Discovered a CCJ on Credit Report. Incorrect Address.

Coupon-mad

So the reference to the IPC CoP is wrong and must be replaced by the rival BPA CoP quote about checking derails before litigation. Google & find that.

The rest looks great - except this doesn't match what your draft order says

3. What order are you asking the court to make and why?
An order that the judgement in default is set aside pursuant to CPR 13.2, alternatively 13.3, and the defendant be allowed to file a defence in the case. The defendant only discovered the judgment when they signed up to the Experian credit reference agency on 19th of May 2023 and acted promptly in making this application.

DOMRIDER

Coupon-mad said:

So the reference to the IPC CoP is wrong and must be replaced by the rival BPA CoP quote about checking derails before litigation. Google & find that.

The rest looks great - except this doesn't match what your draft order says

3. What order are you asking the court to make and why?
An order that the judgement in default is set aside pursuant to CPR 13.2, alternatively 13.3, and the defendant be allowed to file a defence in the case. The defendant only discovered the judgment when they signed up to the Experian credit reference agency on 19th of May 2023 and acted promptly in making this application.

Perfect - thank you. Will aim to redraft it and send it off tonight. Thank you very much for your help.

DOMRIDER

1505grandad said:

My apologies for the confusion  -  I was thinking of the op where Premier Parking Ltd was stated  -  you have of course now stated a correct name of a ppc.

However the claimant is therefore a BPA AoS member so reference to the IPC CoP is not relevant. (There are a couple of IPC AoS members with "Premier Parking" in the title).

No problem, easily done. I will review and back come to this. 

Le_Kirk

1.  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 between the PCN on 31st of December 2021 and the claim on 17th of April 2023.

Looks a little better as above.  Also i your Draft Order, you should put the dates of the judgments as it helps the judge and the court, rather then leaving it blank.

DOMRIDER

Hi all,

Coupon-mad said:

So the reference to the IPC CoP is wrong and must be replaced by the rival BPA CoP quote about checking derails before litigation. Google & find that.

The rest looks great - except this doesn't match what your draft order says

3. What order are you asking the court to make and why?
An order that the judgement in default is set aside pursuant to CPR 13.2, alternatively 13.3, and the defendant be allowed to file a defence in the case. The defendant only discovered the judgment when they signed up to the Experian credit reference agency on 19th of May 2023 and acted promptly in making this application.

Coupon-mad 
I have reviewed the BPA CoP and found the relevant quote regarding reasonable endeavours to ensure that the contact details are correct. Please refer to para. 16 and 17 in my WS for the updated text. 

Regarding the draft order, I have re-drafted this as below. Can you please confirm I am on the right track with this? 

Thanks for all your help on this matter so far. 

CLAIM No: XXX

BETWEEN:
XXX (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 1st of June 2023;

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;

IT IS ORDERED:

1. The Judgment by default entered against the Defendant on 17th of April 2023 is hereby set aside.

2. An order that the judgement in default is set aside pursuant to CPR 13.2, alternatively 13.3, and the defendant be allowed to file a defence in the case. 

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

4. The Defendant reserves the right to file an amended Defence by 4pm within 14 days after the date on which the judgment is set aside

DOMRIDER

Le_Kirk said:

1.  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 between the PCN on 31st of December 2021 and the claim on 17th of April 2023.

Looks a little better as above.  Also i your Draft Order, you should put the dates of the judgments as it helps the judge and the court, rather then leaving it blank.

Thanks Le_Kirk WS now updated. 

Case number

XXXXXXXX

WITNESS STATEMENT

I, XXXXXX XXXXXX, of XXXXXX 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 17th of April 2023, in default due to a defective service of Claim.

2. I was not aware of the claim made against me until I discovered the judgment when I signed up to the Experian credit reference agency on 19th of May 2023. At which point 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 BPA Code of Practice 24.1c and CPR 6.9, as more than 12 months have passed between the PCN on 31st of December 2021 and the claim on 17th of April 2023.

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

5. Whilst I am unsure which date the claim was issued, it has been more than four months since the CCJ was issued, 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 as per CPR 13.3.

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

THE CLAIMANT FAILED TO SERVE THE CLAIM

8. I understand that the Claimant obtained a Default Judgment against me as the Defendant on 17th of April 2023. I am aware that the Claimant is Premier Park Ltd and that the assumed claim is in respect of an unpaid Parking Charge Notice.

9. CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence."  As I have not had any correspondence in relation to this matter, other than the brief case details emailed to me on 23rd of May 2023 from the courts, I am unsure of the specific dates that the claim was made. Nonetheless, 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 my correct address to serve the claim form in. Had reasonable diligence been taken, my personal details are found in multiple public sources, such as the electoral register, DVLA, HMRC. The claimant did not have any contact with the defendant, and thus should have considered they had obtained incorrect details. It appears that the claimant continued to issue correspondence to the incorrect address intentionally, in line with the concerns raised by the government regarding this abhorrent industry (Relevant case law cited below in paragraphs 25 - 32).

10. The claim form was not served at my current address, thus I was not aware of the Default Judgment until I checked my credit score on the 19th of May 2023. This is a breach of CPR 13.2 (a) as the claim form was never served to my current address. Due to this, the judgment was wrongly entered as I was unable to submit an acknowledgement of service in the absence of notification of the case (CPR 13.3).

