CCJ Issued but 1 Month has Elapsed (Highview Parking & DBCLegal)

EngineerAmber

Hi All - Court Hearing Received for 30th April.

I also received an email from the claimant and here summary of how I read them. Let me know if you think differently as the full docs are included at the bottom.

- The Claimant won't show up to court
- The claimant accepts my set aside request
- The Claimant insists they followed the correct procedure (CPR 6.9) and should not be liable for my costs 

Assumed Next Steps - Please let me know if I understand correctly
- Turn up to court in business attire.
- Since the claimant accepts the set aside request, I don't expect a strong challenge from the judge. However, If challenged, I will push for CPR 13.2 even though the claimant claims they followed CPR 6.9, they did not follow the BPA CoP of making reasonable attempts to ascertain my address. Failing that push for CPR13.3.
- Push for the claimant to pay the N244 fee (any suggestions welcome!!)
- If the judge accepts the set aside, prepare a defense. More to follow later

Thanks again,
A.

-------------------

Letters received

CLAIMANT DRAFT ORDER

AND UPON the Claimant accepting that, although the Claim was served at the Defendant’s last known address

pursuant to CPR 6.9, the Defendant more likely than not did not receive the Claim Form, and therefore did not have

an opportunity to defend the Claim;

AND UPON the parties agreeing that, in view of the above, there is some other good reason for Judgment to be set

aside pursuant to CPR 13.3;

It is hereby ordered as follows:-

i. The Judgment dated xxxxxxx is set aside;

ii. The Claim be dismissed;

iii. No order as to costs.

CLAIMANT LETTER

We act for the Claimant and write in respect of the Defendant’s Application to set aside the

Judgment.

The Claimant will not be in attendance at the above listed hearing. No disrespect is intended

to the Court. This is simply a decision made to avoid incurring unnecessary and

disproportionate costs. We respectfully ask the Court to take into account the following

submissions.

PRELIMINARY POINTS

We highlight the following in respect of the Defendant’s application: -

1. Court proceedings were served at the Defendant’s last known address in accordance

with CPR 6.9 and accordingly, service of the Claim Form was effective;

2. As a result of the Defendant’s failure to respond to the Claim Form, Judgment in

default was granted and was sent to the same address that the Claim Form was sent

to;

3. Within their Application, the Defendant confirms that they were not in receipt of the

Claim Form as they were residing at a new address. It ought to be noted that the

Defendant accepts that they own the property in which the Claim Form was served

to, but they were residing at another property when the Claim Form was served. As

such, CPR 6.9 was complied with;

4. It is the Claimant’s position that the Claim Form was served to the Defendant’s last

known address pursuant to CPR 6.9. Despite this, the Claimant accepts that the

Defendant more likely than not did not receive the Claim Form, and therefore did not

have the opportunity to respond accordingly. As such, it is for this reason that the

Claimant does not oppose the Defendant’s Application, and believes there is some

other good reason to set the Judmgent aside pursuant to CPR 13.3;

5. The Claimant has decided to take an economical approach to the matter in

consideration of CPR 1.1, as well as assisting the Court in achieving its overriding

objective. As such, we would be grateful if the attached Draft Order could be placed

on the Court’s file in preparation for the Hearing listed on xxxxxxx;

6. The Defendant may wish to seek to recover the costs of making the Application to set

the Judgment aside. It is respectfully submitted that the Claimant has not acted

unreasonably. The Claim Form was served to the Defendant’s last known address

pursuant to CPR 6.9; as such, it is the Claimant’s position that the correct process

has been followed and had no reason to believe that the Defendant would not have

received the Claim Form;

7. Further to the above, pursuant to CPR 27.14, the Defendant is not entitled to costs

incurred where the matter has been allocated to the Small Claims Track. If the matter

had proceeded, it is reasonable to assume that the Claim would have been allocated

to the Small Claims Track, given the complexity and balance of the case.

Coupon-mad

This is the battle you will face next week and this will go one way or the other depending in what you say (no worries: your CCJ will be set aside):

"Push for the claimant to pay the N244 fee"

The Judge will likely have read their crap and will be all smiles, telling you "this won't take long" and that they want to rubber stamp the Claimant's Draft Order rather than yours.  

Judges are all too easily impressed by Claimants and legals.

Say "No Judge.  My Draft order should be used - they are liable for my wasted costs - and this is why".

Go back over the Code of Practice that the Claimants breached and have the argument clear to state that using an old DVLA address and making no effort to spend 28 pence for a Credit Ref Agency bulk address 'soft trace' to check the current address prior to litigation, IS A RED HERRING.

