VCS issued 3 CCJ’s against me through DCBL

bbdnw1106

RELEVANT CASE LAW

33. 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.

34. 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.”

35. 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." 

36. 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.

38. “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 [...]

39. 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. [...]

40. 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]. [...]

41. 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.”

42. 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.

43.  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):

44. “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).

45. 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.

46. 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

47. 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). 

48. 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.

49. 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 IPC code of practice and the CPRs about taking 'reasonable steps' (CPR 6.9) to check a Defendant's address.

50. 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.

51. 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).

52. I have responded to this matter as promptly as possible. I discovered two CCJ”s were lodged onto my credit file on the 19th July 2023. On the same day (19th July 2023) I contacted the County Court Business Centre to obtain relevant information relating to this default judgement. The following day on 20th July 2023 I have submitted my case in order to set-aside this judgment and fairly present my case

53. Considering the above I was unable to defend these claims. I believe that the Default judgments against me were 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

Statement of truth:

53. 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.

I ask the Court to kindly consider the reimbursement of the fee of £275 from the claimant should this request be successful".

Signed

B789

If you are not paying the £275 fee then you cannot ask for it to be "refunded". You will have to take out all references to that fee if you are receiving assistance with the court fees.

I've had a quick read through the WS and overall, it is very good and covers all the necessary points. However, I need to re-read through the first part as there are some references to your earlier CCJs that are not really relevant to this case, or at least should be referenced slightly differently. probably referenced to show how vexatious and unreasonable this claimant is.

Maybe one of the other more experienced regulars could suggest a better form of wording for the early paragraphs in the WS.

Apologies for the late response but I'm currently 6 time zones west of you and so don't really get a chance to read the responses until early to mid-afternoon your time.

B789

Dan140383 said:

@B789 I have just received an email from my previous estate agent with a copy of AST at the time. What am I looking for within this? 

Thanks in advance for your help with this ::) 

Update - Just read through and there is no mention of car parking as when I moved into the property, no permits were required. I had my own space allocated by apartment number. It was roughly 4 years into the tenancy that the management company started using VCS.

Whilst it is over 6 years since the CCJs were issued and based on what you have said about the lack of mention regarding car parking, it sounds as though VCS never had any right to issue you a parking charge as your lease had supremacy of contract and unless the landlord or MA had your lease altered, as it would have to do under the Landlord and Tenant Act 1987 S37, then the clams could have been easily defeated.

As I am not legally trained, I do not know what recourse you have after all this time to have those defective CCJs changed as they are now, in effect, expired. However, as you paid not only the original CCJ but also the extortionate fees added by the DRA and the illegally added fees in the actual claim, I wonder if there is anything else that could be done to recover that money.

There is such injustice in your story that is so infuriating to most of us and is a prime example of how the legal system is abused by these ex-clamper thugs and their robo-claim, gutter-dwelling solicitors. You really must get your MP involved and try and get the media interested.

bbdnw1106

Thank you so much. My priority at the moment is getting the the 2 x active CCJ”s that were issued 2018/19 set aside. If I am able to go back to the old one at some point and resolve that, then it would certainly be a bonus, however I had already accepted that loss a long time ago and now have to see it as an unfortunate lesson learned.

I will absolutely contact my local MP and bring this to their attention. With regards to Channel 5 not sure if I would have a case because as far as I am aware my case was never aired. However I think it may be worth speaking to a solicitor to ask the question.

Thank you so much everyone 

B789

Even if your case wasn't aired, that does not mean that they couldn't do so in the future. However, you are obviously on the ball now and your priorities are correct.

Get the N244 and the set aside order finished.

Coupon-mad

Dan140383 said:

Thank you so much. My priority at the moment is getting the the 2 x active CCJ”s that were issued 2018/19 set aside. If I am able to go back to the old one at some point and resolve that, then it would certainly be a bonus, however I had already accepted that loss a long time ago and now have to see it as an unfortunate lesson learned.

I will absolutely contact my local MP and bring this to their attention. With regards to Channel 5 not sure if I would have a case because as far as I am aware my case was never aired. However I think it may be worth speaking to a solicitor to ask the question.

Thank you so much everyone 

You need to ask Ch 5 by email, if your case was aired and to send you a copy of that programme excerpt.

You did really well to complain to Ch5 at the time because if they did later show it on TV at any time, your legal case against them for significant compensation is in my view, much stronger, due to your early complaint telling them how this had affected you.

I wonder if a 'claims for damages for distress' firm like Irwin Mitchell would take your case up on a 'no win no fee' arrangement?

Do I attach this as a word doc to my N244 form.

No, it must be a PDF of course (not Word) because it is a signed and 'complete' legal document, so you cannot send an editable version.

Also if I don’t have to pay the fee then should I leave the reimbursement part out?

You just write 'Help With Fees applied for' on the N244 and provide the HWF ref which you should apply for first.  Do not mention £275 in your WS if you aren't paying it.

I think you have to do a separate N244 and WS for each claim.

  Can I sign the N244 form online or does this need an actual signature?

Take a photo of your signature on a white piece of paper then re-size & crop it and put that into the document (above the date) before you save it as a PDF.

Like I said, you will have to do this TWICE, as you need two separate applications - but refer in each form to the OTHER one and ask for one hearing.

Your WS looks good but:

 (a). I couldn't see that you'd made the point that both DCB Group and VCS knew your last known address in 2017 (didn't they?).  And they failed to use it to file claims 2 and 3!