11. The address on the claim is XXXXXX. I moved from this address to my current address at XXXXXX in November 2021. In support of this, my drivers liecnce [1] is appended to this document. 

12. 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.

13. 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 18 months to establish a valid address. This has led to the claim being incorrectly served to an old address and an irregular judgment.

14. 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.

15. The vehicle that the claim refers to was sold in March 2022, thus I have limited supporting documentation. The failure to send communication to me regarding the PCN has meant that I have been unable to collect adequate evidence for the purpose of collating a defence, which has disadvantaged me in this matter. My driving licence [1] attached, issued on 22nd January 2022, showing my correct address.

 

THE BRITISH PARKING ASSOCIATION CODE OF PRACTICE WAS NOT FOLLOWED

16. British Parking Association (BPA) Code of Practice which requires a soft trace to be undertaken was not followed. The BPA Code of Practice 2019 Version 8 – January 2020, clause 24.1c states;

17. “Before serving a Letter Before Claim and prior to the issue of proceedings, Operators must, if no responses have been received to the NTD/NTK/reminder letters, take reasonable endeavours to ensure that the contact details for the person you are writing to are correct.”

 

DVLA ADDRESS DATA MAY NOT BE RELIABLE

18. 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.

19. 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.

20. 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').

21. A claim sent to an old DVLA registered keeper address with no soft trace checks (costing as little as 28 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.

22. 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.

23. There is a wealth of case law making reference to the failures of parking companies to correctly ascertain the addresses of defendants. Of note:

24. In Collier v Williams [2006] 1 WLR 1945 (CA) LJ Dyson said

25. "What state of mind in the server is connoted by the words "last known"? … As we have said, there is an important distinction between belief and knowledge. It is a distinction particularly well understood in the criminal law, but elsewhere too. The draftsman of the rules deliberately chose the word "known". In our view, knowledge in this context refers to the serving party's actual knowledge or what might be called his constructive knowledge, i.e. knowledge which he could have acquired exercising reasonable diligence. We arrive at this conclusion on the basis of what we understand the words to mean. We do not believe that there are any policy reasons which require us to give the words a strained or unusual meaning. The risk of satellite litigation is inherent in whatever interpretation is adopted. It is true that a defendant who has not in fact received the claim form should have no difficulty in setting aside a default judgment. But it is not desirable that defendants should be put to the trouble and expense of making applications to set aside default judgments."

26. The same sentiment was echoed by:

27. HHJ Hacon in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)

28. HHJ Behrens in Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012)

29. In Broadside Colours And Chemicals Ltd, Re (No 2) [2012] EWHC 195 (Ch) (20 February 2012) it would appear that obtaining the information from a source that an individual is required by law to keep updated is adequate knowledge. However, I would submit that it is incumbent to have recent knowledge and not outdated knowledge as HHJ Hacon put it in MB Garden Buildings Ltd v Mark Burton Construction Ltd & Anor [2014] EWHC 431 (IPEC) (28 February 2014)

30. As it was put in Dubai Financial Group Llc v National Private Air Transport Services Company (National Air Services) Ltd [2016] EWCA Civ 71 (09 February 2016) by LJ McCombe

31. “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 acknowledgment. He is simply not in default at all."

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

DOMRIDER

RELEVANT CASE LAW

32. 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.

33. 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.”

34. 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." 

35. 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.

36. “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 [...]

37. 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. [...]

38. 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]. [...]

39. 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.”

40. 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.

41.  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):

42. “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).

43. 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.

44. 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

45. 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). 

46. 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.

47. 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.

48. 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.

49. This claim should be struck out as more than 4 months have passed (CPR 7.5 refers) from issue of proceedings and service of the claim was defective (i.e. it was never served).

50. I have responded to this matter as promptly as possible. I discovered a CCJ was lodged onto my credit file on the 19th of May 2023. Shortly after on the 23rd of May 2023 I contacted the County Court Business Centre to obtain relevant information relating to this default judgment. The following week on 31st May 2023 I have submitted my case in order to set-aside this judgment and fairly present my case.

51. Based on the information provided, I was unable to support this assertion. I maintain that the Default judgment against me was inaccurately issued and therefore should be invalidated. I respectfully request the Court to take into account the possibility of reimbursing the £275 set aside fee from the claimant  in the event that this appeal is successful, considering their failure to conduct a comprehensive address search, which could have been easily accomplished with a minimal expenditure of 28p.

Statement of truth:

52. 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: 

DOMRIDER

Should I continue focusing on the importance of verifying details prior to taking legal action, or should I delve deeper into determining if the signage was adequate? Currently, my witness statement will likely include two exhibits confirming my correct address at the time. Would my defence be bolstered if I pursued gathering additional evidence, or is the claimant's failure to verify my details sufficient in itself and renders further evidence irrelevant?

Not_A_Hope

Your latest draft order might need a bit more work as it seems to have lost any reference to

‘The claim should be struck out as more than 4 months has passed from issue of proceedings [date].’ which is referred to in your WS.

You want to be trying to get the judge to get rid of the claim as well as the CCJ at this stage. 

Coupon-mad

Errrmm...
I wasn't telling you to change the Draft Order!  Read my reply again, that isn't what I said to change.