Discovered a CCJ on Credit Report. Incorrect Address.

KeithP

DOMRIDER said:

Also, the court date is next Monday...

Are you saying the hearing is tomorrow, or...??

Coupon-mad

DOMRIDER said:

Coupon-mad said:

I would, because you can also now add CEL v Chan which is about a CCJ set aside case and supports your request to dismiss the claim as well as to set aside the CCJ and grant your costs.

Search the forum. Chan is everywhere!

Also is this a case where you were driving or not?

Thank you. I'll review this and attempt to pull a draft together.

Did you submit CEL v Chan?

If not then put in a skeleton argument attaching it (unless your hearing is tomorrow...you will find  skeleton arguments in CCJ threads such as the one by @Jack5656 (but beware his case was pre-Chan judgment so you ALSO need Chan).

I advised you to send Chan over 2 weeks ago.  Of course it applies to your case; it applies to every parking case and certainly a CCJ set aside application.

I have the following questions regarding their WS that I could do with some advice on. This is in relation to the claim and not my liability. 

1. It is denied that a period exceeding 4 months passed between the claim form being issued and the Judgement being obtained. The Claim form was issued on XX March 2023 and the Judgement in Default was obtained on XX April 2023.

Have I made an error here and misunderstood the dates in relation to the claim? I took it that it was in relation to the issue of proceeding from the date of the PCN and put this on the N244. How should I respond?

You are both wrong. Surely you read the case law you were arguing that appeared in your WS? The 4 months runs from the date of the claim form and the argument in your WS tells you what should have been done within that 4 months.

It isn't what they say and it isn't what you assumed. Read the cases you are relying on. Read your WS.

2. Due to the period that had elapsed between the date of the PCN (XX/XX/2021) the Firm carried out a trace via UK Search on XX/10/2022. This was done to satisfy the requirements of CPR, in relation to an address for service if a claim was to be issued. The Trace results were returned the day after. The Defendant was not found by UK Search.

"Why is there a lack of written records regarding the search?"

Exactly! 

Save that observation for the hearing.

3. In the event that notwithstanding the above the court still wishes to consider whether or not to exercise its discretion with a view to setting the Judgment aside, the Claimant puts the Defendant to full proof that they have acted promptly and without delay in making this application and that they have a reasonable prospect of successfully defending the Claim if the matter is returned to Claim stage.

In respect of the first limb of the above criteria, in view of the aforementioned paragraphs, the date the Claim was issued and as 3 months passed before the Defendant made the application; the Claimant respectfully submits the Defendant has not acted promptly in making the application and for this reason, the application ought to be struck out.

"I would emphasise that my lack of knowledge about the claim being filed is central to this matter. I was entirely unaware of the claim."

Yes.

As you'll know from reading other CCJ set aside threads this Summer to learn from them, this is what they always say and they are wrong.

4. "I have a few questions on their response to my application, namely their statement of…"

It is submitted that the evidence filed in support of the Claimants case is extremely compelling and that there is little or no prospect of the Defendant being able to successfully defend the claim.

Again, none if this is new or different.

As you'll know from reading other CCJ set aside threads this Summer to learn from them you just need some notes about your possible defence if the Judge asks.

But you realise the whole point of Chan is to get the whole claim struck out (no defence needed) and yet you haven't added it yet..., 

DOMRIDER

KeithP said:

DOMRIDER said:

Also, the court date is next Monday...

Are you saying the hearing is tomorrow, or...??

No next Monday (6th).

DOMRIDER

1. It is denied that a period exceeding 4 months passed between the claim form being issued and the Judgement being obtained. The Claim form was issued on XX March 2023 and the Judgement in Default was obtained on XX April 2023.
You are both wrong. Surely you read the case law you were arguing that appeared in your WS? The 4 months runs from the date of the claim form and the argument in your WS tells you what should have been done within that 4 months.
It isn't what they say and it isn't what you assumed. Read the cases you are relying on. Read your WS.

Reviewing the WS further... It highlights that if a claim is not served properly within the specified time frame, usually four months, it becomes "dead," and the court cannot revive or extend it. This is supported by the various legal cases referenced which illustrate the limited scope for extending the service period.

Additionally, it references CPR 12.3(1), which outlines the conditions necessary for obtaining a judgment in default, stressing that the time for acknowledging service must have expired. In cases where the claim was not properly served, this time limit hasn't even started, and thus, there's no basis for obtaining a default judgment.

2. Due to the period that had elapsed between the date of the PCN (XX/XX/2021) the Firm carried out a trace via UK Search on XX/10/2022. This was done to satisfy the requirements of CPR, in relation to an address for service if a claim was to be issued. The Trace results were returned the day after. The Defendant was not found by UK Search.

"Why is there a lack of written records regarding the search?"

Exactly! 

Save that observation for the hearing.

Great, will do.

Did you submit CEL v Chan?

If not then put in a skeleton argument attaching it (unless your hearing is tomorrow...you will find  skeleton arguments in CCJ threads such as the one by @Jack5656 (but beware his case was pre-Chan judgment so you ALSO need Chan).

