CCJ for PCN I knew nothing about

hallie28

B789 said:

The debt arises from an agreement by conduct. It is not a written agreement. If that's what you mean?

Great point.

I am taking the wording directly from the pre-action protocol 3.1 PRE-ACTION PROTOCOL FOR DEBT CLAIMS Redraft spring 2015 (justice.gov.uk)

It only gives the option of the debt arising from oral agreement or written agreement. If it's agreement by conduct, do I just leave this bit altogether. 

Coupon-mad

Do I risk adding a paragraph about the letter they sent to my real address, or just leave it for now and submit later in the process if they make reference to it at a later stage.

Totally ignore that point, it is irrelevant to your defence against the PCN really.

hallie28

Hi, the letter from the courts doesn't provide an email address. Do you know which one I should use out of these:

KeithP

hallie28 said:

Hi, the letter from the courts doesn't provide an email address. Do you know which one I should use out of these:

None of those. Where did you find that old stuff?
I would say that most, if not all, of those email addresses are out of date by several years.

Use - hearings.birmingham.countycourt@justice.gov.uk

DOMRIDER

hallie28 said:

Thank you.. I think I have my head around it. 

I have pretty much copied the example in the newbies thread. The only bit I have amended is section 3 specifically relating to their evidence about doing a soft trace. I am unsure the correct legal terms to use for lying and being intentionally deceitful, so unsure if this bit needs removing. Any advice would be appreciated as I need to submit this today. I've added the whole Skeleton Argument for compeltedness

1.    Under CPR 13.2, the Court must set aside a judgment entered under part 12 if judgment was wrongly entered. Given that CPR 6.9 (3) was not met, CPR 13.2 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 at (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."

2. Given that more than 4 months have passed from issue of proceedings, and service of the claim was defective (i.e. it was never served), the Defendant submits that this particular claim is dead and the period for service cannot be extended by this application process. If the Claimant believes there is a cause of action, then the correct procedure would be to file a claim afresh and to the correct address after providing the Defendant with the information required under the pre-action protocol for debt claims, issued this time to the correct name and address for service for this Defendant (address). 

2.2 There are several authorities for this, including the judgment in Boxwood [2021] EWHC 947 (TCC)1, 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.”

2.3 In Vinos v Marks & Spencer plc [2001] 3 All ER 784 2 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.

2.4 In judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch) 3 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." 

2.5 In Piepenbrock-v-Associated News Limited [2020] EWHC 1708 (QB) 4 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.

“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…

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…

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].”

Mr Justice Nicklin concluded, “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.”

3. The Defendant believes that the Claimant did not adhere to CPR 6.9 (3) as they failed to show due diligence in using an address at which the Defendant no longer resided. The Claimant did not have any response from communications sent to XXX but then filed a claim there anyway.

3.1 The Claimant states in paragraph 8. of their witness statement that their solicitors carried out a search via Experian and wrote to this address with no response received.  This letter was not received by myself. It was not submitted as evidence with their witness statement. I submitted a Subject Access Request to both the Claimant and their solicitors on 26th July 2023. I received responses from the Claimant on 28th July 2023 and from Gladstone’s on 14th August 2023. Neither SAR responses revealed any attempt to complete a ‘soft search’ or any letters addressed to addresses other than XXX. On this basis, there is no evidence to suggest that they have completed the searches required to adhere to CPR 6.9 (3). Furthermore, unless evidence is provided of the soft search and the letter addressed to the ‘possible new address’, I propose that this is intentional misinformation and a contempt of court.

3.2 Had the Claimant carried out an up-to-date CRA ‘bulk trace’ for 28p, they would have found the correct address of xxxxxx through a variety of sources, such as the electoral register. I have been contacted by another legal team via this route, relating to a Parking Charge Notice that pre-dates the current claim.

3.3 The claimant did not take reasonable steps to ascertain the address of the Defendant’s current residence despite having some 12 months to establish an address. This has led to the claim being incorrectly served to an old address and an irregular judgment.

4. 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.

4.1. The system is called 'KADOE' (Keeper On 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.

5.  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.”

Hi hallie28, I'm just reviewing your fantastic thread. It's helped greatly. Just wanted to point out that your skeleton argument has an address that you might want to redact (3.2) 

hallie28

HELP NEEDED! I am going to explode. 

