Bailiff Knocked on the door yesterday

JacksSon

trying to formulate (in official manner) few thoughts and struggling

JacksSon

right, so on 9th i've sent my WS to claimant and court. 

JacksSon

I,******** , will say as follows:  

1. I am the Defendant in this matter and I make this witness statement in support of my response pack previously registered as the County Court Judgment (CCJ) entered against me on 20 October 2022, in default due to a defective service of Claim.  

2. The Claimant served the claim to an old address. The Claimant's representative had traced and indisputably held my new address, because they had used it for multiple Letters before action in 2022. To then revert to a known to be out of date address is a clear breach of  both the CPRs and the industry Code of Practice.  These facts and issues are explained further, below. 

3. The Claimant had a duty to take reasonable steps to check for the correct address, in accordance with the IPC Code of Practice 22.1 and CPR 6.9.  

4. I have not received any claim form or detailed particulars of the claim regarding this matter until I became aware as per paragraph 2 above.  

5. I believe that I have a strong defence to the claim, and should it not be dismissed despite the wealth of case law below that supports the claim being dismissed at  County Court hearing, I should (at the very least) have the opportunity to defend it properly.  My application relies upon the declaring the unserved claim to be expired and thus, time barred and as such, I am disputing the jurisdiction of the court to dispense with service and allow the claim to continue, this application also relies upon CPR 11 (but due to the lack of service, I cannot also acknowledge service, which that rule assumes a defendant can). In addition, I further rely upon CPR 16.4(1)(e) and 16PD3 and 16PD7, because I say that the expired POC fail to "state all facts necessary for the purpose of formulating a complete cause of action".  More detail follows below. 

6. The Claimant inexplicably doubled the original costs and court time wasted, despite the fact that County Court at ******* has cancelled the Judgement by order dated with 16th October 2023.

 

THE CLAIMANT FAILED TO SERVE THE CLAIM  

7. I understand that the Claimant has filed a Claim against me as the Defendant. I am aware that the Claimant is Highview Parking Limited and that the assumed claim is in respect of 3 unpaid Parking Charge Notices.  

8. CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence."  As I have had multiple correspondence in relation to a different case, I am unsure of the specific dates that the claim was made. Nonetheless, it is clear that the Claimant, having obtained a previous address from the DVLA and having received no response, did not perform the requisite "reasonable diligence" required to find my correct address to serve the claim form in. Had reasonable diligence been taken, my personal details are found in multiple public sources, such as the electoral register, DVLA, HMRC. The claimant did not have any contact with the defendant, and thus should have considered they had obtained incorrect details. It appears that the claimant continued to issue correspondence to the incorrect address intentionally, in line with the concerns raised by the government regarding this abhorrent industry

9. According to publicly available information, my circumstances are far from unique. The industry’s persistent failure to use correct and current addresses of results is an unnecessary burden for individuals and the justice system across the country.  

10. The Claimant has failed to serve the claim against me the defendant ordered by Judge ****** at County Court at ********* dated with 16th October 2023. The claim exceeded the time limit for the claim and particulars of claim to be served to Defendant within 7 days from Court Order (paragraph 4 of County Court at ******** Order “EXIBIT 1” and Correspondence in “electronic bundle”)

 

THE INTERNATIONAL PARKING COMMUNITY CODE WAS NOT FOLLOWED  

11. International Parking Community (IPC) Code of Practice which requires a soft trace to be undertaken was not followed. The IPC Code of Practice 2019 - Version 7, November 2019, clause 22.1 states;

 

12. Operators must take reasonable steps to ensure that the motorist’s details are still correct if 12 months have passed from the Parking Event before issuing court proceedings”  

DVLA ADDRESS DATA MAY NOT BE RELIABLE  

13. DVLA data is provided for a single (very limited) reason, so a parking operator can invite the registered keeper to name the driver or pay the invoice or inform the registered keeper they will be liable if not, and notify of appeal rights.  

14. The system, called 'KADOE' (Keeper On Date of Event), is a brief 'snapshot in time' address to enable a parking firm to send a Notice to the registered keeper. Operators are only allowed to ask the DVLA once, hence the code of practice requires reasonable steps are taken to check address details are current before litigation. Even if a motorist later updates a VC5 logbook with a new address (or if the DVLA fails to process a change in a timely manner, which is reportedly common) a parking operator will not know, nor be able to find that out.  

15. There is no safe presumption that a DVLA vehicle address is a valid address where a Defendant can be served. The KADOE address is not provided as a 'court claim service address' and should not be relied upon, as it is only an address where the vehicle was kept at a historical point in time (which may not be where the keeper lives; it is where the car was 'kept').  

