to the car rental company at the address The Company Secretary, (address X).

4.1.  The Claimant’s Parking Charge Notification and Notice to Keeper states that: “At the Issue Date of this Notice we do not know both the name and current address for service for the driver.”

4.2.  This statement can be challenged on the grounds that the Claimant acknowledged the receipt of the Defendant's name, current address, and contact details on DD Month YYYY as shown in Exhibit B(b).

5.     15 September 2021: The rental company sent the Claimant with an old, incorrect, and unserviceable address (Address 1) in response. The address was no longer valid at the time of the alleged parking contravention because the Defendant was moving at the time, even if it was valid at the time of booking. 

6.     Regardless of having acknowledged the receipt of the current address and contact details from the Defendant, the Claimant opted to use the old address that was incorrectly obtained from the rental company in all subsequent correspondence. See Exhibit XX. 

6.1.  22 September 2021: The Claimant sends a Parking Charge Notification of £100 to the old address. 

6.2.  18 October 2021: The Claimant sends a Demand for Payment of £170 to the old address.

6.3.  3 December 2021: The Claimant sends a Final Demand of £170 to the old address.

6.4.  14 December 2021: The Claimant sends a Letter before Claim to the old address.

7.     31 October 2022: The Defendant learned about the County Court Judgment entered in default on DD Month YYYY when he received a letter from Direct Collection Bailiffs for the collection of the debt of £277 at his current address.

8.     The Claimant had several opportunities to ensure that the correspondence will be sent to the current and serviceable address.

8.1.  The Claimant should have used the current address and contact details provided by the Defendant on the day of the alleged parking contravention, pursuant to Schedule 4 of the Protection of Freedoms Act 2012.

8.2.  The Claimant should have noticed the address obtained from the Keeper was different to that provided by the Defendant. The Claimant should have sent a letter, email, or call to ascertain the correct address for service. This would have been easy as all these details were known to them all along. The Defendant was contactable in the address he had provided to the Claimant throughout the process as explained in the witness statement dated DD Month YYYY and shown in Exhibit E.

8.3.  Upon noticing that the letters to the Defendant went unanswered, considering that the Defendant had provided his current address and contact details at the earliest opportunity, the Claimant should have noticed something is amiss. Besides using the address provided by the Defendant, the Claimant could have also carried out a credit check soft search before the Court Proceedings to ensure the Defendant is aware of the allegations made against him and that he will be guaranteed a rightful opportunity to defend himself. 

9.     Due to the Claimant’s failure to use the Defendant’s correct address and contact details, even if they had them all along, the Defendant never received any parking charge notices, paperwork regarding the court claim, or any other relevant communication from Vehicle Control Services, their solicitors, or the County Court Business Centre. Therefore, the Judgment entered in default must be set aside because the Defendant has been unable to appeal or defend himself. 

10.  Considering all the 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. 

11.  I, therefore, submit that the court should set aside the judgment entered under part 12 as the Judgment was wrongly entered, given that CPR 6.9 (3) was not met and thus CPR 13.2 applies, requiring the County Court Judgement to be set aside.

12.  Considering the above and that I was unable to deal with this matter or defend myself against this claim, I respectfully request that:

a)     the Court sets aside the Default Judgment against me, and

b)    dismisses the claim in its entirety as the claim form has not been served within 4 months of issue, and

c)     advises the parking charge notification to re-issued as a response to the discovery of a serviceable address, allowing for a due appeals process without needlessly burdening the County Court System, or

d)    allows me to present my defence to this claim in Court.

13.  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.

bridgefixer

Defendant’s Skeleton Argument

1.     Under CPR 13.2 the Court must set aside a judgment entered under part 12 if the judgment was wrongly entered. Given that CPR 6.9 (3) was not met, CPR 13.2 applies, and the County Court Judgement should be set aside.

1.1.  The Defendant identified himself as the named Driver on the day of the alleged parking contravention. The Defendant also gave the Claimant an address at which the claim could have been served; he provided the Claimant with his current and serviceable address, email address, and phone number by email.

