VCS issued 3 CCJ’s against me through DCBL

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Sorry for posting so many copies of my WS. Hoping this could be the final one. When you have a free moment could you please have a look at my WS and Draft order and check if ok to send?

Case number

xxxxxxxxxxx

_________________________________

WITNESS STATEMENT OF X 

_________________________________

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 due to a defective service of Claim.

2.       This N244 is a mirror image of another one because I have been forced to apply twice, given there are two CCJs discovered relating to claim numbers xxxxxxxx and xxxxxxx.  The court is respectfully asked to consider the Overriding Objective and to exercise its case management powers to consolidate these two applications, to be heard at a single hearing.

3.      I was not aware of the claims made against me until I checked my credit file for the purpose of building my credit on 18th July 2023. This is when I found out the Claimant had obtained two further default CCJ”s against me. I was looking forward to checking and building my credit as this year meant that 6 years had passed from a previous CCJ I had received from the same Claimant whom I had already paid over £1,000 to for the same situation. 

4.         In light of the legal principles detailed below, the Defendant respectfully requests that the Court exercises its authority under CPR 3.4 2(b) to strike out one or both claims 2 and 3 (CLAIM NUMBERS XXXXXXXX and XXXXXXX) on the grounds of cause of action estoppel given that all three exaggerated claims involve the exact same facts, details, residential location, same vehicle and alleged contractual terms/breach and all cases involved the same parties, " POC as proof attached.

5.      The Claimant served the further two claims to an old address. The claim forms were never served to my current address.

6.      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.

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

8.     The first PCN and CCJ  ordered against me were in early 2017. The second was given on 09th January 2018 and CCJ issued 21st November 2018 and the third  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.

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

9.      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.

THE CLAIMANT FAILED TO SERVE THE CLAIM

10. I understand that the Claimant obtained a Default Judgment against me as the Defendant on 21/11/2018 and 31/01/2019. I am aware that the Claimant is Vehicle Control Services and that the assumed claim is in respect of an unpaid Parking Charge Notice for not having a permit on display in my car parking space. A permit both myself and many other tenants did not receive.

11. CPR 6.9 stipulates that an "Individual" should be served at their "Usual or last known residence."  I had updated my new address with both my car insurance company and DVLA 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 DVLA and 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).

12. The claim form was not served at my current address, thus I was not aware of the Default Judgment until I attempted to take control and build my credit on 18th July 2023. 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).

13. The address on the claim is XXX I moved from this address to another address at XXX in February 2018. In support of this, I have provided documentation showing my updated address on the assured tenancy agreement. I changed my car and also updated my address with the DVLA.

14. 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.

15. 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 over 12 months to establish a valid address. This has led to the claim being incorrectly served to an old address and an irregular judgment.

16.  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.

17. In early 2017, Four years into my tenancy the management company appointed VCS to manage the car park. Along with a number of other tenants I did not receive a parking permit and a note was put on the windscreen of my car to notify the attendant. I then received my first PCN, I spoke to my estate agent and management company who advised us to ignore and shortly after we were told that they were no longer using Vehicle Control Services. A year later they were reinstated with the exact same situation happening again and me now receiving a further two PCN”s.

18. The vehicle that the claim refers to was sold in 2018, 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. 

THE INTERNATIONAL PARKING COMMUNITY CODE WAS NOT FOLLOWED

19. International Parking Community (IPC) Code of Practice which requires a soft trace to be undertaken was not followed. The IPC Code of Practice 2019 - Version 7, November 2019, clause 22.1 states;

20. Operators must take reasonable steps to ensure that the motorist’s details are still correct if 12 months have passed from the Parking Event before issuing court proceedings”

DVLA ADDRESS DATA MAY NOT BE RELIABLE

21. 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.

22. 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.

23. 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').

24. A claim sent to an old DVLA registered keeper address with no soft trace checks (costing as little as 29 pence and offered free by debt collectors connected to the parking industry) fails to meet the IPC 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.

25. 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.

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

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

28. "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 of making applications to set aside default judgments."

29. The same sentiment was echoed by:

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

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

32. 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)

33. 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

34. “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

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RELEVANT CASE LAW

35. 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.

36. 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.”

37. 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." 

38. 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.

39. “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 [...]

40. 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. [...]

41. 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]. [...]

42. 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.”

43. 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.

44.  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):

45. “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).

46. 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.

47. 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

48. 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). 

49. 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.

50. 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.

51. 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.

52. 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).

53. I have responded to this matter as promptly as possible. I discovered two CCJ”s were lodged onto my credit file on the 18th July 2023.. The following day (19th July 2023) I contacted the County Court Centre to obtain relevant information relating to this default judgement. On 20th  July 2023 I have submitted my case in order to set-aside this judgment and fairly present my case

54. Considering the above I was unable to defend these claims. I believe that the judgments against me were issued incorrectly and thus should be set aside.

Statement of truth:

55. 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: _______________________________

Dated: ________________________________

EXHIBIT 1 - Proof of address where PCN”a were given

EXHIBIT 2 - Proof of new address and dates 

EXHIBIT 3 - Email from DVLA confirming updated details and new licence.

