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

bridgefixer

I submitted my trial and authorities bundles yesterday to ELMS legal. 

They sent a signed consent order to the court, even if I earlier confirmed to them that I'm not accepting their consent order. 

"Upon the Parties having consented and agreed to the terms set out below: -"

- The Judgement to be set aside
- The claim to be allocated to the small claims track
- No order as to costs

And obviously I haven't agreed to anything....

Also, they did not send any other documents/witness statement, only the consent order. Plus they did not forward any of my materials to the court even if the listing letter asks them to do so. So, I need to do that by myself.

But before that, a practical question: what is appropriate way to make sure that Judge knows I'm not consenting? Should I update my package, add a new bit of witness statement where I document I haven't consented to the order. And can I still do it? There's still two more days before the submission deadline. Or is there something else I should consider.

Galloglass

But before that, a practical question: what is appropriate way to make sure that Judge knows I'm not consenting? 

Turn up and argue your case which you'll have sent to the court beforehand. The Judge will accept the S/A; will state there should be a re-run of the case; and likely reserve the issue of costs to the next hearing.

The next hearing is not likely to happen unless C thinks they have a chance of winning so you may be out of pocket.

Coupon-mad

I would put your bundle in by email and in the body of the email point out two things:

- that the solicitors for the Claimant failed to file the bundle as ordered by the court, so you are doing so to assist the court;

- that the solicitors for the C have misled the court by sending an irrelevant 'draft consent order' without further comment,  which is NOT an agreed document, nor will it be signed by the Defendant.  The court is invited to consider why this was sent to the court at all, given in a previous recent case in the public domain (handled also by Elms Legal in 2022) a Judge wrongly took it to be a consent order (not draft) and mistakenly vacated the Defendant's hearing and ordered no costs for the poor Defendant who was then out of pocket by £275.



I would crack on with your emailed bundle right now in case the exact same disaster is unfolding at the court, given that draft consent order includes your name at the bottom (typed) I assume?

You cannot wait till the hearing in case it gets vacated!

Galloglass

that the solicitors for the C have misled the court by sending an irrelevant 'draft consent order' without further comment, 

Or paid the relevant fee for the Order. Is 'without consent' about £275?

bridgefixer

You cannot wait till the hearing in case it gets vacated!

I agree! I managed to send an email to the court in the morning stating that the "consent order" misrepresents my position, and the claimant should know it. I also shared my trial and authorities bundle via a Dropbox link (as the Court accepts that) and said that I will be bringing in my the hard copies of my documents. 

However, I'm planning to write a follow up email to the Court as advised above. To make sure they know I haven't agreed to the consent order, provide a little history of ELMS's behaviour with this case, and to ensure they have my trial bundles. I also going to the court tomorrow to hand in my bundles. 

Also, would it make sense to make a complaint to the Solicitor's Regulation Authority?

Coupon-mad

Galloglass said:

that the solicitors for the C have misled the court by sending an irrelevant 'draft consent order' without further comment, 

Or paid the relevant fee for the Order. Is 'without consent' about £275?

No not relevant, because the OP has paid the £275 application fee.  In the eyes of the court, if a genuine Consent Order then followed, the Judge would nod it through as part of the case and they would not ask for another fee.

This is what happened to a victim here in 2022.  Only the Consent Order wasn't genuinely consented to, it was a draft.  The Judge wrongly assumed it was signed/agreed just because it had the D's name at the bottom and it came from a firm of solicitors (Elms).

Exactly what they've apparently tried to do again here in this case.  I wonder how often this ruse works?

Also, would it make sense to make a complaint to the Solicitor's Regulation Authority?

I would, yes.

Johnersh

It needs a complaint of some sort. It can only ever be referred to as a consent order if the terms were agreed. Otherwise it risks confusion or misleading the court. The order sought (ie not agreed) is simply known as a draft order. 

bridgefixer

So, the binder has now been filed to the Court. Phew. Godspeed. 

Last night I sent an email to the Court stating 1. the Solicitors for the Claimant misled the Court by sending a document that's not agreed, and that this has led to unwanted outcomes as drafted by C-M, 2. the Claimant's order misrepresents the Defendant's position, and they should know this based on previous email exchanges, and 3. the Solicitors failed to file the Defendant's trial and authorities bundles as instructed by the Court while sending their own misleading consent order. 

Then, I put together a document to summarise the event, and emailed it to the Claimant's Solicitors and the Court, added to the Dropbox folder, and encouraged to get in touch if there is any problems accessing the document. I also placed it on the top of the pile in the binder.

