CCJ from a private car park

B789

Coupon-mad said:

Yes @B789, except 4 and 5 of that draft Order make no sense because 2 intends to kill the claim.

@Coupon-mad, thank you for the advice. My amateurish attempt to create a draft order was merely an attempt to get the OP thinking about getting a move on and creating a structure for them to build on. That's why I said it was a suggestion to start working with. #4 and #5 were intended as a backup if #2 was not granted.

I fear that this OP has left it quite late for submitting their N244 considering how long it has been since they became aware of the CCJ.

JaySH

What does OP mean?
I know it has been really late, as I said, there has been a few personal reasons and I wasn't aware of the meaning of a CCJ until now. I am hoping to hopefully submit this by Tuesday/Wednesday. There has been a few bank holidays, Easter and due to child care, work and my vehicle breaking down I haven't been unable to sort this matter reason why I was asking if worth mentioning on my witness statement so they understand the delay. I regret it now but I wasn't aware of the timing as that CCJ has been there for a while.
I am now waiting for permission to get info from DVLA to proof the change of address as I only have bank statements. I also asked to my insurance to proof with my previous policies as my address was also updated.
So this is what I have filled in so far:

WITNESS STATEMENT OF DEFENDANT

I am xxx and I am the defendant in this matter. This is my supporting statement to my application dated  xx April 2023 requesting to:

a. Set aside the default judgment dated on xx November 2021 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 speculative invoice.

1.2. I understand that the Claimant obtained a Default Judgment against me as the Defendant on xx November 2021. I am aware that the Claimant is xxxxxxxx, and that the assumed claim is in respect of unpaid Parking Charge Notices from 2020.

1.3. The claim form was incorrectly served to an old address and I thus was not aware of the Default Judgment until March 2023 after I requested a credit report.

1.3.1. The address on the claim is xxxxxx. I moved to my new address xxxxx in November 2020  and moved again to my current address xxxx May 2022. As I’ve evidenced in the attached documents, dated from my vehicle insurance, DVLA and bank statements. (I am hoping to get enough evidence this week if it is not too late)

1.4. In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

1.4.1 I only became aware of the CCJ in March 2023, when I discovered that it was lodged onto my credit file during a finance application.

1.4.2 On xxx 2023, I contacted the County Court Business Centre to obtain relevant information relating to this default judgment.

1.4.3 In xxx 2023 I submitted my case in order to set-aside this judgment and fairly present my case.

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

1.6. 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 that 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.

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

Furthermore, former Prime Minister, Theresa May, publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses."

The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That in the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.” Furtherance to points raised in 1.3 above.

1.9. 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:

IT IS ORDERED that:

1. The default judgment dated on November 2021 be set aside. 

2. The claim struck out as the claim form having not been served within 4 months of issue.

3. The Claimant do pay the Defendants costs of this application of £275 on an indemnity basis.

I am thinking to add something about the code of practice as coupon-mad advised? 
Thank you

Fruitcake

OP = Original Poster or Original/Opening Post.

KeithP

JaySH said:

What does OP mean?

OP is the original poster or opening poster, i.e. the person who made the post that started this discussion, i.e. you.

JaySH

Is worth trying to set it aside if it is this late now? Do you think I can  add on my statements the personal reasons why this was delayed or shall I now forget about it, and wait until the 6 year period finishes. It worries me the idea of the bad credit report.

Coupon-mad

JaySH said:

Is worth trying to set it aside if it is this late now? Do you think I can  add on my statements the personal reasons why this was delayed or shall I now forget about it, and wait until the 6 year period finishes. It worries me the idea of the bad credit report.

Set it aside if you need it set aside. Crack on.

Le_Kirk

Every paragraph in your witness statement needs a number.  Your 4-point Draft Order will, of course, be a Word document so that the judge can adjust it if required.

B789

JaySH said:

Is worth trying to set it aside if it is this late now? Do you think I can  add on my statements the personal reasons why this was delayed or shall I now forget about it, and wait until the 6 year period finishes. It worries me the idea of the bad credit report.

The CCJ on your credit record will only affect you if you need to apply for any form of credit. It will affect any mortgage application, getting a new mobile phone contract or even some utilities. The decision is going to be yours but you should at least try and get it set aside as it will then be gone from your credit record forever.

Another feeble attempt below with a bit more meat on the bones. I'm not sure about paras 17-29. Perhaps those should be attached as a Skelly with the relevant cases indexed.

Anyway, it's hopefully a bit better as it includes the BPA CoP, and CPRs for the set aside and the 4 months dead for getting the original claim thrown out. I'd wait to hear back from the regular experts though before doing anything with this.