So since the above thread, I sent my defence on 2nd October 2023. An email from their solicitors on 6th October stating their intention to proceed with their claim and an attached directions questionnaire. 15th November I received an email with their particulars of claim. I haven't had any correspondence from the courts until today.

I have just received a 'general form of judgement or order' (the order dated 8th December, the letter dated 6th January, received today 11th January) stating:

IT IS ORDERED THAT 

1. permission for defendant, if so advised or if she wishes to do so, to file and serve an amended Defence by 4pm on 31 January 2024

2. This order has been made by the Court of its own initiative under CPR3.3. Any party affected by this order may apply to have it set aside, varied or stayed within 7 days on which the order is served on that party. 


What does this mean? A CCJ? Can anyone translate please?

Why would I need to file an amended Defence if I submitted one at the last request? 

KeithP

It appears to me that the court has decided that the Claimant's case wasn't at all well pleaded - as you pointed out in your Defence.

The Claimant has been given another opportunity to clarify their position, and apparently having done so, then you, as the Defendant, have the opportunity to revise your Defence to address the points raised.

Although having said that, surely the court would've told you they were rejecting the Claimant's Particulars?
And when the Claimant filed their revised Particulars, did they or the court not send you a copy?

Coupon-mad

Show us the POC.

Show us the defence you finally put in, as we only saw the previous draft.

hallie28

My defence was:

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

The facts as known to the Defendant:

2. It is admitted that the Defendant was the registered keeper and driver of the vehicle in question.

3. The defendant was not made aware of the Parking Charge Notice until they applied for a mortgage on 15th May 2023 and found that they had a CCJ. When immediately contacting the courts, they were informed that a Default Judgement had been entered on 14th November 2022. The court proceeding had been sent to an old address of the defendant (ADDRESS), hence the inability for the defendant to defend the claim. The defendant was successful in having the CCJ set-aside on 19th September 2023.

4. The Defendant was 6 months pregnant at the timepoint on the PCN. They did not receive a PCN on the windscreen of their car to notify them of the alleged charge. They have only ever visited the address in question very briefly on one occasion, when they needed to use public facilities due to antenatal sickness whilst driving. It is unclear if this is the occasion when the PCN was given, as there were multiple drivers of the vehicle. Nonetheless, pregnancy is a protected characteristic, and the defendant acted in the most appropriate manner by pulling up in the safest location. For UK Car Park Management to penalise a pregnant woman from using their facilities for a few minutes is discriminatory and morally abhorrent.

5. The vehicle that the claim refers to was sold 23rd August 2021, thus there is limited supporting documentation. The failure to send communication to the defendant regarding the PCN has meant that they have been unable to collect adequate evidence for the purpose of collating a defence, which has disadvantaged them in this matter.

6. CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence." It is clear that the Claimant, having obtained a previous address from the DVLA and having received no response, did not perform the requisite "reasonable diligence" required to find the defendants correct address to serve the claim form. Had reasonable diligence been taken, the correct personal details are found in multiple public sources, such as the electoral register, DVLA, HMRC.

7. The address on the claim is (ADDRESS 1). The defendant moved from this address to their current address at (ADDRESS 2) in October 2017. The finance settlement agreement for the vehicle related to the PCN is attached (Exhibit 1) and shows their correct address. Their driving licence is also attached (Exhibit 2), issued on 29th April 2018, showing the correct address. Attached is a claim form (Exhibit 3) they received from a different parking company, relating to a PCN from 2017 (pre-dating the claimants PCN). This demonstrates that the current address could be located by parking companies and their associated solicitors had they shown due diligence and complied with CPR 6.9 (3).

8. The Claimant did not have any response from communications sent to (ADDRESS 1) but then filed a claim there anyway. In their witness statement regarding the CCJ set-aside, they report that they did not file the claim to the ‘possible alternative address’ as they did not receive a response, thus “that address could not be confirmed for GDPR purposes”. There is no rationale for why a non-response at (ADDRESS 1) did not meet those same criteria. Had the claimant completed the Experian search as claimed and found an alternative address, this would be the usual or last known residence of the Defendant for the purposes of CPR 6.9, as this search would have been completed after the DVLA request.

9. As the claim form was not served at the defendants current address, this is a breach of CPR 13.2 (a). Due to this, the judgment was wrongly entered as the defendant was unable to submit an acknowledgement of service in the absence of notification of the case (CPR 13.3).