1.2.  The Claimant acknowledged the receipt of the Defendant’s contact details by email.

1.3.  The Claimant decided to pursue the Vehicle Keeper, a car rental company, without a legitimate reason to do so. Pursuant to Schedule 4 of the Protection of Freedoms Act 2012 5(1)(a), the creditor’s right to claim unpaid parking charges from the keeper of the vehicle applies only if “the creditor does not know both the name of the driver and a current address for service for the driver.”

1.4.  The Claimant received an incorrect and invalid address from the Keeper in response. Without a legitimate or practical reason, the Claimant used this invalid address in all subsequent correspondence. This is detailed in the attached witness statements.

1.5.  CPR 6.9 (3) stipulates that an "Individual" should be served at their "Usual or last known residence." However, where a claimant has reason to believe that the address of the defendant is an address at which the defendant no longer resides, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence (for example by using the address provided by the Defendant).

1.6.  In this case, the Claimant had a reason to believe the Defendant no longer resided at the address obtained from the Keeper. (1) The address from the Keeper was different to that provided by the Defendant. (2) The Claimant should have noticed something was amiss when the Defendant who provided his address and contact details and indicated his willingness to engage with this matter did not respond to any of the letters that were sent to the address that was different to that provided by the Defendant at the earliest opportunity. The address could have been easily ascertained for example by post, email, or phone; all these details were known to the Claimant right from the beginning.

1.7.  The claim was not submitted to the Defendant’s “Usual or last known residence.” CPR 6.9 (3) was not met, CPR 13.2 applies, and the County Court Judgment should be set aside.

2.     Given that more than 4 months have passed from the issue of proceedings and the 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 (Address 3). 

2.1.  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. 

2.2.  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 the expiry of that period. The court refused to grant relief on the basis that it did not have the power to do so. 

2.3.  In the 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." 

2.4.  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 Claimant should have used the address and contact details provided by the Defendant. Pursuant to Schedule 4 of the Protection of Freedoms Act 2012 5(1)(a), the creditor’s right to claim unpaid parking charges from the keeper of the vehicle applies only if “creditor does not know both the name of the driver and a current address for service for the driver.” In this case, the name and address were known all along.

3.1.  There is no safe presumption the address from the Keeper was a valid address where the Defendant can be served, especially as there was a reason to believe letters were not being received. Silence after sending a Hirer Notification, reminders and then a Letter before Claim is a clear indicator that the Defendant did not live there, in particular considering that the Defendant had provided a different address whilst indicating his willingness to engage with this matter in good faith.

3.2.  The Keeper data from DVLA is provided for a single (very limited) reason, so that a parking operator can invite the keeper to name the driver or to pay, or to inform the keeper they will be liable if not, and about their right to appeal.

3.3.  In this case, the Defendant’s name and address details were known to the Claimant all along. Pursuant to Schedule 4 of the Protection of Freedoms Act 2012, the Claimant should have contacted the Defendant instead of the Keeper. When the name and current address for service for the driver are known, a parking operator is expected is expected to address their communication to the driver because the driver is liable for the charges arising from alleged contraventions.

3.4.  As a response to the parking industry’s frequent failure to use correct addresses, the Private Parking Code of Practice published on 7 February 2022 states that reasonable endeavours must be undertaken to establish the correct correspondence details of the driver if parking charge notices or subsequent correspondence goes unanswered. Notwithstanding the failure to use the address provided to the Claimant, a claim sent to an old address with no soft trace checks (costing as little as 29 pence and offered free by debt collectors connected to the parking industry) fails to meet the Code of Practice and fails to satisfy the specific 'pre-action Protocol for debt claims' and is in breach of CPR 6.9 (3) about the obligation to take 'reasonable steps' to check a Defendant's address so that service is effective.

3.5.  The use of a current and valid address is fundamental to ensure a fair process and defence during the appeals state and in court hearings. In this case, the Claimant’s failure to use the address provided by the Defendant on the day of the alleged parking contravention, combined with the failure to ascertain the validity of the address that was incorrectly obtained from the Keeper, has deprived the Defendant of his rights to a due and fair process throughout the course of events.

