CCJ set aside application PCM / Gladstones

Tudor_Rose

Hi all, 

Over the past few days I have been absorbing everything I can in order to get a recently discovered CCJ set aside. 

I believe I am hopefully(!) nearly ready to send although I have a couple of questions and would really appreciate anyone glancing through my WS and DO to check I haven't omitted anything! 

First question, the PCN was issued in June 2021 when I had just divorced and changed my name via deed. several weeks after the PCN I sold the car. Therefore not only was the claim served at my old address in 2023, it was in my married name. 
I have referenced the divorce and name change in my WS to explain the different names on the exhibits. Which name should I use for the N244 application? As the CCJ is in my married name. (But obviously had no trouble finding it's way to my credit file and decimating it!!) 

Secondly, the PoC I've received from CNBC are the boilerplate type:

THE DRIVER OF THE VEHICLE WITH REGISTRATION  xxxxxx (THE 'VEHICLE') PARKED IN BREACH OF  THE TERMS OF PARKING STIPULATED ON THE       SIGNAGE (THE 'CONTRACT') AT GREAT WEST       QUARTER, ON 10/06/2021  THUS INCURRING THE   PARKING CHARGE (THE 'PCN'). THE PCN WAS NOT  PAID WITHIN 28 DAYS OF ISSUE. THE CLAIMANT   CLAIMS THE UNPAID PCN FROM THE DEFENDANT AS  THE DRIVER/KEEPER OF THE VEHICLE. DESPITE    DEMANDS BEING MADE, THE DEFENDANT HAS FAILED TO SETTLE THEIR OUTSTANDING LIABILITY. THE   CLAIMANT CLAIMS                              £100 FOR THE PCN, £70.00 CONTRACTUAL COSTS   PURSUANT TO THE CONTRACT AND PCN TERMS AND   CONDITIONS, TOGETHER WITH STATUTORY INTEREST OF £27.33 PURSUANT TO S69 OF THE COUNTY      COURTS ACT 1984 AT 10.25% PER ANNUM,         CONTINUING AT £0.05 PER DAY.       

In addition to the paragraph in my WS referencing CEL v Chan do I need to prepare a draft defence at this stage to further point out that the PoC do not comply with CPR 16.4 and do not set out conduct which amounted to the breach? I am aware that I need to at least flag that the claim is has a real prospect of success and why, is this paragraph sufficient to do this? 

I intend to do a SAR to PCM Ltd once I've got this application in so that I can defend the claim fully and prepare a skeleton argument for the hearing. 

WS and DO below, really appreciate any answers / help / comments. 
Thank you!

Tudor_Rose

Witness Statement of the Defendant

1.    I am XXX and I am the defendant in this matter.

 

2.    This is my supporting statement to my application dated 18th October 2023 requesting to:

 

2.1. Set aside the default judgment for claimant dated 10th March 2023 on the grounds that the defendant has not been validly served as the Claim Form was sent to the Defendants former address.

 

2.2. Strike out the claim, as per CEL v Chan (appeal) Exhibit 1.

 

2.3. Order for the Claimant to pay the Defendant the N244 fee of £275 (and the Defendant's costs for attending a hearing - £95 for time in preparation; 5 hours as litigant in person at a rate of £19 per hour), in the event that the Allocating Judge does not make an immediate Order granting (a) and (b) without a hearing, due to the abusive POC and the Claimant's representatives' wholly unreasonable conduct, of negligence to carry out simple and proper checks to establish the correct address for service before filing the claim.

 

3.    Default Judgement

 

3.1. I was the registered keeper of the vehicle at the time of the alleged offence.

 

3.2. I understand that the Claimant obtained a Default Judgement against me, the Defendant, on 10th March 2023. I am aware that the Claimant is Parking Control Management Ltd, and that the assumed claim is in respect of unpaid Parking Charge Notice (PCN) from the 10th June 2021 at Great West quarter. I defend this charge for the reasons outlined in paragraph 3.16.

 

3.3. The claim form was not served at my current address and I thus was not aware of the Default Judgement until 13th October 2023 following a decline in my credit score and a note on my banking app regarding a court judgement; as found in Exhibit 2.

 

3.4. The address on the claim is XXX . I moved to my current address at XXX  on the 21st December 2021. In support of this I can provide a letter sent to my current address from Thames Water confirming the end date of supply and service at my previous address alongside a credit card statement for December 2021 to my current address; Exhibit 3 and 4.

