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

bridgefixer

Sounds good – that's what I'm going to do. 

One more thing: The particulars of the claim are very superficial. It says that terms and conditions were clearly displayed, but there is no pictures or anything like that included. And in the PCN, pictures show only a little bit of the car's front and the registration number. Is this all they are going to bring to the hearing, or can they amend they claim and documents during the process in response to my defence?

The SAR revealed more, something that was not very good in terms of their particulars. 

Coupon-mad

They will send a witness statement bundle too, so yes you will see the evidence before the hearing.

Unless they hurriedly discontinue the claim and try to walk away, but you want your costs, which is why the end of the Template Defence covers that and why it is vital that you carefully read & check that the written Order (the minute it arrives) 'reserves' your costs and is not silent about them.

bridgefixer

I received the written order and directions yesterday. 

The original texts are copied below, and I read the order and directions correct, I need to file and serve a defence (1 document called Defence) to the claim within 14 days of the receipt of the claim form. All other documents on which that party intends to rely must delivered no later than 14 days before the hearing. The hearing date will be informed later. 

So, I plan to proceed as follows. Let me know if I'm heading a right direction. 

Filing and serving a defence: I will use the template defence (from thread Template defence to adapt for all parking cases where they add false admin costs) and adapt it to my circumstances, and file only that one document within 14 days to the Court and the Claimant. 

My bits (points 2 and 3) will cover no clear and visible signage, failure to use the provided address, negligence and unreasonable behaviour, and the Defendant’s disproportionate cost burden. I would then include the rest of the template points after that. Will post my draft defence later today/tomorrow.

Delivery of all other documents: I assume all other means here a witness statement, exhibits, skeleton argument, case summary, and a schedule of costs. I’ll draft these along with the defence, but I can finalise them later and file and serve them once the hearing date is listed, as long as I do that at least 14 days before the hearing. 

And for costs: There is not a word about the reservation of costs to a later stage. So, I need to call the Court and ask if and how the reservation of costs could be included in the order.

The texts as written on the letters are below. 

IT IS ORDERED THAT

1. The Judgment against My (misspelt) Name dated 5 April 2022 be and is hereby set aside.

2. The Claimant is to file and serve an amended claim form with the Defendants correct title, that actually being "XY" not "ZM" as is on the original claim form, and to serve this on the Defendants current address within 14 days.

3. The Defendant is to file and serve a defence to the claim within 14 days thereafter

4. The claim is adjourned to the first open date after 28 days with a time estimate of 90 minutes, parties to attend

5. The matter is to be allocated to the Small Claims Track upon filing of the Defendants defence

6. The Court is to send out standard Small Claims Track directions in due course

THE ATTACHED DIRECTIONS

District Judge Devlin considered the statements of case and directions questionnaires filed and allocated the claim to the small claims track.

Warning: you must comply with the terms imposed upon you by this order otherwise your case is liable to be struck out or some other sanction imposed. If you cannot comply you are expected to make formal application to the court before any deadline imposed upon you expires.

1) This Claim is allocated to the Small Claims Track and the parties are referred to Part 27 of the Civil Procedure Rules and the Practice Direction of that Part for guidance on how the hearing of the claim will be conducted.

2) The claim will be heard at the County Court at Oxford, St Aldates, Oxford, OX1 1TL on a date and at a time which will be sent to you later. The Court reserves the right to change the place and/or time of the hearing.

3) From the available papers, it is estimated that the hearing will take 90 minutes. If a party is aware of a reason why this estimate might be substantially inaccurate, that party must notify the court immediately.

4) The parties are encouraged always to try to settle the case by negotiation. The parties are encouraged to contact each other with a view to trying to settle the case or narrow the issues. The court must be informed immediately if the case is settled.

5) The following paragraphs set out the Judge's directions for preparation for the hearing. Failure to comply with the directions may result in the case having to be adjourned and the party at fault having to pay costs. The following Directions apply to this Claim:

6) Each party must deliver to the other party and to the court office copies of all documents on which that party intends to rely at the hearing no later than fourteen days before the hearing.

7) The original documents must be brought to the hearing.

8) The Judge may refuse to consider a document or take it into account if a copy of it has not been sent to the other party as required by this Order.

9) The documents to be sent to the other party and the court must include the statements of all witnesses (including the parties themselves).

10) Witness statements must:

a) Start with the name of the case and the claim number;

b) State the full name and address of the witness;

c) Set out the witness's evidence clearly in numbered paragraphs on numbered pages;

d) End with this paragraph: 'I believe that the facts stated in this witness statement are true.' (or words to that effect); and

e) be signed by the witness and dated.

