CCJ served at wrong address - letter from DCBL Bailiffs to even older address 1 month after default

k2122

Thank you both for the guidance, I must've ended up using an out of date template which was rather brief. I'll work on this and update. 

B789

Perhaps you should be using some of the following in your WS:

Under CPR 13.2 (a) The court must set aside a judgment entered under Part 12 if judgment was wrongly entered because, in the case of a judgment in default of an acknowledgement of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied. 

Given that CPR 6.9 (3) was not met, CPR 13.2(a) applies and the CCJ should be set aside. As the defendant did not give an address to the claimant at which the claim could be served (because the defendant was not asked), CPR 6.9 applies. CPR 6.9 stipulates that an "Individual" should be served at their "usual or last known residence."

Also under CPR 13.3 (1)(a) the court may set aside or vary a judgment entered under Part 12 if the defendant has a real prospect of successfully defending the claim.

Considering the above, you were unable to defend the claim.

The claimant should re-serve the claim within 14 days of the set aside and the defendant shall file a defence within 28 days.

You believe that the Default Judgment against you was issued incorrectly and should be set aside and you ask the Court to kindly consider the reimbursement of the fee of £275 from the claimant should this request be successful.

k2122

Coupon-mad said:

That's an old statement of truth and a very short WS.  It should also state that you have good prospects of defending the claim (brief detail) and yet, despite knowing the claim went to an old unchecked address, Elms Legal have refused consent to set aside unless the full amount is paid, which will not be acceptable because it is wholly disputed.  

State that if Elms Legal try to mislead the court with a 'draft Consent Order' (as they have reportedly done before in similar cases) it is no such thing.

Cite the IPC CoP about checking addresses before filing claims, if more than 12 months has passed between PCN and litigation (is there a 12 month or more gap though?).

Remove "of" in dates because it isn't needed and is just colloquial (doesn't read well when written).  E.g. 3rd of May.

Read half a dizen 2023 CCJ set aside threads.  Use more information (most WS are longer).  Use the right statement of truth as seen on every other CCJ thread.

Thanks for this - I've amended my WS using more recent examples. I am unsure by what is meant specifically by the section in bold, and seek your guidance if possible on how to phrase this within the WS which I'll post now.

k2122

Witness Statement of Defendant

I, X of XXX, being the Defendant in this case will state as follows;

1.     I make this Witness Statement in support of the application (dated 7th May 2023) requesting to:

a.     Set aside the default judgment in this case (Claim No. X, Judgment dated 15/03/2023) 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 Judgement

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

3.     I understand that the Claimant obtained a Default Judgment against me as the Defendant on 15th March 2023. I am aware that the Claimant is Vehicle Control Services Limited and that the assumed claim is in respect of an unpaid Parking Charge Notice from 22nd September 2022.

4.     The claim form was not served at my current address, and I was therefore unaware of the Default County Court Judgment against me until I was forwarded a letter on 1st May 2023 from Direct Collection Bailiffs Ltd dated 20th April 2023, sent to a previous address (X, last resident in July 2021), by the landlord of that address. See Exhibit A.

5.     The address on the claim is X. I moved from this address to my current address X, on the 8th of September 2022. In support of this, please see Exhibit B which contains: tenancy agreement, council tax bill, & utility bills.

6.     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;

Sequence of Recent Events

7.     I never received any notification of the claim prior to 1st May 2023. Following receipt of the forwarded letter 1st May 2023, I contacted the County Court Business Centre at the earliest opportunity on the 3rd May 2023 and received particulars of the claim, details of the claimant (VCS), and legal representative of the claimant (ELMS Legal).

8.     I contacted ELMS Legal on the 3rd May, requesting for all information and correspondence in relation to the claim. I was provided with the claim form, which was issued on the 21st February 2023, in relation to a Parking Charge Notice regarding the alleged contravention on the 22nd September 2022. I was provided a series of letters from VCS, the first of which was issued on the 26th September 2022 (see Exhibit C).

9.     After moving address on the 8th September 2023, I promptly notified the DVLA of my change in address on the 26th September 2022, following installation of home broadband in my current address. In support of this, see the attached email confirmation from DVLA (Exhibit D). Incidentally this is the same date the PCN was first issued.

10.   I sold the vehicle which the PCN related to on the 15th October 2022, and was no longer the registered keeper of the vehicle as of this date. The invoice for the sale is provided (see Exhibit E).

11.   I requested consent by email on the 3rd May 2023 from the claimant to set the judgement aside, on the grounds that I was not resident at the address to which the PCN and claim was sent. Despite knowing this, the request for consent was refused by the claimant’s representative on the 5th May 2023 (see Exhibit E), unless the full amount is paid, which is not acceptable as it is wholly disputed.

k2122

12. 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 therefore denied the opportunity to defend the claim. 

13. On that basis, I believe the Claimant has not adhered to Civil Procedure Rules (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 despite having no response to four consecutive letters demanding payment, followed by a letter before claim. This has led to the claim being incorrectly served to an old address and an irregular judgment.

14. Under CPR 13.2 (a) the court must set aside a judgment entered under Part 12 if judgment was wrongly entered because, in the case of a judgment in default of an acknowledgement of service, any of the conditions in rule 12.3(1) and 12.3(3) was not satisfied. 

15. Given that CPR 6.9 (3) was not met, CPR 13.2(a) applies and the CCJ must be set aside. As the defendant did not give an address to the claimant at which the claim could be served (because the defendant was not asked), CPR 6.9 applies. CPR 6.9 stipulates that an "Individual" should be served at their "usual or last known residence."