Particulars of Claim and Chronology also attached 

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CLAIM No: XXX

BETWEEN:

Vehicle Control Services (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 [date];

AND UPON the court taking note that the Claimant was not entitled to a judgment, having failed to serve on Defendant's usual residential address;

IT IS ORDERED:

1. Both CCJs be set aside due to improper service (ref CPR 13.2)

2. That one or both similar fact claims be struck out for abuse of the court process under the doctrine of cause of action estoppel.

Signed: ________________________________

Coupon-mad

Add the email from the CCBC as an exhibit and refer to it in the section about Cause of Action Estoppel which I think is lower down in your WS?  Needs a sub heading 'CAUSE OF ACTION ESTOPPEL' to assist the Judge to see all your arguments quickly.

I think the CCBC email with the two duplicate POC is a great visual aid to demonstrate why claims 2 and 3 should have been one, and that this unreasonable conduct by the Claimant has doubled the costs exposure and wasted court time.

All exhibits to be numbered with your initials, e.g.  DH1, DH2, etc. and refer to them as that, in your WS.

Remove para 8 and instead refer the Judge to read the attached Chronology (Exhibit Dxx) to understand the timeline of the three claims, two of which are the subject of these two applications.

And remove this (below) from at least one of your WS because it seems to shoot you in the foot.  They started proceedings within the 12 months in at least one out of the 2 cases didn't they?

THE INTERNATIONAL PARKING COMMUNITY CODE WAS NOT FOLLOWED

19. International Parking Community (IPC) Code of Practice which requires a soft trace to be undertaken was not followed. The IPC Code of Practice 2019 - Version 7, November 2019, clause 22.1 states;

20. Operators must take reasonable steps to ensure that the motorist’s details are still correct if 12 months have passed from the Parking Event before issuing court proceedings”

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Add the email from the CCBC as an exhibit and refer to it in the section about Cause of Action Estoppel which I think is lower down in your WS?  Needs a sub heading 'CAUSE OF ACTION ESTOPPEL' to assist the Judge to see all your arguments quickly.

@Coupon-mad like this?

CAUSE OF ACTION ESTOPPEL

4.         In light of the legal principles detailed below, the Defendant respectfully requests that the Court exercises its authority under CPR 3.4 2(b) to strike out one or both claims 2 and 3 (CLAIM NUMBERS XXXXXXXX and XXXXXXX) on the grounds of cause of action estoppel given that all three exaggerated claims involve the exact same facts, details, residential location, same vehicle and alleged contractual terms/breach and all cases involved the same parties, " Please refer to Exhibit DW2

I have removed all references re the 12 months because even the first one was just within that (sorry this was something I had copied and not triple checked properly)

Thank you all so much I am beyond grateful for everyone’s help and support.

Special thanks to @Coupon-mad I am so fortunate that you saw my post and helped me beyond measure.

Can I ask now that I am bringing this to the attention of the court / VCS and DCBL can they send the letters now to my current address and potentially bailiffs again?

And one last thing please, on the N244 form where it asks what order and why, should I put the following on each form and should I cross reference? 

That the default judgment dated XXXX outlined overleaf be set aside.

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

Coupon-mad

The Henderson v Henderson wording from other threads should immediately follow that paragraph otherwise the sub-heading isn't supported by case law.

You won't get bailiffs for claims under £600.  No worries, you are not opening a can of worms.

That looks fine for your N244 x 2 but remove this because their actions were not a 'breach of CPR 13' because, like I said, that Rule isn't about Service of Claim Forms so they can't have breached CPR 13.2(a):

"This is a breach of CPR 13.2 (a) as the claim form was never served to my current address."

Instead add:

and that this application be consolidated with the other (near duplicate) one that the Defendant was forced to make separately re claim xxxxxxx and one hearing for 90 minutes be allocated to these matters.

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Thank you so much @Coupon-mad

Is this better below re estoppel? And just to confirm all attachments including Exhibits are to be in PDF format except the Draft Order that is a word doc? Is there a preference to Font and size? And do all docs require a signature? 

Many thanks

CAUSE OF ACTION ESTOPPEL

4.         In light of the legal principles detailed below, the Defendant respectfully requests that the Court exercises its authority under CPR 3.4 2(b) to strike out one or both claims 2 and 3 (CLAIM NUMBERS XXXX and XXXX) on the grounds of cause of action estoppel given that all three exaggerated claims involve the exact same facts, details, residential location, same vehicle and alleged contractual terms/breach and all cases involved the same parties, " Please refer to Exhibit DW2

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

Coupon-mad

Yes that's perfect and all correct.

The only things that need a signature are the WS x 2, the N244s x 2 and also your N180 that I advised you to download, in order to cross out holiday or birthday / special weeks where you really don't want a hearing in the next 9 months.

1505grandad

"CLAIM No: XXX

BETWEEN:

Vehicle Control Services (Claimant)"

Don't forget to add "Ltd" to the claimants name

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Ok so I have triple checked everything sent to my parents who said they all came through fine. Just one thing ….Is there a forum to search re the best email to send this to and do I write anything in the bulk of the email/ address a certain person?

Again thanks to each and every one of you for all your help, advice, knowledge and overall encouragement over the past few days I know I still have a long way to go but I already feel like I have took back some control. 

Will be emailing MP”s tomorrow and will update you with everything.

Many thanks