 

3.5. In addition to the above, it should be highlighted that the integrity and law-abiding intention of the Defendant should be taken into consideration on the basis that;

 

3.5.1.   I discovered a CCJ was lodged onto my credit file on the 13th October 2023.

3.5.2.   On the 13th and 14th October, I contact credit referencing agencies to investigate the court judgement request a statutory credit report in order to obtain the case number; Exhibit 5.

3.5.3.   On the 17th October I contacted the County Court Business Centre to obtain relevant information relating to this default judgement; Exhibit 6.

3.5.4.   On 18th October 2023 I have wilfully submitted my case in order to set-aside this judgement and fairly present my case.

 

3.6. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held my correct contact details at the time of the claim. I was therefore denied the opportunity to defend the claim.

 

3.7. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they had failed to show due diligence in using an address that I no longer reside and had not confirmed receipt of any prior correspondence. The claimant did not take reasonable steps to ascertain the address of my current residence despite 20 months passing from the issue of proceedings and the date of the claim. This has led to the claim being incorrectly served to an old address and an irregular judgement.

 

3.8. 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.

 

3.9. The claimant is obliged to carry out a soft search for a current address if they have had no response to any previous correspondence to the address on the V5C. I was ‘’there to be found’’ for the sake of a soft search via Experian trace or similar very inexpensive (reportedly 29p) and immediate credit reference agency address check. I would then have been notified of this claim and could have taken action to defend and prevent the CCJ.

 

 

3.10.            The Claimants blatant failure to carry out proper checks to establish the correct address for service before filing a claim not only breaches the CPRs but also the pre-action protocol for debt claims and the trade association’s Code of Practice to which the Claimant is a member of.

 

3.11.            Parking Control Management Ltd is a member of the Trade Association International Parking Community (IPC). The claimant has breached IPC’s CoP which requires addresses to be re-checked by a trace before submitting a claim form. Their code of practice states “22.1 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". Exhibit 7. Therefore, the Claimant acted wholly unreasonably by negligently or deliberately disregarding all rules and caused the claim to be improperly served.

 

3.12.            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.

 

3.12.1.                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.

 

3.13.            On the 29th June 2021 the car was sold and the DVLA was informed of the new keeper.

 

3.14.            On the 26 May 2021 a decree absolute was made and the defendant’s divorce certified. My legal name was changed by change of name deed from XXX  to XXX . Exhibit 8.

 

3.15.            Given that more than 4 months has 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.  The Defendant has very limited details of the claim provided by the Civil National Business Centre, therefore, if the Claimant believes there is a cause of action then the correct procedure would be to file a claim afresh and to the right address, after furnishing the Defendant with the information required under the pre-action protocol for debt claims, issued this time to the correct address for service for this Defendant, which is XXX .

 

3.16.            A recent persuasive appeal judgment in another private parking case: Civil Enforcement Limited v Chan (Ref. E7GM9W44).  This case confirms that where the POC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16, the claim should be struck out, the CCJ set aside and costs awarded to the Applicant/Defendant.  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 and award my costs in full, as happened in Chan appeal case (which also started with a N244 CCJ set aside application which was initially wrongly refused by the first learned Judge)

 

3.17.            The Claimant, or their legal representatives, has added an additional sum of £70 to the £100 parking charge notice, for which “contractual costs” is given as explanation. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold.

 

 

3.18.             Whatever the allegation turns out to be, it must be common ground that the terms have been complied with or substantially complied with, and the Claimant will concede that no financial loss has arisen.  The charge imposed, in all the circumstances is a penalty (not saved by the ParkingEye v Beavis case, which is fully distinguished).  In addition to the fact that the sum claimed under purported 'contract' is disproportionately exaggerated, additionally the interest is inflated in two ways:

 

3.18.1.                Interest appears to be miscalculated on the whole enhanced sum from day one as if £170 was 'overdue' on the day of parking;

 

3.18.2.                Gladstones have applied the wrong interest rate of 10.25% which they appear to have made up.  The highest rate allowed in civil claims (only at the discretion of courts) is 8%. I have discovered from research that this legal representative roboclaim firm (connected to the IPC trade body) always adds 10.25% interest. Gladstones indisputably issue tens of thousands of inflated parking claims every year, all of which have the wrong interest rate (a deplorable 10.25%) and the unconscionably enhanced £60 or £70 (per PCN) which can add hundreds to some claims.  Given that the MoJ's quarterly statistics show that 90% of small claims go to default CCJs, this is clearly an abuse, and it appears to be for the profit of Gladstones and nothing to do with the Claimant's alleged £100 PCN.  I hope the Judge addresses this in the final judgment, at the very least to warn or sanction Gladstones as the court sees fit.