10. The only opportunity the claimant has had to respond to the claim, is through this defence, at which point the claim sum is inflated and disproportionate to the alleged parking violation.  Thus the Defendant was denied any opportunity to appeal because the current parking industry line is "it's too late - pay up and pay more".  This despite the fact that the Government's new statutory Code (linked later in this defence) requires a fresh Notice to be served at the original rate, and appeal to be made available, in cases where the first Notice was not received.

11. Under CPR 13.2, the Court must set aside a judgment entered under part 12 if judgment was wrongly entered. Given that CPR 6.9 (3) was not met, CPR 13.2 applies and the CCJ should be set aside. Given that more than 4 months have passed from issue of proceedings, and service of the claim was defective (i.e. it was never served), the Defendant submits that this particular claim is dead and the period for service cannot be extended by this application process. If the Claimant believes there is a cause of action, then the correct procedure would be to file a claim afresh and to the correct address after providing the Defendant with the information required under the pre-action protocol for debt claims, issued this time to the correct name and address for service for this Defendant (address).

12. In addition to these facts, a recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the PoC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The Defendant asserts that this Claim is based upon an agreement by conduct. The Defendant asserts that the Claimant has failed to specify how Contract terms have been breached by the conduct of the Defendant in the PoC. Please see the transcript in Exhibit 4.  

13. Similarly, at the Wakefield County Court on 8th September 2023, District Judge Robinson considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim out without a hearing. Please see Exhibit 5.

14. Furthermore, in January 2023 (also without a hearing) District Judge Sprague, sitting at the County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation of his reasoning. Please see Exhibit 6.

 

15. Furthermore, at Manchester District Judge McMurtrie and District Judge Ranson also struck out a claim (again without a hearing) on the grounds of POC’s lacking clarity, detail, and precision. As stated in the final image below, the Claimant’s solicitors confirmed they would not file an amended POC, demonstrating again the reliance of a number of firms on robo-letters and illegitimate practices. Please see Exhibit 7.

16. The Defendant believes the Claim should be struck out at Allocation stage and should not have been accepted by the CNBC due to a represented parking firm Claimant knowingly breaching basic CPRs.

17. The Claimant will concede that no financial loss has arisen and that in order to impose an inflated parking charge, as well as proving a term was breached, there must be:

(i). a strong 'legitimate interest' extending beyond mere compensation for loss, and

(Ii). 'adequate notice' of the 'penalty clause' charge which, in the case of a car park, requires prominent signs and lines.

18. The Defendant denies (i) or (ii) have been met. The charge imposed, in all the circumstances is a penalty, not saved by ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which is fully distinguished.


Exaggerated Claim and 'market failure' currently being addressed by UK Government

19. The alleged 'core debt' from any parking charge cannot exceed £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred by this Claimant, who is put to strict proof of:

(i). the alleged breach, which is not pleaded in the POC and requires further and better particulars, and

(ii). a breakdown of how they arrived at the enhanced sum in the POC, including how interest was calculated, which looks to be improperly applied on the entire inflated sum, as if that was all overdue on the day of the alleged event.

20. The Defendant avers that this claim is unfair and inflated and it is denied that any sum is due, whether in debt or damages. This Claimant routinely pursues an unconscionable fixed sum added per PCN, despite knowing that the will of Parliament is to ban it.

21. This case is a classic example where adding exaggerated fees funds the 'numbers game' of bulk litigation of weak and/or archive parking cases.  MoJ statistics of bulk litigators reveal that there are several hundred thousand parking claims per annum, with some 90% causing default CCJs totalling hundreds of millions of pounds.  No checks and balances are likely to have been made to ensure facts, merit or a proper cause of action (given away by the woefully inadequate POC).

22. The Department for Levelling Up, Housing and Communities ('the DLUHC') published a statutory Parking Code of Practice in February 2022, here: https://www.gov.uk/government/publications/private-parking-code-of-practice.

The Ministerial Foreword is damning: "Private firms issue roughly 22,000 parking tickets every day, often adopting a labyrinthine system of misleading and confusing signage, opaque appeals services, aggressive debt collection and unreasonable fees designed to extort money from motorists." 

