Excel CCJ

froggie26

Here are details of my situation. 

Particulars of claim for parking on 22/12/21
THE CLAIM IS FOR A BREACH OF CONTRACT FOR    BREACHING THE TERMS AND CONDITIONS SET ON    PRIVATE LAND. THE DEFENDANT'S VEHICLE,  xxxx WAS IDENTIFIED IN THE xxxx PAY & DISPLAY CAR PARK ON THE      22/12/2021 IN BREACH OF THE ADVERTISED TERMS AND CONDITIONS; NAMELY PARKED WITHOUT        PURCHASING A VALID PAY & DISPLAY TICKET FOR  VRM. AT ALL MATERIAL TIMES THE DEFENDANT WAS THE REGISTERED KEEPER AND/OR DRIVER. THE     TERMS AND CONDITIONS UPON ENTERING PRIVATE   LAND WERE CLEARLY DISPLAYED AT THE ENTRANCE  AND IN PROMINENT LOCATIONS. 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     SIGNS SPECIFICALLY DETAIL THE TERMS AND      CONDITIONS AND THE CONSEQUENCES OF FAILURE   TO COMPLY, NAMELY A PARKING CHARGE NOTICE    WILL BE ISSUED, AND THE DEFENDANT HAS FAILED TO SETTLE THE OUTSTANDING LIABILITY. THE     CLAIMANT SEEKS THE RECOVERY OF THE PARKING   CHARGE NOTICE, CONTRACTUAL COSTS AND    INTEREST

CCJ issued June 2022.
Discovered CCJ 24/3/23 after credit score check. 
Moved address July 2021. 
Didn't update DVLA address V5C until 2 days ago (25/3/23) when realised this had happened as I forgot. 
Driving license/utility bills/tenancy show I was at new address from July 2021.
I have emailed DVLA a SAR. 

Next steps:
-I'm going to contact Excel for SAR
-I've started to write N244/witness statement and draft order.

Questions
-Can i go straight to applying for set-aside without consent or do i need to ask to do it with consent first?
-Do i need to email Excel anything else at this stage.
-I remember seeing parking pay and display machine but took a risk as i was only there for 5 minutes- does this mean I don't have a defence?

Coupon-mad

Do not rush the SAR. You priority is the other way round as you MUST act promptly (required by the court).  N244 application & WS bundle first.

Of course you didn't take a chance and you certainly do not say that. Anyway this isn't about your defence yet.

Copy the worked examples from 2022 by

@Brokenchief

@Jack5656

Do what they did.

B789

If you go for a with consent set aside, you will probably have to agree to the Claimant demanding that you pay it and you can't claim the £180 fee for the N244. If you go for it without consent, then you pay the £275 and run the risk that it isn't set aside, although that is highly unlikely as you will be arguing that you were there to be found and the Claimant should not be relying on an old address if they had had no response to any communication and could have paid less than 50p for a soft search to find you at your current address.

You will also have to show the judge that you have a good prospect of defending the original claim, which based on your post above, you do. You will also be arguing the 4 months dead plea to get the original claim dismissed.

You email the Excel DPO an SAR to get copies of all correspondence and anything else they have about or to/from you.

 Which PPC and solicitor are you dealing with on the claim?

froggie26

Thank you both for your advice. I have gone through brokenchief/jack5656 threads- very helpful.
Solicitor is Elms Legal Limited.

Do I have to contact Excel prior to going with a set aside without consent to let them know/give them a chance to go with consent or is there no duty to do this?

Coupon-mad

No duty but it looks far better to give them a week at least to agree or not.  

froggie26

Excel have responded and have not agreed to set aside with consent so I am going to send bundle to the court. I would be very grateful for any feedback on the below:

WITNESS STATEMENT 

 

I am x of x, and I am the defendant in this matter. This is my supporting statement to my application dated x  requesting to: 

a. Set aside the default judgment dated 23/06/2022 as it was not properly served at my current address. 

b. Order for the original claim to be dismissed. 

c. Order for the claimant to pay the defendant £275 as reimbursement for the set aside fee. 

DEFAULT JUDGMENT 

1.1. I was the registered keeper of the vehicle at the time of the alleged event. 

1.2. I understand that the Claimant obtained a Default Judgement against me as the Defendant on 23/06/2022. I am aware that the Claimant is Excel Parking Services Limited and that the assumed claim is in respect of one unpaid Parking Charge Notice for an event that took place on 22/12/2021. 

1.3. The claim form was not served at my current address, and I thus was not aware of the Default Judgement. I have never received any correspondence from the claimant to my current address.

