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

bridgefixer

KeithP said:

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.

It's indeed all written by me, and it's on the long side, and some of the details could go to the witness statement.

I'm just not sure exactly where to put the boundary as I feel I need to explain the whole sorry saga to make the case for unreasonable behaviour and misconduct. 

Is there any downside if the defence is too long or contains too many details? As most of that would be in any case be included in the witness statement and exhibits with even more detail... Or would I be revealing too much to the Claimant at this stage? 

Le_Kirk

Keep the defence to a series of short, punchy legal/technical arguments, outlining the reasons why you refute what is claimed in the POC.  Then you go to town on it in the witness statement, supporting and backing up, with evidence, what you put in the defence.

bridgefixer

Le_Kirk said:

Keep the defence to a series of short, punchy legal/technical arguments, outlining the reasons why you refute what is claimed in the POC.  Then you go to town on it in the witness statement, supporting and backing up, with evidence, what you put in the defence.

Thank you for the advice. I'll shorten my descriptions/reasons and try to make then bunchier. Will also include the rest of the template defence, and arrange them around my points, and add legal arguments where I can. 

I need to file and serve latest tomorrow, so let's see how far I can get. I don't have much time right now, so it may not turn out to be as neat as it could or should be. But at least it should get me to the next stage... I'm unlocking new levels. 

Le_Kirk

I would make them "punchier" not "bunchier" and make sure you don't miss your deadline but what "legal arguments" are you going to add that aren't in the template?

bridgefixer

It's much punchier now, although still on the long side. 

For "legal arguments", I was considering if I should add about CPR 44 regarding the disproportionate costs. The template includes CPR 46 for misconduct though. I also added about POFA (Schedule 4 of the Protection of Freedoms Act 2012 5(1)(a)), as that's relevant to me. But all the rest regarding the signage, contracts, and escalation of demands is there.  

And I can presumably improve all this when I submit witness statement and skeleton argument. 

---- 

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 the site of the alleged contravention 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 anyone’s space without permission. 

3.     This defence refers to details as set out in the Particulars of Claim, in the Claimant’s response to the Defendant’s subject access request, and based on the Defendant’s observations about 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 that would serve as a basis for a 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 and the act of entering private land was the acceptance of the offer hereby entering into a contract by conduct.” 

6.     The Defendant contests these statements; there was no clear or visible signage that could have been construed as an offer to enter into a contract. There was no clear signage that was visible at the entrance or from the location where the car was parked. Should the Defendant been able to detect a sign, the lack of appropriate lighting and small text would have rendered the terms and conditions unreadable in the dark. The purported contract does not exist and there is no contractual foundation for the alleged breach. 

7.     The Claimant has also found the signage wanting; since the alleged contravention, the Claimant has significantly improved the site’s signage, adding new signs by the entrance and around the site.

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

8.     The Defendant contests the statement “the defendant has failed to settle.” To correct this, it is the Claimant who failed to inform the Defendant of the parking charge notice or any subsequent court proceedings in the first place. Even if the Claimant had the Driver’s name and current address, and they acknowledged having received it directly from the Defendant on the day of the alleged contravention, the Claimant opted to send all correspondence to an invalid address. The Claimant’s negligence has deprived the Defendant of any opportunity to engage with this matter in a timely manner. 

9.     The Claimant had no right to contact the Vehicle’s Registered Keeper, who gave them an invalid address in response. Schedule 4 of the Protection of Freedoms Act 2012 5(1)(a) states the creditor’s right to claim unpaid parking charges from the registered keeper of the vehicle applies only if the creditor “is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.” As the Driver’s name and address were known all along, the Claimant had no right or any other reason that could explain their decision to pursue the Registered Keeper.

10. The Claimant has also failed to carry out any basic due diligence. First, they failed to question why the addresses provided by the Defendant and Registered Keeper were different. They could have contacted the Defendant to check which one of them should be used. Second, when their letters went unanswered, they failed to verify the validity of the address. This could have been easily done by either consulting their own records or running a soft-trace credit check. 

The wrongly entered Default Judgment and set-aside without the Claimant’s consent

11. The Claimant started the County Court proceedings using the wrong address, which led to a Default Judgment because the Claim Form never reached the Defendant. Upon learning of the Judgment, the Defendant approached the Claimant and their Solicitors asking for a set-aside with consent because the Judgement was wrongly entered. The Claimant and their Solicitors chose not to reply. 

12. The Claimant’s unresponsiveness seems unreasonable, considering that the Judgment transpired from their failure to use the address they had all along. The Defendant was forced to draft and submit an appeal without consent. The Judgment was set aside once the facts had been examined. Overturning the Judgement required a significant investment of time and money on the Defendant’s part. 

The Solicitors for the Claimant filed misleading document for the set-aside hearing

13. Before the set-aside hearing, the Solicitors for the Claimant filed a misleading ‘Consent Order’ to the Court. Even if the Defendant had expressed his disagreement and not consented to the proposal, the Solicitors drafted a document that misrepresented the Defendant’s position and filed it to the Court without further comment.

14. The Solicitors for the Claimant failed to file the Defendant’s trial bundle, thus not following the Court’s instructions. Once the Defendant had shared his materials with the Solicitors, they proceeded to file only one (1) document to the Court. They filed the misleading consent order (see previous paragraph) but not the Defendant’s materials. 

15. The Solicitor’s behaviour is unreasonable, if not outright misconduct. The Defendant informed the Court about the filing irregularities without delay.