23. Despite legal challenges delaying the Code - marked as temporarily withdrawn - it is thankfully 'live' after a draft Impact Assessment (IA) was published on 30th July 2023. The Government's analysis exposes what they say are industry-gleaned facts about supposed 'fees'. The analysis is found here:  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf

Paragraphs 4.31 and 5.19 state that the parking industry has shown the DLUHC that the true minor cost of what the former calls debt recovery or 'enforcement' ( = pre-action) stage totals a mere £8.42 per case (not per PCN).

24. With that in mind, it is clear that the extant claim has been enhanced by an extreme sum, believed to be routinely retained by the litigating legal team, not the Claimant.  In this Claim it is additional to the intended 'legal representatives fees' cap set within small claims track rules.  This conduct has been examined and found - including in a detailed judgment by Her Honour Judge Jackson, now a specialist Civil High Court Judge on the Leeds/Bradford circuit - to constitute 'double recovery'. The Defendant takes that position.

25. The draft IA shows that the intimidating letter-chains actually cost 'eight times less' than the seemingly 'price-fixed' +£70 per PCN. This causes consumer harm in the form of almost half a million wrongly-enhanced CCJs each year, that District Judges are powerless to prevent.  This false fee was enabled by the self-serving Codes of Practice of the rival parking Trade Bodies who suddenly aligned in 2021 re allowing +£70, each led by a Board of the very parking operators and debt firms who stood to gain from it. 

26. It is denied that the purported damages/fee sought was incurred or is recoverable. Attention is drawn to paras 98, 100, 193, 198 of Beavis.  Also ParkingEye Ltd v Somerfield Stores Ltd ChD [2011] EWHC 4023(QB) where the parking charge was £75, discounted to £37.50 for prompt payment.  Whilst £75 was reasonable, HHJ Hegarty (decision ratified by the CoA) held in paras 419-428 that 'admin costs' inflating a parking charge to £135 was not a true reflection of the cost of template letters and 'would appear to be penal'.

27. This Claimant has not incurred costs. A parking charge model already includes what the Supreme Court called an 'automated letter-chain' and it is a model that generates a healthy profit.  In Beavis, there were 4 pre-action letters/reminders and the £85 'PCN' was held to more than cover the minor costs of the operation.  The DLUHC's IA confirms that the parking charge more than covers the minor costs of the letters (NB: the debt collectors do not charge anything in failed collection cases).

28. Whilst the new Code is not retrospective, all non-monetary clauses went unchallenged by the parking industry. The 2022 DLUHC Code will replace the self-serving BPA & IPC Codes, which are not regulation and carry limited weight.  In a clear steer for the Courts and for the avoidance of doubt: the DLUHC say they are addressing 'market failure'.

29. In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper.  Further, the Claimant is put to strict proof of POFA compliance.

30. The Defendant avers that the DLUHC's analysis now overrides plainly wrong assumptions made by Circuit Judges steered by Counsel in astonishingly weak appeal cases that the parking industry engineered their way: Britannia v Semark-Jullien, One Parking Solution v Wilshaw, Vehicle Control Services v Ward and Vehicle Control Services v Percy. Far from being persuasive, regrettably these one-sided appeals cherry-picked litigant-in-person consumers without the wherewithal to appeal. Incorrect presumptions were made in every case; and there were major evidence discrepancies (e.g. in Wilshaw, where the Judge was also oblivious to the DVLA KADOE requirement for landowner authority). One Judge inexplicably sought out for himself and quoted from the wrong Code of Practice (Percy). In Ward, a few seconds' emergency stop out of the control of the driver was wrongly aligned with the agreed contract in Beavis.

31. The Defendant avers that there was no agreement to pay a parking charge or added 'damages' which were not even incurred, let alone quantified in bold, prominent text. This Claimant failed to erect well-placed, large and readable signs on a par with the yellow & black warnings seen in Beavis, and unlike the signage requirements set out in the DLUHC Code which reflects the already statutory requirement for 'prominence' (Consumer Rights Act 2015 - the 'CRA').

hallie28

CRA breaches

32. Section 71 CRA creates a statutory duty upon Courts to consider the test of fairness whether a party raises it or not. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms Guidance (CMA37, para 5.14.3):

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf

33. The CRA introduced new requirements for 'prominence' of both terms and 'consumer notices'.  In a parking context, this includes a test of fairness and clarity of 'signs & lines' and all communications intended to be read by consumers. Signage must be prominent (lit in hours of darkness/dusk) and all terms must be unambiguous and contractual obligations clear.