WITNESS STATEMENT OF DEFENDANT

I am xxx and I am the defendant in this matter. This is my supporting statement to my application dated  [date] requesting to:

a. Set aside the default judgment dated [date] as it was not properly served at my current address.

b. Order for the original claim to be dismissed.

c. The claim is dead as more than 4 months have passed from the issue date of proceedings and service of the claim was defective.

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

THE CLAIMANT FAILED TO SERVE THE CLAIM

1. I understand that the Claimant obtained a Default Judgment against me as the Defendant on [date]. I am aware that the Claimant is [full name of PPC] and that the assumed claim is in respect of an unpaid Parking Charge Notice.

2. CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence." The Claimant, having obtained a previous address from the DVLA on [date] and having received no response, did not perform the requisite "reasonable diligence" required to find my correct address to serve the claim form in [Month/Year].

3. The claim form was not served at my current address, and I thus was not aware of the Default Judgment until I attempted to apply for some credit on [date].

4. The address on the claim is [old address]. I moved to my current address at [current address] in [month/year]. In support of this, I can provide scanned copies of my [bank statement/utility bill/council tax bill/Experian Credit Report etc.] showing my updated address if required.

5. The fact that there was no response from a series of letters sent to my previous address should have alerted the Claimant to the possibility that I was not residing there. Silence after sending a Notice to Keeper, a reminder and then a Letter before Claim is a clear indicator that the Registered Keeper may not live there.

6. 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 I no longer resided. The claimant did not take reasonable steps to ascertain the address of my current residence, despite having some [X months] to establish a valid address. This has led to the claim being incorrectly served to an old address and an irregular judgment.

7. 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.

THE BRITISH PARKING ASSOCIATION CODE WAS NOT FOLLOWED

8. British Parking Association (BPA) Code of Practice which requires a soft trace to be undertaken was not followed. The BPA Code of Practice 2012 - Version 7, January 2018, clause 23.1c states;

9. “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.”

THE PRIVATE PARKING CODE OF PRACTICE

10. The Parking (Code of Practice) Act 2019, Private Parking Code of Practice published on 7 February 2022 by the Secretary of State for the Department for Levelling Up, Housing and Communities (DLUHC) (point 10) states;

11. "If a driver, keeper or hire company does not respond to a notice of parking charge or subsequent correspondence, or a parking charge has not been paid in full, reasonable endeavours - including contacting credit reference agencies to undertake a ‘soft trace’ - must be undertaken by the parking operator and/or its appointed debt recovery agent to establish the correct correspondence details of the driver, keeper or hire company before commencing enforcement action. Where a new address is discovered the notice of parking charge should be re-issued at the original rate but with a further 28 days from service for a response (payment or appeal)."

DVLA ADDRESS DATA MAY NOT BE RELIABLE

12. 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.

13. 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 fail 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.

14. 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').

15. A claim sent to an old DVLA registered keeper address with no soft trace checks (costing as little as 29 pence and offered free by debt collectors connected to the parking industry) fails to meet the BPA Code of Practice, fails to satisfy the specific 'pre-action Protocol for debt claims', and is in breach of the CPRs about the obligation to take 'reasonable steps' to check a Defendant's address so that service is effective.

16. 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.

CLAIM IS DEAD AS MORE THAN 4 MONTHS HAVE PASSED FROM THE ISSUE DATE OF PROCEEDINGS

RELEVANT CASE LAW

17. Case law precludes the court from resurrecting a dead claim more than 4 months after it was improperly served and does not give the courts any scope to do so.

18. There are several authorities, including the judgment in Boxwood [2021] EWHC 947 (TCC), which are reminders 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.”

19. In the judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch), 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, 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." 

20. In Piepenbrock-v-Associated News Limited [2020] EWHC 1708 (QB), the High Court refused the Claimant’s application for a retrospective extension of time to serve a Claim Form after the Claimant failed to demonstrate they took all reasonable steps to serve the Claim form in the period of its validity.

21. “Ultimately, the problem was that the Claimant had made no attempt to serve in accordance with the rules. [...] Although I sympathise with the Claimant that the consequences for him of the error of not validly serving the Claim Form will be serious, there is nothing that really separates his case from many others who have made similar mistakes when attempting to serve a Claim Form. [...] I am afraid, in this case, the responsibility for the failure validly to serve the Claim Form rests solely with the Claimant’s side [...]

22. In light of my conclusions above, having refused the applications made under CPR 7.6, 6.15 and 6.16, there is not a residual self-standing power available under CPR 3.9 to relieve the claimant of the “sanction” that, as a result of his failure to validly to serve the Claim Form during its period of validity, it has now lapsed. The term “sanction” is inapt because it would, in theory, be possible for the Claimant to issue and validly serve a fresh Claim Form. The obstacle standing in the way of a claim is not any sanction imposed by the Court but the fact that the limitation period for defamation and malicious falsehood has expired. [...]