I printed out the Claimant's consent order and annotated it. I crossed over the word consent, my name, and highlighted the points of order that haven't been agreed to (i.e. not agreed to keeping the thing alive on the small claims track and not agreed to no order to costs). I agreed to the Judgment to be set aside though. I wrote at the end of the document that I haven't agreed or consented to it, and that it misrepresents my position and misleads the court, and scanned it. Then, I wrote a separate note as a sort of cover note stating that: "The Solicitors for the Claimant filed a misleading consent order to the Court on 10 January 2023 without further comment. It is not an agreed document, nor will it be signed by the Defendant as described in the Defendant’s emails to the Court and the Claimant’s solicitors on 10 January 2023. The next two pages are printed copies of these emails." And I printed out the emails as pdf. Then, I compiled all documents together. The annotated document on the very top, and the cover note and copies of the emails after that. I hope that's enough of an audit trail to state my position and disagreement.

When I handed the binder in, the receptionist assured me that all documents will be read, as I tried to ask how to make sure the misleading consent order won't derail the process. One hopes so.

With the filing episode hopefully over (there's still few more days to go before the filing window closes and who knows ELMS Legal is up to), it's time prepare for hearing. It is provisionally listed on the coming Wednesday. For that I need to prepare the crib sheet and revise the civil procedure and authorities to make I will get my point across. Anything else?

I also drop a line to the Solicitor's Regulation Authority, and they replied as follows: 

----

We deal with cases where firms or individuals we regulate have breached our Principles and allegations of dishonesty or discrimination. You can send us a report if you have concerns about the conduct of a law firm or an individual we regulate.

What you need to do

Complete our report form and email it to report@sra.org.uk. 

Direct link to the form: https://www.sra.org.uk/globalassets/documents/consumers/report-solicitor-form.docx?version=4a5e99

---- 

To make the complaint stronger, it would be good to include other misleading consent order cases as well. How many there are and how could we get more details on those? You could add details below or message me directly.

bridgefixer

I had a hearing today. The CCJ was set aside (yes!), but unfortunately, the Judge kept the claim alive, instructing the Claimant to update the address and send the claim in 14 days, and after that, I'd have 14 days to file my defence, and the cost would be discussed in the next hearing.

VCS was represented by some local hire, and he did not know much about the contents of my case. He was instructed to talk through the points of the "consent" order. And that's what he did.

When I tried to argue that the forms were not served within 4 months, the Judge raised a point of how would I know? Perhaps they were served to the wrong address, but they were served, and the Claimant has 6 years to make a claim anyway. He sidestepped the point that claims forms and particulars should be properly served as represented in authorities - not sure if he had read my skeleton argument or any of the authorities. He kind of closed that point rather than being willing to hear why the case should have been struck out. Also, it was not considered that I never received any parking charge notifications etc. Then he asked a bit about my defence regarding the alleged contravention, concluded the case, and asked the Claimant's representative to draft the order and send it to him for review.

I didn't manage to get my point across or find the right words to make my line of argument stick. Somehow I should have found a way to drag the discussion to the skeleton argument and the line of argument presented there, that the documents were not properly served and that the court has no power to extend the time to serve the claim.

But the judgment has now been set aside, and that's positive

Thank you so much for helping with this case, especially Coupon-mad! I don't know what I would have done without your help!

On a more general note, before getting my CCJ, I'd have never guessed how many rabbit holes parking enforcement entails. Like poor data, disjointed systems, lack and disparity of information, and how much more difficult it is to get a default judgment entered than set aside. Once I have a bit more time, I might write a research paper around this, but for this, I'd need more data and information from the people who are more familiar with the process involved in parking enforcement.

Coupon-mad

That is good news!

- CCJ is wiped.

- Your costs are 'RESERVED' until the final hearing (new Judge probably!) so still in play.  MAKE SURE THE WRITTEN ORDER SAYS THIS RE COSTS

- You can now defend and win.

Well done...and I have to say I am not sure there was much else you could have said if faced with a surly old Judge who is set in his ways, has not read your authorities and always handles CCJ set asides this way, by keeping dead parking claims alive for Claimants.

I've been in front of some quite critical Judges and it's very uncomfortable.  I feel for you.  Like banging your head against a brick wall.

Come back when the claim arrives later this month (or indeed, if it doesn't) and PLEASE bookmark the top thread by MSE_JC and enable email alerts, so that you've read about and know about the Public Consultation when it opens.

Explained in that top thread in recent posts.  Your chance to change the law and stop all this from happening to people in future.  It's vital!

High volumes of 'real victim' responses wanting to cap parking charges much lower, and confirming a complete ban the fake +£60 or £70 add-on 'fees' is needed this Spring.