The Defendant’s disproportionate burden and costs to rectify the errors and negligence

16. The Defendant carries an excessive burden to rectify the matters that originate from the poor signage, negligence with addresses, unresponsiveness, and filing irregularities leading up to the set-aside hearing. The Claimant’s unreasonable behaviour has forced the Defendant to spend a disproportionate amount of time and money to resolve the matter. 

17. The Claimant has aggressively escalated the demands. The initial £100 (discounted to £60 if paid within 14 days) went up £170 by the second letter, whereas the fourth letter, the Letter before Claim, put the costs at ~£219 (incl. £35 Court fees and interests), yet the Claim itself totals at £277. The demands seem penal and appear to far exceed any actual costs. It remains unclear what costs have been added and why. The letters obtained through the subject access requests do not provide such information. 

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

Coupon-mad

Yoyr defence draft has buried this vital fact and doesn't explain it:

"As the Driver’s name and address were known all along,"

You need to explain that earlier (concisely).

You could remove 3, which says nothing useful, and put the facts (about the C knowing the name & address of the driver at the outset) as #3 instead.

Also remove 10-17 because there's no need to go over the old ground that supported your set aside case.  You could cover it briefly in your WS, which I would recommend you also do now and present the entire bundle - with exhibits, the lot - to the local court (and claimant's solicitor) in one go.

This is because I gather you've already passed the first hearing and are now being asked for a defence.  You will never be asked for a WS & evidence, if this now plays out as we've seen cases proceed after a CCJ set aside.

Local courts seem to (usually) miss that stage out, assuming that the previous paperwork submitted with your set aside WS is enough.  But it's not fair and not enough!  So send the whole bundle with your defence, so it can't be refused. 

Use the WS bundle example by @aphex007

bridgefixer

Thank you @Coupon-mad!

I've already had the first hearing. And I've got the Court's directions to file and serve a defence within 14 days, and then "all documents on which that party intends to rely at the hearing no later than fourteen days before the hearing", and the hearing is yet to be listed. It seems there's still time to file and serve the witness statement, exhibits, and skeleton argument, and I haven't had a chance to finalise them yet. So I'll submit them later, hopefully early next week. 

Regarding the suggestions above: 
- I replaced 3 with the "address was know all along" explanation
- For 10 to 17: I included them to highlight the Claimant's unreasonable behaviour and/or misconduct, as that might influence if/how costs are ordered (with respect to CPR 44 and 46). But perhaps they should go to the witness statement as long as indicate that in my defence. 

It's yet to be seen what happens with the costs. The Judge didn't 'reserve' the costs then in the Order, even if we  discussed them in the hearing. I emailed the Court (twice) about it and they told me make N244 for variation and pay some more fees. Then I asked by email how much and where to send the money, but they haven't replied. I haven't had time to follow it up, so I'm not sure money they want, and the variation deadline is getting close if not already passed. That's why I added the sorry process and cost accumulation in the defence, even if it probably shouldn't be there. 

bridgefixer

To add to the post above, I cut out pretty much all of 10 to 17. But I kept one very brief paragraph to reference to Claimant's  unreasonable behaviour and the Solicitor's misleading consent order. 

On costs, are CPR 44.11 and 44.3 covered by the template defence's wording "for a finding of unreasonable conduct by this Claimant, seeking costs pursuant to CPR 46.5?" 

CPR 44.11 refers Court’s powers in relation to misconduct, and it could apply to my case, because the Solicitors filed a misleading consent order (improper conduct) and failed to comply court order (filing irregularity).

Also, should I mention 44.3 and the indemnity basis, as the costs are disproportionate to me? 

----
CPR 44.11

(1) The court may make an order under this rule where –

(a) a party or that party’s legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order; or

(b) it appears to the court that the conduct of a party or that party’s legal representative, before or during the proceedings or in the assessment proceedings, was unreasonable or improper.

(2) Where paragraph (1) applies, the court may –

(a) disallow all or part of the costs which are being assessed; or

(b) order the party at fault or that party’s legal representative to pay costs which that party or legal representative has caused any other party to incur.

(3) Where –

(a) the court makes an order under paragraph (2) against a legally represented party; and

(b) the party is not present when the order is made,

the party’s legal representative must notify that party in writing of the order no later than 7 days after the legal representative receives notice of the order.

----

Galloglass

What is the test for unreasonable behaviour? Doesn't the test need to be met or quoted or explained before such costs are awarded?

This one I have seen been quoted before but not sure if it has been superseded.

Unreasonable" also means what it has been understood to mean in this context for at least half a century. The expression aptly describes conduct which is vexatious, designed to harass the other side rather than advance the resolution of the case, and it makes no difference that the conduct is the product of excessive zeal and not improper motive.

But conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently. The acid test is whether the conduct permits of a reasonable explanation. If so, the course adopted may be regarded as optimistic and as reflecting on a practitioner's judgment, but it is not unreasonable.

Ridehalgh v Horsefield & Anor [1994] EWCA Civ 40

bridgefixer

Galloglass said:

What is the test for unreasonable behaviour? Doesn't the test need to be met or quoted or explained before such costs are awarded?

You are right in that what counts as unreasonable should be introduced and explained to make a proper case for it. I had a quick look at the CPR and test earlier, but I just didn't have time to do a proper with it.

I submitted my defence with the template cost clauses. I may add more on the unreasonable behaviour and costs when I prepare the rest of documents, assuming I'm allowed to add/extend on those points. But that's for the next round.

Over the past few days, I've received letters from VCS themselves. This week they served the amended claim form by mail and email, and stated the address to which all documents need to served. So I served by email and mail to be on the safe side.

Then, today they informed ELMS is out and all documents should go to VCS. They also very kindly offered to settle the case if I pay them £195 I may not accept their offer.