Application set aside hearing for CCJ parking fine DCB legal Highview Parking

thedateisaugust

I have received the witness statement and draft order from the Claimant (see below). 

They HAD done a soft trace and it returned my old address. However, "the Claimant does not oppose the Defendant’s application to Set Aside  the Judgment and requests that an Order be made as per the proposed Draft Order. "

Could someone please advise what will happen next? Since the Claimant does not oppose my application to set aside, should I expect that the judge will likely grant the set-aside? 

CLAIMANTS WITNESS STATEMENT:

We act for the Claimant and write in respect of the Defendant’s Application to Set Aside the  Judgment.  

The Claimant will not be in attendance at the above listed hearing. No disrespect is intended  to the Court. This is simply a decision made to avoid incurring unnecessary and  disproportionate costs. We respectfully ask the Court to take into account the following  submissions.  

SUBMISSIONS REGARDING THE APPLICATION TO SET ASIDE THE JUDGMENT  We highlight the following in respect of the Defendant’s application: -  

1. The Claimant Solicitors conducted a trace, thus providing knowledge of the  Defendants last known address;  

2. In line with the above, Court proceedings were correctly served at the Defendant’s  last known address in accordance with CPR 6.9 and accordingly, service of the  Claim Form was effective;  

3. As a result of the Defendant’s failure to respond to the Claim Form, Judgment in  default was granted and was sent to the same address that the Claim Form was sent  to;  

4. The Defendant has since provided evidence that, despite the Claimant taking all  reasonable steps to ascertain the Defendant’s last known address, they had moved  address prior to the Claim being issued and thus was not in receipt of the Claim Form  and thus did not have the opportunity to defend the Claim;  

In view of the above, the Claimant does not oppose the Defendant’s application to Set Aside  the Judgment and requests that an Order be made as per the proposed Draft Order. 

In the event that the Defendant seeks to recover the costs of making the Application to set  Judgment aside, pursuant to CPR 27.14, the Defendant is not entitled to costs incurred  where the matter has been allocated to the Small Claims Track.  

Further to the above, the Claimant has not acted unreasonably. All reasonable steps have  been taken to ascertain the Defendant’s last known address and the Claimants solicitors  were acting under a genuine belief that the Claim Form was served to the Defendant’s  current address on the basis of the information provided by the trace.  

We look forward to hearing from you further.  

Yours faithfully  

CLAIMANTS DRAFT ORDER:

DCB Legal Ltd 

LIMITED  
CLAIMANT  
AND  
DEFENDANT  
DRAFT ORDER  

Before District Judge ___________________________  

Upon considering the Defendant’s application dated XXXXX

AND UPON a trace being conducted to ascertain the Defendant's last known address and the Claim Form  being issued to this address pursuant to CPR 6.9;  

AND UPON the Defendant since providing evidence that they had moved address prior to the Claim  Form being issued and thus did not receive the Claim Form;  

AND UPON there being some other good reason to set the Judgment aside pursuant to CPR 13.3;  

It is hereby ordered as follows: -  

i. The Judgment entered on the XXXXX be set aside;  

ii. The Claim be dismissed; and  

iii. There be no Order as to costs. 

B789

You will want strict proof that the Claimant did actually perform a trace. Did you request a set aside with or without consent?

thedateisaugust

Thanks I will state that during the hearing. 

I initially requested a set aside with consent - the Claimant did not accept. My Witness Statement and draft order just request a set aside it doesn't specify without consent. Although my witness statement does state that the claimant did not accept set aside with consent

KeithP

thedateisaugust said:

iii. There be no Order as to costs. 

Do you understand what that means?

B789

How much did you pay for the N244 set aside? £108 or £257?

thedateisaugust

KeithP said:

thedateisaugust said:

iii. There be no Order as to costs. 

Do you understand what that means?

My understanding is that I would not be reimbursed for anything (time out of work, N244 application fee), and in addition I would have to pay what I 'owe' to the Claimant, which I think would be the original CCJ (~£350). Is that correct? 

My priority is removing the CCJ as I cannot find a place to live currently.  So my main worry is whether the judge is likely to grant the set-aside, given that the Claimant does not oppose my application to set aside (albeit with no order as to costs)  

thedateisaugust

B789 said:

How much did you pay for the N244 set aside? £108 or £257?

I paid £257

B789

If the Claimant agrees to the set aside, then you should have asked them first and you would have only paid £108 for a set aside with consent. 

Why do you keep supposing that if the Claimant did a soft search, it would keep showing your old address? Have you been living of the grid since you moved? Are you on the electoral register? Do you have any utility bills in your name? Do you have your own bank account in your own name? Hvae made any loan or mortgage applications since you moved?

If you were there to be found using a simple credit search and you have paid for a set aside without consent, you have a good chance of recovering your £275 N244 fee because the Claimant hasn't fulfilled their PAP. If you really were living off the grid with no credit record, then it is not the Claimants fault that the Claim was not served correctly.

thedateisaugust

If the Claimant agrees to the set aside, then you should have asked them first and you would have only paid £108 for a set aside with consent. 

I had asked. They did not agree at the time, which is why i then submitted the N244.

Why do you keep supposing that if the Claimant did a soft search, it would keep showing your old address?

I was not there to be found. Zero documentation in my name at my current address at the time of the CCJ.

So, like you say, if someone's not there to be found at their current address then there's not an argument against "Court proceedings were correctly served at the Defendant’s  last known address in accordance with CPR 6.9 ". 

Instead, it comes down to "there being some other good reason to set the Judgment aside pursuant to CPR 13.3". 

My question is still: since the Claimant does not oppose my application to set aside, should I expect that the judge will likely grant the set-aside?  

Given the above (i.e. me not taking steps to be there to found) i consider a set aside without orders for costs as a good result.

B789

As long as you are "happy" (term used lightly) with the CCJ being set aside and with what it has cost you to get there, then you could consider it a "good result" (again, term used lightly) so that you can get on with your life and apply for your mortgage or a loan.

As long as the CCJ is set aside and we know that the claimant has no objection because you will have paid it, plus their costs plus the set-aside fee plus any false add-ons they included with the default CCJ, I don't see a reason for it not to be so.