4.     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.”

Not_A_Hope

In your WS the paragraphs are numbered from 1 again after para 5. It might be simpler to number all your paras from 1 to nn rather than having sub paragraphs  labelled as 1.1, 1.2 etc.

I am not sure you need ‘ without a legitimate or practical reason to do so’ in your second para 2.

Coupon-mad

Should be headed:

Defendant’s Supplementary Witness Statement


Typo: Country Court Judgment.

The hearing will be held in Oxford County Court - does anyone have any experience with them? Like are they good or bad with this sort of cases? 

I think they are OK - famous for a good appeal case, Jopson v Homeguard - but unsure about set asides.  However, we would be astonished if you don't get the CCJ set aside, if VCS had your correct address but failed to use it to serve the claim.

I think remove 1.1 right thru to 1.6 from your skelly (and also remove 3.4 and 3.5) because those paras repeat the WS and are not right for a skeleton argument, which should state the legal case only.

Same with para 4, not a legal point so shouldn't be in the skelly.

bridgefixer

Thank you for all help and comments! I have now modified the supplementary witness statement and skeleton argument. Fixed typos, headers, numbering, added new exhibits from SAR, paginated and indexed and so on. The case summary is yet to be written, but nearly there. It's like 44 pages without the authorities.  

Should I include the previous materials (witness statement, exhibits, etc.) as a scanned PDF, or can I compile them to a fresh pdf with electronic signatures? Or should I compile a mix of the old scanned and new pdfs into a new pdfs? Or does it matter?

The solicitor confirmed they received my message about not accepting the consent order, but maybe I should still remind them not add anything like to the bundle. Also, what do you think, should I add this exchange to my supplementary witness statement? 

For costs, I'll include £275 for the application fee and £95 for lost pay. Although this doesn't even begin to cover the time that has gone into this, I've understood that preparation costs cannot be included in a set aside application. And if the case will not be struck out based on the 4 months dead rule, I presume I need to remind the judge to reserve the cost for the next round at the end of the hearing. However, should this be the case, should I list all time and costs at this stage to have a record of them? Or can it be done later? 

As a final note, I think my case should be quite straightforward and the CCJ should be set aside when the Claimant failed to use my current address – but I'm still a bit nervous about it – that is miss something, get a judge that is not good for my case, and perhaps most annoyingly, the simple of fact the other side is not acting in good faith. Anyway, a bit more preparation and fingers crossed it will turn out as it should. 

Coupon-mad

 And if the case will not be struck out based on the 4 months dead rule, I presume I need to remind the judge to reserve the cost for the next round at the end of the hearing.

No, not reserved.

Ask for your costs to be ordered against the Claimant immediately for using an old address - that is wholly unreasonable conduct in litigation and is the sole cause of this harassment, this hearing and this complete waste of everyone's time and money.

However, should this be the case, should I list all time and costs at this stage to have a record of them?

At this stage. Now. A full breakdown and hours spent at each stage/paperwork, at £19 per hour.

Your bundle will be well over 50 pages (a court will refuse to print it out) so print and put a neatly organised full hard copy version into a ring binder for yourself and the local Judge.  Fully paginated and with dividers with words on them saying what each section is. Deliver by hand.

Email the same thing to the other side's solicitor. In dribs and drabs if you want!  After all, emails have attachment size limits.

Add your printing costs receipt and ring binder receipt to your 'extra costs' that you want the court to assess and grant in full, for the C's wholly unreasonable conduct.

bridgefixer

Thank you! Will add all relevant costs and make a nice ring binder for the Judge and myself. 

1505grandad

Probably being over pedantic but there are several references to "keeper" supplying incorrect address i.e.:-

"8.2.  The Claimant should have noticed the address obtained from the Keeper was different to that provided by the Defendant."

However I would suggest that the rental company is the "registered keeper" and the hirer "keeper (day to day)".

bridgefixer

However I would suggest that the rental company is the "registered keeper" and the hirer "keeper (day to day)".

Thank you for pointing this one out. Will modify to avoid any misunderstanding.