16. There is a wealth of case law making reference to the failures of parking companies to correctly ascertain the addresses of defendants. Of note:  

17. In Collier v Williams [2006] 1 WLR 1945 (CA) LJ Dyson said:  
  "What state of mind in the server is connoted by the words "last known"? … As we have said, there is an important distinction between belief and knowledge. It is a distinction particularly well understood in the criminal law, but elsewhere too. The draftsman of the rules deliberately chose the word "known". In our view, knowledge in this context refers to the serving party's actual knowledge or what might be called his constructive knowledge, i.e. knowledge which he could have acquired exercising reasonable diligence. We arrive at this conclusion on the basis of what we understand the words to mean. We do not believe that there are any policy reasons which require us to give the words a strained or unusual meaning. The risk of satellite litigation is inherent in whatever interpretation is adopted. It is true that a defendant who has not in fact received the claim form should have no difficulty in setting aside a default judgment. But it is not desirable that defendants should be put to the trouble and expense of making applications to set aside default judgments."  
  
18. The same sentiment was echoed by:    
HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)  and
HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012) , it would appear that obtaining the information from a source that an individual is required by law to keep updated is adequate knowledge. However, i would submit that it is incumbent to have recent knowledge and not outdated knowledge as HHJ Hacon put it in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014).

 As it was put in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016) by LJ McCombe : 
   “If a defendant has never become under a valid obligation to acknowledge service, either as specified under the rules or by order of the court, I do not see how it can be that a judgment can be entered against him in default of such acknowledgment. He is simply not in default at all."  

  

 

 

 

THE CLAIM HAS EXPIRED UNSERVED

I HEREBY CHALLENGE THE JURISDICTION OF THE COURT TO HEAR IT NOW (EFFECTIVELY THAT WOULD MEAN DISPENSING WITH SERVICE). THERE ARE NO EXCEPTIONAL CIRCUMSTANCES TO SUPPORT THE VERY LIMITED COURT DISCRETION TO RETROSPECTIVELY VALIDATE DEFECTIVE SERVICE BY RESURRECTING AN EXPIRED AND UNSERVED (AND HOPELESS) CLAIM.

19. Service of the claim form on an old address constitutes defective service and the claim has expired unserved.   The Claimant currently has no claim because it was not properly served within the timeframe specified by County Court at *******.

20. Continuing an expired unserved claim more than 11 months after it was raised (but never properly served) is impossible under any rule of law or practice (CPR 7.5 and as a result this claim has expired unserved). 

21. The Claimant should not be given extra opportunities to waste the Court’s time after failing to follow pre-action protocols for debt claims, breaching the IPC code of practice and the CPRs about taking 'reasonable steps' (CPR 6.9) to check a Defendant's address.  

22. This claim should be struck out as more than 11 months have passed (CPR 7.5 refers) from issue of proceedings [date] and service of the claim was defective (i.e. it was never served).  

23. A Court's discretionary power to validate a defectively served claim is very limited, and only applies where there is ‘good reason’ for the court to exercise the power so conferred.  There is no ‘good reason’ to retrospectively validate the claimants’ service under Rule 6.15.  Further, whilst Rule 6.16 does create a power for a court to dispense with service of the claim form, this only applies in 'exceptional circumstances' and this does not apply in my case.

24. In IDEAL SHOPPING DIRECT LTD & ORS V MASTERCARD INCORPORATED & ORS [2022] EWCA CIV 14, the Court of Appeal upheld a High Court decision that the claimant had not validly served proceedings and there were no good reasons or exceptional circumstances for the court to indulge the erring Claimant by granting a retrospective order validating the attempted service.

 

25. Held: CPR 3.10 (General power to rectify following error of procedure) did not enable the court to rectify ineffective service of the claim form and remedy the claimants’ error. That rule should not be used to get around service requirements and the claimants also did not satisfy the requirements under CPR 6.15 or 6.16. Following the approach in Piepenbrock v Associated Newspapers Ltd [2020] EWHC 1708 (QB) ([69]), having considered all the circumstances under rule 6.15, and finding no ‘good reason’, in Ideal Shopping Direct there were similarly no grounds to find the ‘exceptional circumstances’ required under rule 6.16. , correct the requirements of CPR 12.3(1)(b) have not been satisfied.

 

 

 

CLAIMS SHOULD BE STRUCK OUT  

26. In the alternative: the claim should be struck out regardless of the above other abusive conduct, because the POC fail to comply with Civil Procedure Rule 16.4(1)(e) and Practice Direction Part 16.7.5.

27. The Claimant inexplicably doubled the costs and court time wasted, despite the County Court at ***** Order.

 

28.The Claimant failed to Serve the Claim and particulars within 7 days given by Judge **** on 16th October 2023

 

 

 

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.  