1.4 I moved from the served address on 27/07/2021. I can provide evidence to support this with 1A (closing account notice from Water Company), 1B (evidence of being on the electoral register at my current address from x), 1C (change of my driving licence address dated x).

1.5 I became aware of the CCJ after beginning a mortgage application via my mortgage broker, x (1D – email correspondence dated 24/3/23). x informed me that a CCJ had been found on my file. I found out the details of the claim via setting up an Experian credit check account (1E – confirmation of joining Experian email)

1.6 Following this – I took measures to quickly establish more information about the claim – including emailing County Court Business Centre (CCBC) for particulars of the claim and contacting CCBC for further information on 27/3/23 (1F – email from CCBC with particulars of the claim 27/3/23).

1.7 At the time of the default judgement I was on the electoral roll at my new address, and registered at this address for council tax, banking, and HMRC. As Excel Parking Services Limited will not have received any correspondence from me at any point, and I did not respond– I believe that they had reasonable cause to question whether they were using an accurate address, and that simple searches could have provided them with my correct current address.

1.8 I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held my correct contact details at the time of the claim. 

1.9 On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address at which the Defendant no longer resides. The claimant did not take reasonable steps to ascertain the address of my current residence. This has led to the claim being incorrectly served to an old address and an irregular judgment. 

1.10 Considering the above, I was unable to defend this claim. I believe that the Default Judgment against me was issued incorrectly and thus should be set aside, and I ask the Court to kindly consider the reimbursement of the fee of £275 from the claimant should this request be successful.

DRAFT ORDER

IN THE COUNTY COURT BUSINESS CENTRE AT: xxxxxx

EXCEL PARKING SERVICES LIMITED (Claimant)

And

X (Defendant)

CLAIM No: X
IT IS ORDERED that:

1. The default judgment dated 23/06/2022 be set aside.

2. Costs to be reserved.

3. Unless the Claimant serves a copy of the claim form on the Defendant by 4pm on XX/XX/23 paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £275 and the claim shall be struck out.

4. If the Claimant serves the claim form as directed in paragraph 3 the Defendant shall file and serve a defence by 4pm on XX/XX/2023.

5. Should the Claimant discontinue the Claim after the CCJ is set aside, paragraph 2 shall cease to have effect and the Claimant shall pay the Defendant's costs summarily assessed at £275 plus the Defendant's costs for attending the hearing.

6. All enforcement be put on hold pending the outcome of the application.

Coupon-mad

That's quite basic and omits the '4 months dead' argument and case law seen in the exemplars I linked you to in my first reply.

You haven't mentioned that you acted promptly and also firstly asked Excel to consent to set aside the CCJ but they have refused, despite knowing the claim was sent to an old address.  Should Excel now try to confuse the matter with a disingenuous 'draft consent order' at this late stage after that horse has bolted, it will be purely to avoid being held liable for the £275 costs their refusal has caused.  To be clear, the Defendant DOES NOT consent to any order now that does not order the Claimant to pay the £275 back and if the Claimant files such a draft 'consent' order, the court is asked by this applicant to disregard it.

And I didn't see anything about CPR 13.2 and CPR 13.3 and why the court may or must set aside the CCJ.  You want to make it easy for the Judge.

froggie26

Thank you for the feedback. I have updated and would be grateful for thoughts. I had read somewhere that caselaw wasn't supposed to be in WS but put it all in here for now.

WITNESS STATEMENT 

I am x of x, and I am the defendant in this matter. This is my supporting statement to my application dated 17/04/2023  requesting to: 

a. Set aside the default judgment dated 23/06/2022 as it was not properly served at my current address. 

b. Order for the original claim to be dismissed as it was not served within 4 months of the issue, pursuant to the CPR 7.5 and the Claimant having failed to apply for an extension, pursuant to CPR 7.6

c. Order for the claimant to pay the defendant £275 as reimbursement for the set aside fee. 

DEFAULT JUDGMENT 

1.1. I was the registered keeper of the vehicle at the time of the alleged event. 

1.2. I understand that the Claimant obtained a Default Judgment against me as the Defendant on 23/06/2022. I am aware that the Claimant is Excel Parking Services Limited and that the assumed claim is in respect of one unpaid Parking Charge Notice for an event that took place on 22/12/2021. 

1.3. The claim form was not served at my current address, and I thus was not aware of the Default Judgment. I have never received any correspondence from the claimant to my current address.

1.4 The address on the claim is XXXX. I moved from the served address to my current address on x. I can provide evidence to support this with 1A (closing account notice from WaterCompany), 1B (evidence of being on the electoral register at my current address from x), 1C (change of my driving licence address dated x).