 

3.19.            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.

 DRAFT ORDER

IN THE COUNTY COURT AT

PARKING CONTROL MANAGEMENT LIMITED (Claimant)

And

XXX (Defendant)

District Judge

UPON reading the Defendant's application dated 18 October 2023 and the annexed witness statement of XXX dated 18 October 2023

IT IS ORDERED that:

1.    The judgment for claimant dated 10 March 2023 is set aside on the grounds that the defendant has not been validly served as the Claim Form was sent to the Defendants former address.

 

2.    The claimant to pay the Defendant's cost of this application £275 in addition £95 for time in preparation (5 hours as litigant in person at a rate of £19 per hour).

 

3.    Order for original claim to be dismissed.

Coupon-mad

That's very good research.  Nicely done except for the word 'wilfully' which ONE poster write (completely the wrong word) and everyone keeps copying!

You don't need a defence yet.  

You do need to attach all exhibits.

Do the application in the name you are now known by.

UncleThomasCobley

You've certainly done your research. I would advise you to renumber all your paragraphs sequentially without the sub-numbering. Just use integers.

The CEL v Chan argument must feature prominently as this is exactly the same situation in that it was at set aside hearing where the claim was struck out as well as the CCJ being cancelled.

Whilst the CCJ is in your married name and you have explained the circumstances of your name change, you must file your N244 in your current legal name. You may need to evidence that with your N244 application.

1505grandad

Make sure you state the correct name of the claimant if this?:-

"Parking Control Management (UK) Ltd

"Judgment"  -  no middle "e" in this context  -  Google CCJ

Tudor_Rose

Thank you so much @Coupon-mad, @UncleThomasCobley and @1505grandad super helpful. I amended it, used my current name and moved the Chan paragraph to the top. I'll put the final WS draft below for anyone in similar circumstances. 

I have sent to the Court and served Gladesones. In case it's useful for anyone else I got an acknowledgement from enquiries@gladstonessolicitors.co.uk. 

I realise it's probably a 'how long is a piece of string' question, but any guess on how long approximately it takes from this point to reach hearing? And then, am I right to expect it to be at least several months for CRA to report the CCJ as set aside? 

Finally, am I wise to do a SAR request to PCM now in anticipation of needing to write a skeleton argument? Presumably I should request data from both names to uncover if they actually did any checks before claim. 

Thanks again I'll be sure to keep you updated. 

Tudor_Rose

Claim Number: XXXXX

 

Witness Statement of the Defendant

1.    I am XXXXX, the defendant in this matter.

 

2.    This is my supporting statement to my application dated 18 October 2023 requesting to:

 

a.    Set aside the default judgment for claimant dated 10 March 2023 on the grounds that the defendant has not been validly served as the Claim Form was sent to my former address.

 

b.    Strike out the claim, as per CEL v Chan (appeal) Exhibit 1.

 

c.    Order for the Claimant to pay the Defendant the N244 fee of £275 (and the Defendant's costs for attending a hearing - £95 for time in preparation; 5 hours as litigant in person at a rate of £19 per hour, in the event that the Allocating Judge does not make an immediate Order granting (a) and (b) without a hearing, due to the abusive Particulars of Claim and the Claimant's representatives' wholly unreasonable conduct, of negligence to carry out simple and proper checks to establish the correct address for service before filing the claim).

 

Default Judgment

 

3.    I understand that the Claimant obtained a Default Judgment against me, the Defendant, on 10 March 2023. I am aware that the Claimant is Parking Control Management (UK) Ltd, and that the assumed claim is in respect of unpaid Parking Charge Notice (PCN) from the 10 June 2021 at Great West Quarter. I contest this charge for the reasons outlined below in paragraph 4.

 

Defence – Particulars of Claim (PoC)

4.    The claimant’s PoC (Exhibit 2) is a boilerplate template which does not outline what conduct led to the driver breaching the terms of parking.