I advised you to send Chan over 2 weeks ago.  Of course it applies to your case; it applies to every parking case and certainly a CCJ set aside application.

The hearing is on the 6th so I'll put together the skeleton argument this evening with CEL v CHAN. The only part I'm unclear on is whether I include points from the WS in the SA? What differentiates these, do they serve different roles in presenting a case? 

I've got several tabs open and reading through examples.

Coupon-mad

If your WS didn't attach the other transcripts about the 'after 4 months without proper service, a claim is dead' point, you need them too.

A skelly is a summary of legal arguments.   Don't sign it.  A skelly isn't a witness statement.

Also attach the relevant Code of Practice that the Claimant breached by failing to check your address in 2023.  It's no good them just saying they did a failed trace in 2022!

And of course CEL v Chan. The words about that case can be copied from the Template Defence.

DOMRIDER

If your WS didn't attach the other transcripts about the 'after 4 months without proper service, a claim is dead' point, you need them too.

A skelly is a summary of legal arguments.   Don't sign it.  A skelly isn't a witness statement.

Also attach the relevant Code of Practice that the Claimant breached by failing to check your address in 2023.  It's no good them just saying they did a failed trace in 2022!

And of course CEL v Chan. The words about that case can be copied from the Template Defence.

Thanks, Coupon-mad that's super helpful. I'm sure you repeat these points often so apologies. 

Attach in full, to support the 4 months dead argument:

Boxwood
Vinos v M&S
Croke
Piepenbrock

Add BPA CoP

Add words and transcript CEL v Chan 

I'll post my 'skelly' shortly. 

DOMRIDER

I've just referred to the BPA CoP (24.1c) and it states the following... 

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.

They not only failed to provide substantiating evidence for their 'UK Search' endeavours to bolster their assertion, but it's essential to highlight that the Letter before Claim was dispatched on September 28, 2022, predating the alleged 'soft search.' Surely, this constitutes a breach of their Code of Practice?

Coupon-mad

Yes and then they issued a claim six months later without any soft trace (costs 28 pence).

DOMRIDER

Skeleton Argument as follows... please note I've added a counterargument to a point on the claimant WS on paragraph 4. 

How should I submit this to the court in person or email?

Claim No.:  xxx
Between
XXX
(Claimant) 
- and -  
XXX
 (Defendant)
_________________
SKELETON ARGUMENT

 

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. The Defendant draws to the attention of the court that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

2.1 This recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) (SEE APPENDIX_1_CELVCHAN.pdf) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction 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 same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4.

3. 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). 

3.1 There are several authorities for this, including the judgment in Boxwood [2021] EWHC 947 (TCC)1 (SEE APPENDIX_2_BOXWOOD), 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.”

3.2 In Vinos v Marks & Spencer plc [2001] 3 All ER 784 2 (SEE APPENDIX_3_VINOS) 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.

3.3 In judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch) 3 (SEE APPENDIX_4_CROKE) 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." 

3.4 In Piepenbrock-v-Associated News Limited [2020] EWHC 1708 (QB) 4 (SEE APPENDIX_5_PIEPENBROCK) 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.”

4. The Defendant contends that the Claimant did not follow CPR 6.9(3) by not demonstrating proper diligence in using an address where the Defendant no longer lived. Despite receiving no response to their communications sent to XXX, the Claimant proceeded to file a claim at that location.

4.1 The Claimant states in paragraphs 13 and 14. of their witness statement the following:

Due to the period of time that had elapsed between the date of the PCN (31/12/2021) the Firm carried out a trace via UK Search on 4th October 2022. This was done to satisfy the requirements of CPR, in relation to an address for service in the event that a claim was to be issued that their solicitors carried out a search via ‘UK Search’ and that the Defendant was not found.

The Trace results were returned on 5th October 2022. The Defendant was not found by UK Search.

The Defendant would highlight the substantial time gap between the PCN's issuance on December 31, 2021, and the trace conducted on October 5, 2022. Furthermore, it's worth noting that the Letter before Claim was sent on September 28, 2022, prior to the purported 'soft search.' Notably, the Claimant has not provided corroborating evidence for their 'UK Search' efforts to support their statement.

5. 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.

5.1. 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.

5.2 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).

5.3 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 and then a Letter before Claim is a clear indicator that the keeper may not live there.

5.4 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 (APPENDIX_6_BPA_COP) 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.

6.  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.”

 

Coupon-mad

Haven't read it all yet but I don't think this makes sense so I'd remove it:

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. 

More important to get across that a DVLA address is not given out as a service address, which is why operators are required under the BPA CoP to check addresses before litigation which was March 2023. They did not. They breached the Code and CPRs by making no attempt to find the Defendant's current address.

I think 5 onwards should be higher.

And you don't need to quote Piepenbrock if you already did in your WS. You could just say 'see Defendant's Witness Statement paragraph x.

Oh and CEL v Chan was a CCJ set aside case.  Say so! The Judge will not know it.