USING THE OLD DVLA VEHICLE ADDRESS UNCHECKED IS NOT OK FOR PARKING OPERATOR CLAIMS.

The CCJ could have been avoided and that's their fault not yours.

Even if you'd updated your address with the DVLA a parking operator could not ask the DVLA twice so (because of the delay in litigating) the DVLA data is always old data.  Always likely to be unreliable because people move more these days.

Hence why every Code of Practice (including the incoming new DLUHC one which sets out the mandatory need for a 'soft trace' clearly) says that an operator MUST check the address again which means doing a cheap bulk CRA address trace.

They were in breach of applicable codes.

They were in breach of the CPRs.

DVLA address is a red herring.

If they'd bothered to comply with the Code of Practice and pre-action CPRs, even the most basic steps (costing pennies!) would have found you in London as you rent a property there.  This address shows up in your credit report as the most recent data (take a copy of a free CRA report with you to prove that the London address was findable).

They must pay your costs.

EngineerAmber

Hearing Report summary: the claim was set aside but my costs were not reimbursed. 

The judge didn’t have a copy of my witness statement, fortunately I brought mine with me along with my evidence. He took 5 mins to read through the papers and also re read the claimants. 

He mentioned that my witness statement was well written (thanks coupon and the mse crew) but that the claimant also had a point pertaining to the CPR 27.14, the Defendant is not entitled to costs

incurred where the matter has been allocated to the Small Claims Track although he didn’t specifically state the CPR number. 

He said the claim would be dismissed (not struck out) and stood up to leave the room so I didn’t get chance to re argue any of the points which took me by surprise. I’m not sure if Highview can sent the claim afresh at my new address or if they will give up now, what are your thoughts?

Overall I’m really happy this will be removed from my credit file but kicking myself I wasn’t pushy in the court room. 

Thanks so much. Do I need to do anything else now?

———————————

Feedback and things I could have improved. 

In my witness statement I said I still own my old property but don’t live there. This was a pointless statement that didn’t add any value and only weakened my case. It’s not that I needed to lie, but the claimant would never have know anything about my old address so I should have left this out unless specifically asked.  

Also the judge referred to the fact that I no longer owned my previous car. I’m not sure how he knew this unless the claimant included a DVLA evidence. 

This could have been a good argument to make that given I don’t own the car anymore I would never have updated the logbook anyway when the CCJ was issued. I think this argument could have strengthened the case that since I don’t own the car that it is even more imperative the claimant checks the address is correct and the DVLA address is only a point in time. Given the number of years that go by before a CCJ in many of the examples on the forum I can imagine many people change their car by the time the CCJ is issued. Hope that helps. 

Coupon-mad

Yay -  CCJ set aside!  At last!

Shame about the costs.  I did say it would go one way or the other on costs.  You WERE entitled to them as I explained.  It was about showing that the C had acted unreasonably.  That opens the door to further costs.

Claim dismissed - what reason?  That's going further than just setting aside a CCJ. 

EngineerAmber

Thanks again. The dismissal part confused me. He explained the case would be set aside but not struck out...I assumed that meant Highview could re-issue the claim afresh to my new address if they wish. But when I "googled" dismissed I understand that meant it cannot be reopened. 

Perhaps I heard the judge incorrectly but his explanation did not seem to match the definition of 'dismissed'.

On further improvements for this channel, it would be great if you could add somewhere to the newbies thread or similar about trying not to fear the judge and make sure you challenge on the cost front. I'm a fairly confident person but the way the judge stood up and tried to leave meant I felt I had no option or right to challenge. It was right before lunch I guess he was hungry!!

Not knowing the legal system meant I was in unfamiliar surroundings. That said I'm still happy with the result and the £275 is effectively a sunk cost 6 months ago now.

Will the CCJ be removed from my credit file automatically?

Ill keep you posted if I get any subsequent letters or claims.

Coupon-mad

Yes the CCJ will be removed within weeks, in May. Wait & see what the written judgment says and then you will understand.  

What he did was, he used their own Draft Order so I think you'll see his judgment reads almost the same as their draft.

They achieved the damage limitation they were seeking.  You achieved the CCJ set aside you were seeking.  Judge whizzes off to lunch thinking he has been fair to both sides.

TBH when a Judge stands up like that you can't argue.  And I personally have never managed to get a judge to grant costs (except in a case later overturned).  I feel your pain.