23. Finally, the Claimant seeks an order under CPR 3.10 remedying his error in not validly serving the Claim Form. The Defendants submit that CPR 3.10 cannot rescue the Claimant. This general provision does not enable the Court to do what CPR 7.6(3) forbids: Vinos -v- Marks & Spencer plc [2001] 3 All ER 784; [2001] CP Rep 12 [20]. [...]

24. The Claim Form was not served during its period of validity. In consequence, the Court has no jurisdiction over the Claimant’s claim. It follows that I should also formally dismiss the Claimant’s application for summary judgment.”

25. In Vinos v Marks & Spencer plc [2001] 3 All ER 784, 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 the power to do so.

26.  CPR 12.3(1) states that a claimant may obtain judgment in default of an acknowledgement of service only if at the date on which judgment is entered (a) the defendant has not filed an acknowledgement of service or a defence to the claim (or any part of the claim); and (b) the relevant time for doing so has expired. In this case, the claim form was not validly served in [month/year] due to failure to check for a current address (CPR 6.9 (3)), therefore the time limit for acknowledging service has not begun. As the time limit has not begun it cannot have expired. As the time limit has not expired the condition in CPR 12.3(1)(b) has not been satisfied. This results in a mandatory set aside (CPR 13.2). It follows that if a claim is set aside for failure to be served, then the claim cannot be resurrected and served again after 4 months has passed from the date of filing pursuant to CPR 7.5(1). This is on point with the court of appeal in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016):

27. “Moreover, I do not consider that the CPR presents an obstacle in the circumstances of this case to setting aside judgment. CPR 13.2 provides that the court must set aside a default judgment where any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied. The latter provision does not apply, but the former is relevant. CPR 12.3(1) states that a claimant may obtain judgment in default of an acknowledgement of service only if (a) the defendant has not filed an acknowledgement of service or a defence and (b) the relevant time for doing so has expired (my italics). I accept Mr McLaren's argument that when an order for retrospective validation of an alternative method of service has been made pursuant to CPR 6.15(2) the relevant time for filing an acknowledgement of service is the period which the court must specify under CPR 6.15(4)(c). Where, as in this case, the court did not specify any such time there can be no relevant time which has expired for the purposes of CPR 12.3(1). If this analysis is correct the requirements of CPR 12.3(1)(b) have not been satisfied and so the court is obliged to set aside the default judgment pursuant to CPR 13.2(a).

28. I do not see it as a draconian consequence that a judgment, obtained after deemed service has been effected without specifying a time for that service to be acknowledged, should be set aside as of right in such a case. I agree that CPR 13.2 specifies the circumstances in which a default judgment must be set aside and in my judgment one of those circumstances is when judgment is entered in default of an acknowledgement of service when "any of the conditions in rule 12.3(1) …was not satisfied". Here one such condition was not satisfied, namely the time for acknowledgement of service had not expired, because none had ever become applicable.

29. This, to my mind, is not "playing technical games" (c.f. the passage from the Abela case, cited at paragraph 11 in the judgment of Longmore LJ). It is merely applying the principle that due process should be followed. 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 acknowledgement. He is simply not in default at all.”

THE CLAIM IS DEAD

30. Continuing a dead claim more than 4 months after it was raised (but never properly served) is impossible under any rule of law or practice (CPR 7.5). 

31. The Claimant is wholly responsible for failing to serve the claim correctly within the 4 months (as required by CPR 7.5) and as a result this claim is dead.

32. 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 BPA code of practice and the CPRs about taking 'reasonable steps' (CPR 6.9) to check a Defendant's address.

33. If the Claimant believes they still have a claim then filing afresh is the only way forward. The Claimant may send a ‘Letter Before Claim’ to the right address, this time following the pre-action protocol for debt claims. The court is reminded that this Defendant has received nothing to build any defence on. No claim form and no detailed particulars of the claim have ever been sent to the Defendant’s current address.

34. This claim should be struck out as more than 4 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).

IT IS ORDERED THAT:

1. The default judgment dated on [date] be set aside. 

2. The claim is struck out as the claim form having not been served within 4 months of issue.

3. The Claimant do pay the Defendant's costs summarily assessed at £275.

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

Coupon-mad

Good work @B789 althoughI only skim-read it so far.  We do need to help people with CCJs more.

I think for newbies, if providing examples we must separate the Draft Order into a fresh post, otherwise they might think it just follows as part of the WS.

And the Draft Order needs its standard headings and first sentence starting with the word UPON in capital letters, or new posters won't know what the whole thing is supposed to look like.

And remove this (below) because a struck out claim is what the OP wants, and a Draft Order is intended to be the 'outcome' of the application:

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

B789

Thank you ma'am. The learning curve is steep but, in an attempt at mixing metaphors, there is a speck of light at the end of the tunnel. It could be a train or it could be daylight...