34. The Defendant avers that the CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties of fair/open dealing and good faith (NB: this does not necessarily mean there has to be a finding of bad faith).  

 

ParkingEye v Beavis is distinguished

35.  Unlike in Beavis, the penalty rule remains engaged, not least due to the unconscionable added 'Fee'.  The CRA covers disproportionate sums, which are not exempt from being assessed for fairness because a 'fee' is not the core price term and neither was it prominently proclaimed on the signs.  

36. The Supreme Court held that deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from alleged breach.  The intention cannot be to punish a driver, nor to present them with hidden terms or cumbersome obligations ('concealed pitfalls or traps').  In the present case, the Claimant has failed those tests, with small signs, hidden terms and minuscule small print that is incapable of binding a driver.  Court of Appeal authorities about a lack of ‘adequate notice’ of a parking charge include:

(i) Spurling v Bradshaw [1956] 1 WLR 461 (Lord Denning's ‘red hand rule’) and

(ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,

both leading authorities that a clause cannot be incorporated after a contract has been concluded; and

(iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000, where Ms Vine won because it was held that she had not seen the terms by which she would later be bound, due to "the absence of any notice on the wall opposite the parking space''. 

37.  Fairness and clarity of terms and notices are paramount in the DLUHC Code and these clauses are supported by the BPA & IPC. In Parking Review, solicitor Will Hurley, CEO of the IPC, observed: "Any regulation or instruction either has clarity or it doesn’t. If it’s clear to one person but not another, there is no clarity. The same is true for fairness. Something that is fair, by definition, has to be all-inclusive of all parties involved – it’s either fair or it isn’t." 

 

Lack of standing or landowner authority, and lack of ADR

38. DVLA data is only supplied if there is an agreement flowing from the landholder (ref: KADOE rules).  It is not accepted that this Claimant (an agent of a principal) has authority to form contracts at this site in their name.  The Claimant is put to strict proof of their standing to litigate.

39. The Claimant failed to offer a genuinely independent Alternative Dispute Resolution (ADR). The DLUHC Code shows that genuine disputes such as this should see PCNs cancelled, had a fair ADR existed.  The rival Trade Bodies' time-limited and opaque 'appeals' services fail to properly consider facts or rules of law and reject most disputes: e.g. the IAS upheld appeals in a woeful 4% of decided cases (2020 Annual Report).  This consumer blame culture and reliance upon their own 'appeals service' (described by MPs as a kangaroo court and about to be replaced by the Government) should lead Judges to know that a fair appeal was never on offer.

 

Conclusion

40. There is now evidence to support the view - long held by many District Judges - that these are knowingly exaggerated claims that are causing consumer harm.  The July 2023 DLUHC IA analysis shows that the usual letter-chain costs eight times less than the sum claimed for it.  The claim is entirely without merit and the POC embarrassing.  The Defendant believes that it is in the public interest that claims like this should be struck out. 

41. Given that the claim/judgement was sent to the wrong address, and the claimant did not get the opportunity to acknowledge service or defend the claim prior to this stage, and that more than 4 months have passed from issue of proceedings, and service of the claim was defective (i.e. it was never served), the Defendant submits that this particular claim is dead and the period for service cannot be extended by this application process.

42. In the matter of costs, the Defendant seeks:

(a) standard witness costs for attendance at Court, pursuant to CPR 27.14, and

(b) a finding of unreasonable conduct by this Claimant, and further costs pursuant to CPR 46.5. 

(c) £275 for the costs of applying to set aside the associated CCJ

43.  Attention is drawn to the (often-seen) distinct possibility of an unreasonably late Notice of Discontinuance. Whilst CPR r.38.6 states that the Claimant is liable for the Defendant's costs after discontinuance (r.38.6(1)) this does not 'normally' apply to claims allocated to the small claims track (r.38.6(3)). However, the White Book states (annotation 38.6.1): "Note that the normal rule as to costs does not apply if a claimant in a case allocated to the small claims track serves a notice of discontinuance although it might be contended that costs should be awarded if a party has behaved unreasonably (r.27.14(2)(dg))."   

 

Statement of Truth

I believe that the facts stated in this defence 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.

Defendant’s signature:

Date: 20th September 2023