16. DVLA address data may not be accurate. DVLA data is provided for a single (very limited) reason, so a parking operator can invite the keeper to name the driver or to pay, or to inform the keeper they will be liable if not, and about their right to appeal.

17. The system is called 'KADOE' (Keeper at Date of Event) because it is a brief 'snapshot in time' address to enable a parking firm to send a Notice. 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 updated a VC5 logbook with a new address (or if the DVLA failed to note a change in a timely manner, which is reportedly common) a parking operator will not know, nor be able to find that out.

18. The DVLA keeper data may be outdated (i.e. the keeper cannot be reached at that address) for millions of motorists as reported in Birmingham Live on 3 November 2021. The parking industry know this, hence Codes of Practice direct that further address checks must be made. This is further evidence that DVLA address data should not be solely relied upon, especially with DVLA processing delays.

19. The KADOE address is not provided by the DVLA as a 'court claim service address' and cannot be relied upon, because it's an address where the vehicle was kept at a historical point in time (which may not be where the keeper lives; it's where the car was reported 'kept' last time the DVLA heard).

20. There is no safe presumption that a DVLA vehicle address is or was a valid address where a Defendant can be served, especially months or years later, especially where there is reason to believe letters are not being received. Silence after sending a Notice to Keeper, a reminder, another reminder, a final reminder, and then a Letter before Claim is a clear indicator that the keeper may not live there.

k2122

21. A claim sent to an old DVLA address with no soft trace checks (costing as low as 29 pence and offered free by debt collectors connected to the parking industry) fails to meet the BPA Code of Practice and 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.

22. 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.”

23. Also under CPR 13.3 (1)(a) the court may set aside or vary a judgment entered under Part 12 if the defendant has a real prospect of successfully defending the claim. There are very good reasons to set aside this exaggerated claim, which includes a disproportionate and indeed, false 'debt recovery' sum. In fact, no debt recovery occurred nor cost the Claimant any money whatsoever, in addition to £100 parking charge. The Government has described the false fixed 'fee' of £70 as 'designed to extort money from motorists' in the new statutory Code of Practice last February and has banned it. Furthermore, despite the claim describing the vehicle as parked “in” the private car park, it is clear from the evidence within the claim that the vehicle was not within the gated premises of the car park, and is parked on a publicly accessible curb side outside the car park by a church building. From this curb side, the signage is neither sufficiently visible, nor does it clearly indicate that the curb side as part of the private land of the car park. The Defendant has good prospects of defending a claim, if served with one, and the Claimant should be required to file afresh, if they believe they have a cause of action.

24. I therefore respectfully request that the Court sets aside the judgment in this claim and allows 14 days for me to submit my defence, and I ask the Court to kindly consider the reimbursement of the fee of £275 from the claimant should this request be successful.

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.

k2122

Had to post it in a few chunks to get through the filter. Do let me know if it needs more work. Thanks everyone for the help thus far.

Le_Kirk

k2122 said:

State that if Elms Legal try to mislead the court with a 'draft Consent Order' (as they have reportedly done before in similar cases) it is no such thing.

Thanks for this - I've amended my WS using more recent examples. I am unsure by what is meant specifically by the section in bold, and seek your guidance if possible on how to phrase this within the WS which I'll post now.

You could look at this thread 16 April at 11:35PM where the claimant tried to slip in a draft consent order purporting that it had been signed and agreed by the defendant and agreeing to "no order as to costs".

Le_Kirk

1.     I make this Witness Statement in support of the application (dated 7th May 2023) requesting to:
a.     Set aside the default judgment in this case (Claim No. X, Judgment dated 15/03/2023) 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.

The above does not make grammatical sense - I know lots of posters have used it but just break it down and see if anyone thinks it is right.  It is a list of items that follow "requesting to: -"

1.     I make this Witness Statement in support of the application (dated 7th May 2023) requesting to:
a.     Set aside the default judgment in this case (Claim No. X, Judgment dated 15/03/2023) as it was not properly served at my current address.

that is fine and it flows

1.     I make this Witness Statement in support of the application (dated 7th May 2023) requesting to:
b.     Order for the original claim to be dismissed.

Nonsense

1.     I make this Witness Statement in support of the application (dated 7th May 2023) requesting to:.    
 Order for the Claimant to pay the Defendant £275 as reimbursement for the set aside fee.

Also does not make sense.

Maybe: -

1.     I make this Witness Statement in support of the application (dated 7th May 2023) requesting to: -
a.     Set aside the default judgment in this case (Claim No. X, Judgment dated 15/03/2023) as it was not properly served at my current address.
I append: -
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.

Just my (pedantic) thoughts!

k2122

Le_Kirk said:

k2122 said:

State that if Elms Legal try to mislead the court with a 'draft Consent Order' (as they have reportedly done before in similar cases) it is no such thing.

Thanks for this - I've amended my WS using more recent examples. I am unsure by what is meant specifically by the section in bold, and seek your guidance if possible on how to phrase this within the WS which I'll post now.

You could look at this thread 16 April at 11:35PM where the claimant tried to slip in a draft consent order purporting that it had been signed and agreed by the defendant and agreeing to "no order as to costs".

Thanks, I've added: 

25.     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.

I've also fixed the grammar with your suggestions! It must be a slight bugbear seeing this happen repeatedly..