11) If a witness is unable to read the statement in the form produced to the court, the statement must include a certificate that it has been read or interpreted to the witness by a suitably qualified person. If a witness who has made a statement is to give evidence or be cross-examined and is unable to do so in spoken English (or Welsh if the hearing is in Wales), the party relying on that witness must ensure that a suitable independent interpreter is available. 

12) The judge may refuse to hear the evidence or consider any statement of any witness whose statement has not been prepared and copied to the other party and the court in accordance with the paragraphs above.

13) Neither party may rely at the hearing on any report from an expert unless permission has been granted by the court beforehand. Anyone wishing to rely on an expert must write to the court immediately on receipt of this Order and seek permission, giving an explanation why the assistance of an expert is necessary.

14) Because this Order has been made without a hearing, the parties have the right to apply to have the order set aside, varied or stayed. A party making such an application must send or deliver the application to the court (together with any appropriate fee or an application for help with fees) to arrive within seven days of service of this Order.

Coupon-mad

And for costs: There is not a word about the reservation of costs to a later stage. So, I need to call the Court and ask if and how the reservation of costs could be included in the order.

Nope.

You must email and ask for the Order to be varied to reflect the fact that your £275 costs were 'reserved' at the first hearing.  This cannot be missed off the Order, or your costs fall away, which was not the intention of the learned Judge.

bridgefixer

Yep, will email the Court. I emailed them last Friday (20 Jan), but I haven't received any reply to that mail. That's why I was about to call them, just check if they received it and how should I address them.

I drafted the following letter and will send it out by Monday. 

I am writing regarding Claim XYZ and the Order dated 18 January 2023. I received the Order and Directions by mail on 26 January 2023. 

Upon reading the Order, I noticed the Order did not include an order to ‘reserve’ the Defendant’s costs. 

Therefore, I am asking the Order to be varied to reflect the fact the Defendant’s costs were 'reserved' at the first hearing. 

Once the Judge had ordered the Judgment been set aside and instructed the subsequent steps, the Defendant asked if the Claimant will be ordered to pay his costs following the set-aside order. The costs include £275 application fee and other costs as detailed in the Defendant’s trial bundle.

The Judge responded the costs would be considered in the subsequent hearing where the merits of the underlying claim will be examined, once all relevant matters have been considered and the final balance of payments has been established.

The reservation of cost cannot be missed off the Order. Otherwise, my costs fall away, which was not the intention of the learned Judge.

Should you have any questions or further directions, I will respond without delay.

Coupon-mad

The learned Judge...

bridgefixer

I sent an email regarding the variation of the written order, and I received this helpful (not) reply. 

"With reference to your email below the Order dated 18 January 2022 was drawn as directed by the District Judge. Should you want to apply to have it amended a formal application on a N244 Form plus the payment of the required application fee is required."

To ensure the reservation of cost, I'd need to need to fill in N244, and pay some money. Although, I'm not sure how much. It seems somewhere between £59 and £275. Maybe I call them tomorrow to get some details. 

In the meanwhile, I've been working on my defence and will post it later today. 

bridgefixer

I've drafted now my defence, or the parts that would go the points 2 and 3 of the template defence. 

It turned out a little long, but it covers the points I'd like to say. I'm not entirely sure what the defence is supposed to look like, and how much description, evidence, and legal points are needed at this stage. My understanding is that these points can be expanded later when the rest of documents are filed and served. 

I presume much of that is covered in the template defence's generally applicable paragraphs, but let me know if you think there's something I'd need add or take a look into. 

Defence 

Background

1.     It is admitted that the Defendant was the driver of the vehicle in question. The Registered Keeper of the vehicle was Hertz, a car rental company.

2.     The Defendant arrived at his new home using a rental car, late in the evening when it was already dark. The Defendant parked the vehicle by the site’s main entrance, close to the building’s wall and outside a parking bay not to use someone’s space without permission. The car was due to be returned in the morning.

 3.     The defence below refers to details as set out in the Particulars of the Claim, the information provided by the Claimant as a response to the Defendant’s subject access request, and the Defendant’s observations of the site of the alleged contravention.

4.     The Claimant states in the Particulars “the claim is for a breach of contract for breaching the terms and conditions set on private land.” The Defendant denies each and every allegation, for the reason set out in this Defence, the Claimant is not entitled to any relief. 