1.5 It should be highlighted that I acted promptly once discovering the CCJ on my record as described below.

1.5.1 On 24/3/23, I became aware of the CCJ after being informed by my mortgage advisor that my application for a mortgage had been rejected. (1D – email correspondence dated 24/3/23). On this day, I discovered the details of the claim by setting up an Experian credit check account (1E – confirmation of joining Experian email).

1.5.2 On 27/3/23, I took measures to quickly establish more information about the claim including contacting the County Court Business Centre (CCBC) for particulars of the claim (1F – email from CCBC with particulars of the claim 27/3/23).

1.5.3 On 10/4/23, I contacted Excel Parking stating “I moved address on 27/7/2021 and correspondence including the CCJ was served to my old address” and that, “I was unaware of the claim and so I would like the CCJ to be set aside”. I received a response from Elms Legal Limited on 14/4/23 stating “if you are looking to fully dispute the matter then you would need to do so by making an application to the court to have the CCJ set aside.”

1.6 I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held my correct contact details at the time of the claim. I was “there to be found” at the new address at the time of the judgment as I was on the electoral roll and registered at this new address for council tax, banking and HMRC. Excel Parking Services Ltd will not have received any response from me when letters were sent to my old address and so I believe they had reasonable cause to question whether they were using an accurate address. A simple search such as an inexpensive and immediate credit reference agency address check could have provided them with my correct address. I would then have been notified of this judgment and could have taken action to prevent it.

1.6.1 A claim sent to an old address with no soft trace checks fails to meet the British Parking Association Code of Practice which states “Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the Notice To Driver / Notice To Keeper / reminder letters, take reasonable endeavours to ensure that the person being written to is the correct party”.

1.6.2 The Claimants actions also breaches the CPRs which state the Claimant should take “reasonable steps” to check a Defendant’s address so that service is effective. CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence”. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address at which the Defendant no longer resides. The claimant did not take reasonable steps to ascertain the address of my current residence. This has led to the claim being incorrectly served to an old address and an irregular judgment. 

1.6.3 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 CCJ should be set aside.

1.6.4 A failure to carry out proper checks to establish the right address for service before filing a claim breaches the British Parking Association Code of Practice, the CPRs and the pre-action protocol for debt claim.  The Claimant acted wholly unreasonably by negligently or deliberately disregarding all rules and caused the claim to be improperly served.  They failed to serve it at all.

1.7 Given that more than 4 months has passed (CPR 7.5 refers) from issue of proceedings (xx xxxxx) and service of the claim was defective (i.e. it was never served) the Defendant submits that this claim is dead and the period for service cannot be extended by any further application.

1.8 There are several authorities for this, including the judgment in Boxwood [2021] EWHC 947 (TCC) (see Exhibit x), 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…” 

1.9  In Vinos v Marks & Spencer plc [2001] 3 All ER 784 (see Exhibit x) 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 expiry of that period. The court refused to grant relief on the basis that it did not have power to do so. 

2.0 In judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch)  (see Exhibit x) 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."   

2.1 I was unable to defend this claim. I believe that the Default Judgment against me was issued incorrectly and thus should be set aside, and I ask the Court to kindly consider the reimbursement of the fee of £275 from the claimant should this request be successful.

2.2 I do not consent to any order now that does not order the Claimant to pay the £275 back. If the Claimant files such a draft “consent” order, I ask the court to disregard it.

Coupon-mad

Remove 1.6.1 and 1.6.4 (irrelevant because Excel are not in the BPA AOS).

Re-number it all with normal numbering.

Add in the alternative CPR 13.3 as a safety net.

Add the statement of truth & your signature & date.

Attach proof of moving and a utility bill, bank statement, driving licence etc., to prove you were 'there to be found' in 2022.

Attach a separate costs assessment including any loss of income or loss of leave for attending the hearing.

Attach a Draft Order as a separate word document that does not go as a PDF whereas your WS does.

froggie26

Thank you- I'll make those changes. 2 questions:

1)     I now understand BPA is irrelevant- I’ve been reading IPC- am I correct in thinking that I can’t use IPC because it was filed within 12 months of the event? Shall i just leave that out?

2)    If I’m including 13.3 as backup, I understand that I need to have the basics for a defence in my head in case I’m asked- I’ve had a look at the defence templates. I don’t think I’ve got anything to go on in terms of signage or not being the driver. Is this still okay to just have all the other points that everyone else includes as my defence to back up 13.3?

Coupon-mad

1. Yes, leave it out. That's why I didn't suggest adding it.

2.  Signage is ALWAYS an issue.  Excel's signs are appalling from those we've seen, and Judges have agreed.  And there's only one Template Defence.