A recent persuasive appeal judgment in another private parking case: Civil Enforcement Limited v Chan (Ref. E7GM9W44).  This case confirms that where the PoC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16, the claim should be struck out, the CCJ set aside and costs awarded to the Applicant/Defendant.  On the 15 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” (Exhibit 1, Para 11). This matter is identical to the case of Civil Enforcement Limited v Chan and in light of the Judgment I request the Allocating Judge to strike out the claim using its powers pursuant to CPR 3.4 and award my costs in full, as happened in the aforementioned Chan appeal case (which, like this matter, also started with a N244 CCJ set aside application which was initially wrongly refused by the first learned Judge).

 

Sequence of events

 

5.    I was the registered keeper of the vehicle at the time of the alleged offence on the 10 June 2021. The car was sold on the 29 June 2021 and the DVLA was informed of the new keeper.

 

6.    The claim form was not served at my current address, and I therefore was not aware of the Default Judgment until 13th October 2023 when checking my credit score and seeing a textbox on my banking app regarding a court judgment as found in Exhibit 3.

 

7.    The address on the claim is XXX. I moved to my current address at XXX on the 21 December 2021. In support of this I can provide a letter sent to my current address from Thames Water confirming the end date of supply and service at my previous address alongside a credit card statement for December 2021 to my current address; Exhibit 4 and 5.

 

8.    On the 26 May 2021 a decree absolute was issued by the Family Court certifying my divorce. My legal name was changed by a Change of Name Deed from XXX to XXX; Exhibit 6. I include this in explanation for the variance between the defendant’s name on the claim form and my name on the documents submitted today. In addition, you will see this updated name in the supporting documents in exhibit 4 and 5.

 

9.    I would ask at my integrity and law-abiding intention be taken into consideration on the basis that;

 

a.    On the 13 October I discovered a CCJ was reported onto my credit file.

b.    On the 13 and 14 October, I contacted credit referencing agencies to investigate the court judgment, requesting a statutory credit report in order to obtain the case number; Exhibit 7.

c.    On the 17 October I contacted the County Court Business Centre to obtain the relevant information relating to this default judgment; Exhibit 2 and 8.

d.    On 18 October 2023 I have submitted my case in order to set-aside this judgment and fairly present my case in an urgent and prompt manner.

 

10. I believe the Claimant has behaved unreasonably in pursuing a claim against me without ensuring they held my correct contact details at the time of the claim. I was therefore denied the opportunity to defend the claim.

 

11. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3) where they failed to show due diligence in using an address that I no longer reside and had not confirmed receipt of any prior correspondence. The claimant did not take reasonable steps to ascertain the address of my current residence despite 20 months passing from the alleged offence and the date of the claim. This has led to the claim being incorrectly served to an old address and an irregular judgment.

 

12. 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.

 

13. The claimant is obliged to carry out a soft search for a current address if they have not had any response to previous correspondence to the address on the V5C. I was “there to be found” for the sake of a soft search via an Experian trace or similar immediate and very inexpensive (reportedly 29p) credit reference agency address check. Had the claimant carried out their obligation I would have been notified of this claim and could have taken action to prevent the CCJ.

 

14. The Claimants blatant failure to carry out a basic check to establish the correct address for service before filing a claim not only breaches the Court Procedure Rules but also the pre-action protocol for debt claims and the trade association’s Code of Practice to which the Claimant is a member of.

 

15. Parking Control Management (UK) Ltd is a member of the Trade Association International Parking Community (IPC). The claimant has breached IPC’s CoP which requires addresses to be re-checked by a trace before submitting a claim form. Their code of practice states “22.1 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". Exhibit 9. Therefore, the Claimant acted wholly unreasonably by negligently or deliberately disregarding all rules causing the claim to be improperly served.

 

16. 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. It is well known that the data can be inaccurate.

 

17. The system is called 'KADOE' (Keeper On Date of Event) because it is a brief 'snapshot in time' to enable a parking operators to send a Notice. The information provided by the DVLA is only valid for that date. Operators are only allowed to ask the DVLA once, hence the parking industry’s code of practice require reasonable steps to be taken to check the address is correct and 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.

 

18. Given that more than 8 months have passed (i.e., more than 4 months) from issuance of proceedings and the service of the claim was defective (i.e., it was never served) I submit that this particular claim is dead and that the period for service cannot be extended by this application process. 