 No clear or visible signage, no basis for contract

5.     The Particulars state the Defendant is “in breach of the advertised terms and conditions; namely parked in a restricted / prohibited area,” which “were clearly displayed at the entrance and in prominent locations”, and “the sign was the offer” to enter into a contract. 

6.     The Defendant contests these statements; there was no clear or visible signage, nor the sign, that could have been construed as an offer to enter a contract. As will be detailed in the Defendant’s Witness Statement and Exhibits, there was no clear signage that was visible at the entrance or from the location where the car was parked. The picture of the sign included in the subject access request response shows the sign is located at the back of the U-shaped site, facing towards the back of the site; it cannot be seen from the entrance or from where the car was parked. Moreover, if the Defendant would have been able to detect a sign at the time of parking, the lack of appropriate lighting and small text would have rendered the terms and conditions unreadable in the dark. 

7.     The Claimant must have also found the signage wanting; since the alleged contravention, the Claimant have significantly improved the site’s signage, adding new signs by the entrance and around the site. The Defendant noted this when documenting the location of the sign submitted in response to the Defendant’s Subject Access Request. This suggests the Claimant has been aware of inappropriate signage.

8.     The Particulars further state “The sign was the offer and the act of entering private land was the acceptance of the offer hereby entering into a contract by conduct.” The Defendant contest this statement. There was no signage that could have been construed as an offer to enter into a contract, and therefore the Defendant could not have been entered into a contract by conduct. In any case, the Defendant would have declined any such offer by parking elsewhere. The purported contract does not exist because the Defendant never agreed to or entered into it, and there is no contractual foundation for the alleged breach. 

The Claimant failed to use the driver’s current address despite having it from day one 

9.     The Particular’s claim “the defendant has failed to settle,” but the Defendant disagrees with this. The Claimant sent the parking charge notice and all other correspondence to a wrong address, even if they had the driver’s current address all along. Therefore, instead of having ‘failed’, the Defendant was never given any opportunity to appeal, engage with, or settle this matter, because he was never informed about it to begin with. 

10.  On the day of the alleged contravention, the Defendant identified himself as the Driver and emailed his current address and contact details to the Claimant immediately. The Claimant acknowledged the receipt of the address and contact details three days later, a day before beginning queries to the DVLA database or deciding to approach the Registered Keeper.

11.  Regardless of having the Driver’s name and current address, the Claimant used DVLA database and pursued the Registered Keeper against the stipulations of Schedule 4 of the Protection Freedoms Act 2012. In response, the Registered Keeper gave the Claimant an incorrect address. The Claimant did not question why the two addresses were different, nor did they try to clarify with the Defendant which of the addresses should be used. They simply proceeded to send all subsequent correspondence (a parking charge notification, demand of payment, final demand, and letter before claim) to the wrong address. 

12.  The wrongly addressed letters went unanswered, yet the Claimant failed to verify the address by consulting their own records or, alternatively, using a soft trace credit check to make sure the address from the Registered Keeper was valid. Instead, they kept sending letters to an unresponsive address. 

13.  The Defendant’s alleged ‘failure to settle’ is a direct consequence of the Claimant’s negligence and failure to use the current address and contact details provided at the earliest opportunity. The Defendant was simply never given any opportunity to deal with this matter in a timely and appropriate manner, as detailed in the set-aside hearing bundle. The Claimant had all relevant details at hand should they have just chosen to use them. 

14.  The Claimant’s failure to use the Driver’s current address or to verify the validity of the address obtained from the Registered Keeper without a legitimate reason amounts to negligence. 

The Default Judgment and the Claimant’s unwillingness to help resolve the matter

15.  Since the parking charge notice and demand letters sent to the wrong address did not generate any response, the Claimant started the County Court proceedings against the Defendant. The Claimant did not verify the address’s validity, and the Claim was issued using the wrong address. The Claim Form never reached the Defendant, and a default Judgment was entered. He did not file a defence because he was unaware of the proceedings.

16.  The Defendant learned about the Judgment from a debt collector’s letter. To correct the error, he approached the Claimant and their Solicitors, asking for a set aside with consent because the events had taken a drastically wrong course for an address error. The Claimant chose not to reply.

17.  Following the Claimant’s non-response, the Defendant submitted an appeal for a set aside without consent. the Judgment was set aside in the set-aside hearing because the Claim Form was never served. 

18.  Having the Judgment set aside without consent required a significant investment of time and money on the Defendant’s part. 