JacksSon

and claimant has filed an additional statement mid day today

JacksSon

• 
  
  On behalf of the Claimant
  
  
  Statement no. 2
  10/09/2024
  IN THE COUNTY COURT AT 
  BETWEEN: -
  HIGHVIEW PARKING LIMITED
  CLAIMANT
  -V -
  
  
  DEFENDANT
  THE FIRST WITNESS STATEMENT OF **********
  I, ************, , London, , state as follows:
  1. I am employed by Highview Parking Limited (“my Company”). I am duly authorised to make this
  Statement on my Company’s behalf.
  2. I make this Statement in support of the Claimant’s Claim, in response to the Defendant’s Witness
  Statement and in support of my First Witness Statement.
  3. The facts and matters set out in this statement are within my own knowledge unless I state otherwise.
  I believe them to be true. Where I refer to information supplied by others, the source is identified.
  Facts and matters derived from other sources are true to the best of my knowledge and belief.
  4. The Defendant has submitted a repetitive Witness Statement, not dealing with the substantive issues
  of the Claim. As such, I will only respond to each point once. Notwithstanding the above, I respond
  to the issues raised in the Defendant’s Witness Statement as follows: -
  1
• 

  i. The Defendant makes reference throughout their Witness Statement to service of the

  Claim Form, which resulted in default Judgment being obtained against them due to non-

  response to the same. With respect, the Defendant’s statement bears no relevance to the

  matter. The Defendant submitted an N244 Application dated 06/11/2022, requesting that

  the Judgment be set aside as they were not in receipt of the Claim Form;

  ii. Further to the above, at the hearing of the Defendant’s Application on 16/10/2023 it was

  ordered by Judge *****  that the Judgment be set aside, the Claimant be

  ordered to serve the Claim at the Defendant’s current address, the Defendant was provided

  permission to file and serve a Defence, monies paid in relation to the Judgment by the

  Defendant be refunded and payment of the Defendant’s costs be made to them;

  iii. With reference to the above, it is submitted that the Defendant has not suffered any loss. In

  accordance with the Order, monies paid in relation to the Judgment were returned, monies

  incurred in submitting the Application to set aside Judgment were returned and the

  Defendant was provided with the opportunity to Defend the Claim, to which they have

  done;

  iv. It is submitted that my Company’s legal representatives complied with the Order above.

  The Claim was issued to the Defendant on 23/10/2023, deemed served on 25/10/2023 and

  the subsequent N215 Certificate of Service being provided to the Court on 23/10/2023.

  The Defendant appears to be alleging that service of the same was not complied with. The

  Defendant’s allegations are denied. The Order of Judge *******  dated

  16/10/2023 provided the Claimant with 14 days from receipt of the Order to serve the

  Claim Form and Particulars of Claim on the Defendant. With respect, the Claim Form was

  deemed served on the Defendant on 25/10/2023, 9 days following the same. It is therefore

  submitted that the Claimant served the Claim on the Defendant within the prescribed

  period and the Defendant’s allegations are denied;

  v. The Defendant makes reference to CPR 6.9 and states that DCB Legal have failed to

  comply with the same. It is submitted that the Claim was served in accordance with CPR

  6.9 and service of the Claim Form was effective as the Defendant filed a Defence to the

  same.

  2
• 

  5. In view of the above, my Company does not intend to comment further in relation to the

  Defendant’s allegations regarding service of the Claim Form. The Defendant’s Witness Statement

  does not include any submissions in respect of the substantive issues subject of this Claim.

  Instead, the Defendant has chosen to frustrate the matter.

  Conclusion

  6. It is my respectful submission that the Defence is entirely without merit and as such it is requested

  that the Defence is struck out and Judgment be awarded in favour of my Company, payable

  forthwith.

  7. I may not be able to attend the forthcoming hearing. Should this be so, an advocate will attend on

  my behalf. I ask that the Court accepts this as written notice pursuant to CPR 27.9(1). If I am

  unable to attend, please decide the claim in my absence, taking into account the advocate’s

  submissions, this Statement, and any other evidence filed. This paragraph demonstrates my

  compliance with CPR 27.9(1)(a)-(b).

  8. In the event that an advocate does attend the hearing, I request that their fee be added to the

  amount sought.

  3
• 
  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.

  Signed

  
  

  DCB Legal Limited

  
  
• 
  

JacksSon

I intend to respond to this statement. Unfortunately the hearing is Monday next week so no time at all. Must respond by tomorrow

i've got a few points to rely on: 
1. They have sent the very first claim to the court in 2022 knowing my actual address. 
2. The Court has admitted the dcbl's fail, and set the Judgement aside in my favour
3. i have submitted a complaint to SRA where i flag up that dcbl has lied to the court
4.  The "set aside" hearing ordered the claimant to serve the particulars to my address but they never done so and they have exceeded the timeframe given so i think this is the main reason to struck out the case in my favour (as dcbl messed up twice)
5. Not been given enough time to prepare for next hearing as i have found out about it 2 weeks prior to. Also to mention that the new address has been provided on may 15th to claimant and 17th of May to the Court (emails)

JacksSon

can anybody give some hints on how to write a supplement in legal/official manner?

Coupon-mad

I'm confused. So were they!

Highview Parking Limited are not in the IPC and you have already had the judgment set aside last year.  The WS you sent was not about defending the claim. It talked about the wrong thing. This was the wrong WS to send.

You'll have to send another one.  This time, it must explain and support your defence.  This hearing is only about the PCN(s).

JacksSon

Coupon-mad said:

This hearing is only about the PCN(s).

I understand this. I thought i did it last time. Apparently is not the right way. Is there anyone in the threads being in the same sort of position like me that you know so i could inspire from? 

JacksSon

also their claim is based on my Defence that i have sent to the Court back in November. It looks more as a defence on my defence