 

19. I have very limited details of the claim provided by the Civil National Business Centre, therefore, if the Claimant believes there is a cause of action then the correct procedure would be to file a claim afresh and to the right address, after providing me with the information required under the pre-action protocol for debt claims, issued this time to me at the correct address for service, which is XXX.

 

20. The Claimant has added an additional sum of £70.00 to the £100.00 parking charge notice, for which “contractual costs” is given as explanation. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold.

 

21. Whatever the allegation turns out to be, it must be common ground that the terms have been complied with or substantially complied with, and the Claimant will concede that no financial loss has arisen.  The charge imposed, in all the circumstances is a penalty (not saved by the ParkingEye v Beavis case, which is fully distinguished).  In addition to the fact that the sum claimed under purported 'contract' is disproportionately exaggerated, additionally the interest is inflated in two ways:

 

a.    Interest appears to be miscalculated on the whole enhanced sum from day one as if £170.00 was 'overdue' on the day of parking.

 

b.    The claimant has applied the wrong interest rate of 10.25% which they appear to have made up.  The highest rate allowed in civil claims (only at the discretion of courts) is 8%.

 

c.    I have discovered from research that the claimant’s legal representative, Gladstone Solicitors, is a roboclaim firm who indiscriminately adds 10.25% interest. Gladstone Solicitors indisputably issue tens of thousands of inflated parking claims every year, all of which have the wrong interest rate (a deplorable 10.25%) and the unconscionably enhanced £60 or £70 (per PCN) which can add hundreds to some claims.  Given that the MoJ's quarterly statistics show that 90% of small claims go to default CCJs, this is clearly an abuse of judicial time and resources to gain eye watering profits.  I hope the Allocating Judge addresses this in their final judgment, at the very least to warn or sanction Gladstone Solicitors from applying extortionate fees and disallowed interest rates to their conveyor belt of claims, as they see fit.

 

22. 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:

 

Defendant’s Name: XXX

 

Date Signed: 18 October 2023

Draft Order:

IN BRIGHTON COUNTY COURT                                           Claim Number: XXX

 

 

BETWEEN                                                      

 

PARKING CONTROL MANAGEMENT (UK) LIMITED

 

Claimant

And

 

XXXXXX

Defendant

 

DRAFT ORDER

 

UPON reading the Defendant's application dated 18 October 2023 and the annexed witness statement of XXXXX dated 18 October 2023

 

IT IS ORDERED that:

1.    The judgment for claimant dated 10 March 2023 is set aside on the grounds that the defendant has not been validly served as the Claim Form was sent to the Defendants former address.

 

2.    The claimant to pay the Defendant's cost of this application £275 in addition £95 for time in preparation (5 hours as litigant in person at a rate of £19 per hour).

 

3.    Order for original claim to be dismissed.

Coupon-mad

Don't do a SAR . It kind of ruins your argument that the POC are not sufficient, if you receive a full SAR reply before your hearing, which will likely be in early 2024.

Tudor_Rose

Hello! 
I've received Notice of Hearing for my application to set aside next Monday - 25th Jan. 

I have also today been served the Witness Statement from the claimant. Good news, they are not attending. I am concerned by some of the points they have made in their WS and wondered whether anyone could advise me ! 

//

7. The case management system operated by my Firm confirms that acting in accordance with the

clients instructions a ‘Letter Before Claim.’ was sent to the Defendant at XXX;
this being the address supplied by the DVLA as being

the address of the Defendant named herein at the time of the contravention.

8. When no response was received to that correspondence my Firm carried out a trace via UK

Search, in order to establish whether an alternative address could be ascertained, in order to satisfy

the requirements for service of a Claim Form as prescribed by 6.9 CPR.

9. The Trace results did reveal a possible alternative address for the Defendant, namely XXX (note: this address was my address prior to the DVLA address). My Firm therefore sent out a letter to the

Defendant at that address inviting the Defendant to contact them and confirm that this address was

now their current address. As the Defendant failed to make contact with my Firm, that address

could not be confirmed for GDPR purposes.

10. My Firm therefore submitted a claim to the County Court Business Centre on the 7th February

2023. The address provided for service of the Claim Form was XXX, this being the usual or last known residence of the Defendant for the purposes of CPR 6.9.

11. The Claimant therefore submits that the Claim Form can be deemed to be properly served.
12. 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.