The Claimant’s solicitor's misleading consent order and filing irregularities

19.  In preparation for the set-aside hearing, the Solicitors for the Claimant filed a misleading document titled ‘Consent Order’, misrepresenting the Defendant’s position. Once the set-aside hearing was listed, the Solicitors approached the Defendant proposing an agreement. Because the proposal went against the Defendant’s interests, he expressed his disagreement – not consenting to the proposed order. However, for some reason, the Solicitors still drafted a document called ‘Consent Order’ (prefaced with the text “Upon the Parties having consented and agreed to the terms set out below: -” and the Defendant’s name and address typed under the ‘consented’ points) and sent it to the Court without further comment.

20.  The Court’s listing letter instructs that the Claimant shall file all documents for all parties, unless agreed otherwise. Following the instructions, the Defendant informed the Solicitors he would share his documents so that they could file them. Once the Defendant had shared his materials with the Solicitors, they filed only one document to he Court, and that document was the misleading consent order described in the previous paragraph. In doing so, they left Defendant’s documents unfiled and acted against the Court’s instructions. 

21.  Upon noticing the filing irregularities, the Defendant informed the Court the consent order misrepresented the Defendant’s position and filed his materials without delay. The Claimant’s failure to follow the Court’s filing instructions and the filing of a misleading consent order amount to unreasonable behaviour, if not outright misconduct.

Disproportionate accumulation of burden and costs on the Defendant

22.  The Claimant’s negligence and unreasonable behaviour throughout the process have generated a disproportionate burden and costs to the Defendant. 

23.  The costs of rectifying the errors that derive from the Claimant’s negligence and behaviour are disproportionate to the Defendant. The Claimant’s failure to use the correct address prevented the Defendant from lodging an appeal according to the Claimant’s appeals process and dealing with the purported charge in an appropriate and timely manner. The Claimant’s error and negligence with the Defendant’s address details ultimately led to a Default Judgment that was wrongly entered and thereby set aside. The Defendant tried to engage with the Claimant to resolve the matter but without success. Consequently, the Defendant was forced to spend significant amount of time and money to craft a successful appeal, as detailed in the set-aside hearing bundle.

24.  For the set-aside hearing, the Solicitors for the Claimant filed a misleading ‘Consent Order’ whilst failing to file the Defendant’s materials. This amounts to unreasonable behaviour, if not outright misconduct, and the Defendant was forced to rectify the error.

25.  The demanded charges have increased disproportionately through the process. Four letters were addressed to the Defendant, albeit to a wrong address. By the second letter, the initial charge of £100 (discounted to £60 if paid within 14 days) went up to £170, which seems to far outpace the actual costs of sending another letter. it is unclear to the Defendant how the costs have accumulated, what costs have been added and why. The third letter reiterates the demand of £170 

26.  The fourth letter, the Letter before Claim, indicates the Defendant will also be held liable for £35 of Court fees and the interest, (“Calculated in accordance with relevant County Court rates at 8% per annum, 0.02% daily.” -> 8% per annum for £170 for a year is approximately ~£14). Put together, the sums as presented in the fourth letter would total at £219. 

27.  As per the Particulars, “the claimant seeks the recovery of the parking charge notice, contractual costs and interest”, and the Claim totals at £277, composed of £170.00 of debt (and interest to the date of judgment) and £107.00 for costs. It is not clear at all why the Claim sets the total ~£60 higher than the Letter before Claim.

28.  It is unclear to the Defendant how the costs have accumulated, what costs have been added and why. The information above was obtained through the subject access request. The Claimant has not provided any other paperwork, calculations, or justification for the added costs, which seem penal and appear to far exceed the costs that derive from the recovery of the purported charge.

29.  Overall, whereas the Claimant has aggressively raised the charges and demands throughout the process, the Defendant bears a burden and cost of rectifying the matters that derive from poor signage, negligence with address details, unresponsiveness, unreasonable behaviour, and filing irregularities.  

30.  The Defendant asked the Judge about the recovery of £275 application fee and other related costs after the Default Judgement had been set aside, and the Judge said that the final balance of payments would be established in the final hearing once all relevant elements had been considered.

B789

OP, in any future replies, you only need to show the changes you made to para's 2 and 3 and anything else YOU added. The rest of the template defence does not need posting.

KeithP

B789 said:

OP, in any future replies, you only need to show the changes you made to para's 2 and 3 and anything else YOU added. The rest of the template defence does not need posting.

I think that's what @bridgefixer has done.
It does seem rather long, and perhaps a lot of it should be saved for a Witness Statement, but I don't recognise any of his latest post as being from the template.