CCJ from a private car park

JaySH

"22 Debt and Debt Collection

22.1 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."
This is what I managed so far on a short break as still at work. Will add this later and hopefully finalise the statement. I won't be able to have proof from DVLA until later so hopefully I can add this later. Altough I have bank statements and insurance policies as proof

Coupon-mad

And was there more than a year between PCN date and the date they filed the claim?

JaySH

Coupon-mad said:

And was there more than a year between PCN date and the date they filed the claim?

Yes. It has been more than a year.

JaySH

I have to say again thank you all for the help provided. It has been overwhelming and without your help I am not sure who I would have managed.
So this is the WS now with the IPC Code of practice now added instead BPA. I need to re-read in case any mistakes.
Basically para 8 and 9 has been changed and the bits where does say BPA has been amended.
Thank you @B789 for the template. Obviously I need to add my details.
Please follow Draft Order in next post. I thought that could be handy for someone else.
1. Fee paid
2. WS. PDF
3. Draft order. Word doc.
4. Any evidence (bank statements, insurance policy and subject access request made to DVLA so hopefully more evidence)

QUESTION. Do I need to put an annex at the end of the WS with the evidence provided or shall I just add to the email?

Case number

xxxxxxxxxxx

WITNESS STATEMENT

I, [Name], of [Address], will say as follows:

1. I am the Defendant in this matter and I make this witness statement in support of my application to set aside the County Court Judgment (CCJ) entered against me on [Date], in default due to a defective service of Claim.

2. I was not aware of the claim made against me until I applied for some credit on XX/XX/2023 when I found out the Claimant had obtained a default CCJ against me.

3. The Claimant served the claim to an old address. 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, as more than 12 months have passed since the PCN on [date] and the claim on [].

4. I have not received any correspondence or notice regarding this matter until I became aware as per paragraph 2 above.

5. The claim was issued on [Date] and more than four months have passed since then, during which time I have not been aware of the claim or the CCJ. As per CPR 7.5, the claim should now be dismissed.

6. I believe that I have a strong defence to the claim, and should it not be dismissed, I wish to have the opportunity to defend it properly.

7. I have set out the grounds for my application in the attached draft order.

THE CLAIMANT FAILED TO SERVE THE CLAIM

**I will amend the para numbers**

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, vehicle insurance policy and subject access request now made to DVLA  ] 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 INTERNATIONAL PARKING COMMUNITY CODE  CODE WAS NOT FOLLOWED

8. 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;

9. 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

10. 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.

11. 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.

12. 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').

13. 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 IPC 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.

14. 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

15. 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.

16. 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.”

17. 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." 

18. 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.

19. “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 [...]

20. 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. [...]

21. 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]. [...]

22. 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.”

23. 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.

24.  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):

25. “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).

26. 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.

27. 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

28.. 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). 

29. 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.

30. 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.

31. 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.

32. 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).

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: 

Date:

JaySH

Draft order template. Thanks again @B789

CLAIM No: XXX

BETWEEN:
XYZ PPC LTD (Claimant)
-- and --
XXX (Defendant)
______________________________________________
DRAFT ORDER
______________________________________________

IT IS ORDERED THAT:

UPON considering the application of the Defendant to set aside the Judgment by default entered on [date];

AND UPON reading the evidence in support of the application;

AND UPON the court taking note that the Claimant was not entitled to default judgment, having failed to serve on Defendant's usual residential address;

AND UPON more than 4 months having passed (CPR 7.5 refers) from issue of proceedings [date]

IT IS ORDERED:

1. The Judgment by default entered against the Defendant on [date] is hereby set aside.

2. The claim should be struck out as more than 4 months has passed from issue of proceedings [date].

3. Costs of the application be paid by the Claimant to the Defendant in the sum of £275.

Now edited. So no statement of truth needed

Le_Kirk

I don't think you need to append a statement of truth to a Draft Order.

AND UPON more than 4 months has having passed (CPR 7.5 refers) from issue of proceedings [date]

Correction above.

JaySH

I was thinking to add to para 2. Due to personal circumstances I wasn't able to liaise with this matter until now.
Shall I add this?if so, do you advice to put in brackets which reasons are? Or shall I just leave it as it is and hope for the best.
Thanks 

Le_Kirk

Don't draw any attention to the matter, as far as the court is concerned you are dealing with this "as soon as possible after finding out about it".

Coupon-mad

No need for the word 'should' in para 2 of the Draft Order; an Order isn't vague, it states plainly what the Judge orders WILL happen.  Reads fine without that word.

And your WS is very good but don't say this:

"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, vehicle insurance policy and subject access request now made to DVLA  ] showing my updated address if required."


Nope.  Attach those now and give those an exhibit number.  All evidence attached now, either following on in the same PDF as the WS or as a separate Exhibits PDF with a summary page saying which exhibit is on what page.

Page numbering of your bundle is vital.  Helps the Judge and helps you at the hearing.

The Draft Order is a separate Word Document attachment.

JaySH

Coupon-mad said:

No need for the word 'should' in para 2 of the Draft Order; an Order isn't vague, it states plainly what the Judge orders WILL happen.  Reads fine without that word.

And your WS is very good but don't say this:

"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, vehicle insurance policy and subject access request now made to DVLA  ] showing my updated address if required."


Nope.  Attach those now and give those an exhibit number.  All evidence attached now, either following on in the same PDF as the WS or as a separate Exhibits PDF with a summary page saying which exhibit is on what page.

Page numbering of your bundle is vital.  Helps the Judge and helps you at the hearing.

The Draft Order is a separate Word Document attachment.

I have already sent the documentation this afternoon. I am glad that I did number the pages. Draft order was a separate in a word document. Unfortunately I added the bank statements, etc as part of the evidence mentioned on the WS but not as part of the same  pdf so hopefully will be valid. 

I will update once I hear back from ccbc
ps: unless I am allowed to re-send it?