Help needed ASAP - CCJ set aside application

UncleThomasCobley

Unfortunately, CEL v Chan won't win this one for you as they have stated the terms you are alleged to have breached. You can still use the argument about the PoC being inadequate but your best bet is relying on the keeper cannot be liable, only the driver. Have you admitted at any stage as to being the driver?

The PoC only mention and/or driver which means they do not know. You also have the rest of the arguments for this as it is on airport land covered by bylaws and stopping to turn around is not an offence.

ribenacat346

UncleThomasCobley said:

Unfortunately, CEL v Chan won't win this one for you as they have stated the terms you are alleged to have breached. You can still use the argument about the PoC being inadequate but your best bet is relying on the keeper cannot be liable, only the driver. Have you admitted at any stage as to being the driver?

The PoC only mention and/or driver which means they do not know. You also have the rest of the arguments for this as it is on airport land covered by bylaws and stopping to turn around is not an offence.

Okay, I wondered this - thank you for confirming. 
I haven't admitted to being the driver at any stage - I've had no contact with VCS and my first contact with ELMS Legal is the above. 
Sorry to be a pest, but what do you mean by the rest of the arguments? Are these other cases such as XX vs XX? (I've seen these elsewhere on the forum but don't have the names to hand at the min - I will do some searching now)

From reading the CEL v Chan I gathered the sole argument of 13.2/13.3 isn't enough to get the CCJ set aside and I need a further argument, is that correct?

UncleThomasCobley

CPR 13.2 applies as the claim was incorrectly served to an address that the defendant no longer resided at. Whilst it s your responsibility to inform the claimant of an address change in case of service of documents, they also had a responsibility to check that the address they were using was current.

Without reading back there the thread, are you saying that the first contact you had with anyone was with ELMS after the CCJ had been issued? If that is the case, CPR 13.2 will be what gets this set aside.

ribenacat346

UncleThomasCobley said:

CPR 13.2 applies as the claim was incorrectly served to an address that the defendant no longer resided at. Whilst it s your responsibility to inform the claimant of an address change in case of service of documents, they also had a responsibility to check that the address they were using was current.

Without reading back there the thread, are you saying that the first contact you had with anyone was with ELMS after the CCJ had been issued? If that is the case, CPR 13.2 will be what gets this set aside.

VCS started sending me letters around May time however I never replied to them - so they never had basis to believe that was my current address (despite living there from the date of the event to 25th August) - is this what you mean? Thanks so much for your replies, I'd buy you a beer if I could!

Coupon-mad

So they had traced your address, and used it, but reverted to the older address for the claim?

I see the POC says this - below - so the breach allegation is stated.  If you were NOT driving then this will be easy (but expect to be asked, so no lying).

namely Stopping in a zone where stopping is prohibited.

 At all material times the Defendant was the registered keeper and/or driver. 

Do you know why the car briefly stopped?

ribenacat346

Coupon-mad said:

So they had traced your address, and used it, but reverted to the older address for the claim?

Easy set aside then, under CPR 13.2. - deliberate use of an old address. You don't have to wave back and say "you found me" and there is no justification to revert back to what they know is an older DVLA address than the new one they'd found from a credit ref agency.

I see the POC says this - below - so the breach allegation is stated.  If you were NOT driving then this will be easy (but expect to be asked, so no lying).

namely Stopping in a zone where stopping is prohibited.

 At all material times the Defendant was the registered keeper and/or driver. 

Do you know why the car briefly stopped?

Apologies I think I've worded it wrong and caused confusion.
VCS traced my address when I was living in my older property - sent all communication to there. I moved out on 25th August. Then ELMS Legal sent a claim form at the end of September to the same address (after I'd moved out) which I obviously hadn't seen. I've now only been able to access the letters through contacting my previous landlord and getting them back. I've had no communication at my new address. 
I was driving the car - but I haven't communicated this to them. 
The car briefly stopped because I was doing a 3 point turn to avoid driving through the long stay car park barriers, and for a few seconds after the 3 point turn I checked my google maps to take me to the correct drop off point, which I paid £6 to enter through normally. 

Coupon-mad

Sounds like you'd have good prospects of defence.  CPR 13.3 applies.

Doing a 3 point turn then getting your bearings for a few seconds to get to the Drop off lane (that you gained amenity from and paid £6 for) was a penalty, not an agreed contract. There was no consideration: nothing of value on offer.

Set aside is a gamble though because the claim WAS sent to your last known address. Elms could not have known you'd just moved with no mail forwarding in place.

I am astonished that people move house with zero mail forwarding these days. Especially when you knew you were close to court claim stage. Mail forwarding used to be the norm. Still should be!  Not everything is done online. Catches the things you forgot to change the address for. In this case it would have saved this situation.

ribenacat346

Coupon-mad said:

Sounds like you'd have good prospects of defence.  CPR 13.3 applies.

Doing a 3 point turn then getting your bearings for a few seconds to get to the Drop off lane (that you gained amenity from and paid £6 for) was a penalty, not an agreed contract. There was no consideration: nothing of value on offer.

Set aside is a gamble though because the claim WAS sent to your last known address. Elms could not have known you'd just moved with no mail forwarding in place.

I am astonished that people move house with zero mail forwarding these days. Especially when you knew you were close to court claim stage. Mail forwarding used to be the norm. Still should be!  Not everything is done online. Catches the things you forgot to change the address for. In this case it would have saved this situation.

Believe me I'm kicking myself about the mail forwarding - lesson definitely learned. I didn't realise I was close to court claim stage however, I still thought it was a scam at that stage, and definitely would have acted sooner if I'd realised. Again lesson learnt. 

Are you saying I'm more likely to win from the angle of defence rather than set aside?

As @unclet@UncleThomasCobley mentions in the posts above
'Whilst its your responsibility to inform the claimant of an address change in case of service of documents, they also had a responsibility to check that the address they were using was current.' - would this apply?

If they had checked my address at the time of serving the claim form (I'm not sure what methods they use) but they'd have seen updated details. Even if the DVLA driving license address change hadn't gone through on the system yet, they'd have seen updated electoral role, as well as gas/electric accounts in my name under this address. 

If the general consensus is that my case would be a risk to apply for a set aside however, I will explore the option of settling with ELMS.  

Le_Kirk

I would be tempted to pay up to £75 to settle and avoid the stress of taking this to a hearing (as much as that pains me to give in).

What is the amount on the judgment from the court?  I would suggest that the claimant is unlikely to accept your offer is there is a judgment in their favour for £200 or more.

Coupon-mad

Yes - they won't accept £75. You'll see!

You have to achieve CCJ set aside before you can defend the case.  You might not get a Judge to agree though.

And you WILL get a CCJ in the meantime.

And that application will cost you £275 which you won't get back in this case because I can't see that Elms did much wrong.