13. In respect of the first limb of the above criteria, in view of the aforementioned paragraphs, the date

the Claim was issued and as 7 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.

14. Notwithstanding the previous, in considering the second limb of the above criteria the Claimant

invites the Honourable to court to consider the following.

...
37. Without prejudice to the previous, in the event that the court is minded to grant the Defendants

application then upon the Judgment being set aside the Claimant would invite the court to give

standard directions regarding the progress of the Claim moving forward as it is the Claimants

intention to continue with the claim.

38. Should the court elect to proceed as described above, the Claimant respectfully requests the

following Order be made;

a. The judgment entered on the 10th March 2023 be and is hereby set aside;

b. The Witness Statement of Beata Uszta stand as the Particulars of Claim and service of the

Claim be dispensed with;

c. The Defendant must file and serve a Defence to the Claim within 28 days of service of this

Order in default of which, the Claimant be at liberty to re-enter Judgment;

d. Upon receipt of the above, the Claim be allocated to the Small Claims Track with

standards directions, to be heard on the first available date within 56 days; and

e. There be no Order as to Costs.

// 

Given the above does this change whether the claim was served? I cannot understand why 14 months after moving why the trace would not come up with my current address given the amount of records / bank accounts / utilities / phone account on my file. Is it appropriate to argue that, as they have not said my old address was the only one to be revealed in the trace, and have not included any evidence of the trace that it was either not done at the time or that they ignored my current address? 

I'm concerned that given their WS I will not get my costs for N244 back. Is that likely? 

The hearing letter does not mention providing a skeleton argument. Do I need to write and serve one? Is this my opportunity to respond to their WS?

I believe I need to push for the claim being dead (due to 4 months+) so that the claim doesn't proceed down small claims track. Is there anything else I need to argue at the Hearing to prevent that?


I haven't had a proper chance to read through the forum on prep for the hearing. From what I I've briefly gathered I need to:
- Know my witness statement and reasons for set aside (case law) thoroughly inside out
- Be early 
- Call the judge, judge!! 

If it would be helpful I can provide the full WS from claimant (I just didn't want to make this post too long). 

Thanks in advance for any help / advice, much appreciated. 

Coupon-mad

Nothing too worrying there but you are going to have to steer the Judge AWAY from their Draft Order and back to your one and why the claim should be struck out and you should be awarded your costs, ref the similar CCJ set aside case and the specific legal matter heard on appeal:  CEL v Chan.

I cannot understand why 14 months after moving why the trace would not come up with my current address given the amount of records / bank accounts / utilities / phone account on my file. Is it appropriate to argue that, as they have not said my old address was the only one to be revealed in the trace, and have not included any evidence of the trace that it was either not done at the time or that they ignored my current address? 

YES.  You spotted what I was going to say!

"I'm concerned that given their WS I will not get my costs for N244 back. Is that likely?"

It is possible. There is a danger of that, so address that head on. Depends on what you say and what the Judge thinks.  So use your chance to speak to object to their attempts to wriggle out of this scot free.

"The hearing letter does not mention providing a skeleton argument. Do I need to write and serve one? Is this my opportunity to respond to their WS?"

No and no.  You don't need one.  We assume you already attached the CEL v Chan transcript?


"I believe I need to push for the claim being dead (due to 4 months+) so that the claim doesn't proceed down small claims track. Is there anything else I need to argue at the Hearing to prevent that?"

CEL v Chan is a better argument. You should be familiar with that recent appeal case and say in view of that persuasive appeal, there's no reason to let the erring Claimant continue with a defective claim, much less escape liability for the £275 set aside fee when they:

- didn't properly plead the case (see Chan)

- didn't properly serve the claim

- have shown no evidence of this 'soft trace' that they SAY was returned, and have oddly left it open to interpretation how many addresses actually came up (which you say, would certainly have included the newest address due to finance records)

- have not even provided a WS signed by the Claimants.  The WS they want to supplant to paper over the cracks of the inadequately pleaded claim is signed by a Payroll Assistant at Gladstones Solicitors who has not even bothered to appear at this hearing...

(The 4 months dead argument is less likely to succeed in our experience. Very much secondary).

Le_Kirk

Tudor_Rose said:

I've received Notice of Hearing for my application to set aside next Monday - 25th Jan. 

Monday is 29th January or 25th is this Thursday!  Don't get confused and miss the hearing!