(b). cause of action estoppel applies as I think I said in my first reply to you. The second and third claims should be estopped because the Claimant failed to bring its entire cause of action in the first claim in 2017.  Even if some if the PCNs post-dated that first claim, it is an abuse of the court process to split those PCNs into two separate claims, doubling the costs exposure and causing two more CCJs.

To see how to argue (b) search the forum for Henderson defence.

bbdnw1106

@Coupon-mad - Thank you so  much.

I have just emailed Ch 5 and Brinkworth asking for a copy of the footage and whether this has ever aired. I will call Irwin Mitchell tomorrow. I have the details for my local MP in the area I live now and also the MP for the area I lived when this all happened and will be emailing them both tomorrow.

I lived in my previous property from January 2013 to March 2018. The original PCN was given early 2017 with the CCJ and bailiffs coming in May 2017 ( I received these letters but only read them after the judgement had been made after staying with my parents for over a month with my baby) the PCN letters prior to this I was told to ignore by the estate agent as the contract with VCS stopped and permits were no longer required.

The following two PCN” s were given when there contract was reinstated but again along with a number of other tenants we did not receive the permits straight away and were issued the PCN”s despite notes in the car. These were given on the 09th and 23rd Jan 2018 I moved out in March 2018 and CCJs were given November 2018 and Jan 2019. 

I will fill in two N244 forms with the same  HWF ref. Do I copy the exact same WS (except refs and dates?)

Do I need to put about the cause of action estoppel at the beginning of the WS in replacement of where I have waffled and take that out completely? The newbie forum is amazing but unfortunately I am not as well educated as most of the people posting and copied the majority of @hallie28 excellent WS

Many thanks

bbdnw1106

I have read and added the Henderson defence does this make sense?

I know to now fill in 2 separate forms but can I talk about all three on the one form to give an insight or do I strictly only mention the one ccj on each?

WITNESS STATEMENT OF DEFENDANT

1.       I am XXX  of XXX  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 21/11/2018, in default due to a defective service of Claim.

2.      I was not aware of the claims made against me until I checked my credit file for the purpose of building my credit on 19th July 2023. This is when I found out the Claimant had obtained two default CCJ”s against me. I was looking forward to checking and building my credit, having never done so before because of the CCJ from the same Claimant I already had on file and which had an extremely negative effect in my life thus far. I paid over £1,000 to DCBL in 2017 for the same situation. I did not receive these letters due to staying with family after a traumatic birth. I returned home and by this point the judgment had been served. DCBL bailiffs and camera crews were at my door the following day. I paid not to admit fault but because I was scared and humiliated. This has been extremely detrimental to me and has had a huge impact on my life, for a situation where I was not in the wrong and was paying for my parking space within my rent. 

I wish to have the opportunity to defend the original CCJ properly as per CPR 13.3.

3.      The Claimant served the further two claims to an old address. This is a breach of CPR 13.2 (a) as the claim form was never served to my current address.

4.      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 the PCN.

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

6.     The first PCN was given on 09th January 2018 and CCJ issued 21st November 2018 and the second PCN was given on 23rd January 2018 and CCJ raised 31st January 2019 which in both cases was 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.

7.      It is my strong belief that the Claimant is purposefully abusing the court process to their own ends by submitting multiple claims for the same circumstance PCN’s all of which they would have been aware of. I believe they do this to bombard any defendant with multiple claim forms to have to acknowledge service, submit defence statements, witness statements and prepare cases for, in the hope that defendants, who mostly have no knowledge of civil law, will give up or that claims will ‘slip through the net’.

3.5. Authorities to support the Defendant's position that the subsequent claims are all estopped are:

a. Arnold V National Westminster Bank PLC [1991] 3 ALL ER 41. The court noted that ‘....cause of action estoppel applies where a cause of action in a second action is identical to a cause of action in the first, the latter having been between the same parties, or their privies and involving the same subject matter’. This case involves the same Claimant and Defendant, The same vehicle, The same Car Park and the same manner in which the PCN was issued.

b. In Henderson v Henderson [1843]67 ER 313 The court noted the following…’when a matter becomes subject to litigation, i) the parties are required to advance their whole case, ii) the Court will not permit the same parties to reopen the same subject of litigation regarding matters which should have been advanced in the earlier litigation, but were not owing to negligence, inadvertence or error

8.      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.

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

Coupon-mad

Yes talk about all three.

Your two WS will be pretty much the same.

To assist the court, why not append a (single sheet, bullet point) Chronology, starting with your move-in date (VCS were not infesting the site) then approx when VCS started, first PCN dates, where you were living/ baby's birth, approx date VCS were removed, then reinstated, but no permits were supplied, then the approx first claim date, the HCEO bailiff visit, your complaint to Channel 5 date, then more PCN dates, then the date you moved out, then more claim dates & claim numbers.

I think that will help the Judge.

You should also be appending date evidence such as proof of addresses/moves.  Put these as numbered exhibits.

I just found this recent one that you might want to crib from too; this one is a CCJ set aside case mentioning Henderson v Henderson:
https://forums.moneysavingexpert.com/discussion/comment/80105306#Comment_80105306

You can plagiarise any previous one!

CPR 13.2 (mandatory set aside due to improper service) is FAR more important to push than CPR 13.3 which is merely your safety net.  Your fallback position.

bbdnw1106

@Coupon-mad - You are amazing! Thank you I will do all of the above.