CCJ vs CP Plus Ltd (DCBL) Applying for Set-Aside

NahkoMed

Oh wow, thanks for the reply at this late hour.

I gave my old address to them in (believe it or not) November 2023 (Not a typo, nearly 18 months ago). I think at that time the template didn't include the caveat about timing (or I missed it) at any rate, I posted it here - further up in this thread - and regrettably, sent it without that kind of caveat.

I moved about a year later (December 2024) and can prove that conclusively. They filed in January this year (suspicious, right?!).

I've been (frantically) reading, and I see that even CPR 6.8 can collapse because it requires 2 limbs: 

"the defendant may be served with the claim form at an address at which the defendant resides or carries on business within the UK  AND which the defendant has given for the purpose of being served with the proceedings". And there's case law to back that up, e.g. https://anthonygold.co.uk/insight/is-the-address-for-service-of-proceedings-correct.

Would love to hear your thoughts.

Coupon-mad

Well there's no way they were entitled to rely upon a 2023 address to sue over a year later.

Apart from anything else, the BPA CoP from 2020 had a clause that the address details must be checked prior to litigation.

That's now been clarified in the 2024 Joint Code as meaning a soft trace (which is what it always meant). The difficulty is they MIGHT have done a soft trace in late 2024 and had your address confirmed but:

1. you don't know that. Certainly do not mention the possibility in your WS!

2. even if they did, at the hearing you can revert to CPR 13.3 (discretionary set aside) and all the '4 months expired claim' authorities used in other CCJ set aside threads, e.g. by @icy_fox  

NahkoMed

Coupon-mad said:

Well there's no way they were entitled to rely upon a 2023 address to sue over a year later.

Ok that's reassuring, thank you.

Coupon-mad said:


2. even if they did, at the hearing you can revert to CPR 13.3 (discretionary set aside) and all the '4 months expired claim' authorities used in other CCJ set aside threads, e.g. by @icy_fox  

So if I've understood correctly, I should stick to the arguments I've put forward and, if it so happens that they've done a soft trace within a reasonable time of the claim, just before or (literally a couple of days after) I've moved, then on the day (rather than pre-empting such arguments at this stage) I reference CPR 13.3 and point out that:

1. There is "real prospect" of my successfully defending

2. That I never saw the claim form / had a chance to defend (VCSL vs CARR) and that the Claimant waited a year to claim are other "good reasons" to set aside and,

3. (By the date of the hearing, though not at the moment) The claim should be struck out as expired because it's been more than 4 months since it was filed.

Is that right?

Could I also (on the day) argue that, if the C is relying on CPR 6.8 + a mistimed soft trace, it collapses anyway because I was not "resident" there at the time of service?

To clarify with some direct questions:

1. Is it correct to leave the detail of this argument regarding 13.3 OUT of the WS at this stage (other than the "real prospect of defence" section that I already have (CEL v CHAN, CPMS vs AKANDE), and the statements concerning right to defend from VCSL vs CARR)?

2. Is it also correct that there's no merit in mentioning at this stage that the C may rely on CPR 6.8 to say the service address was valid, but that this cannot be the case? That these arguments are best made "on the fly" if needed?

3. In a general sense is it fine to rely on arguments / case law at the hearing which are not part of the witness statement?

4. If it turns out that the C does rely on 6.8 + an early soft trace in their arguments, do I deal with that in the way I've suggested, namely argue that it still doesn't count because I wasn't resident, plus the additional arguments I've listed pertaining to 13.3?

5. Does a claim that was filed less than 4 months ago at the time I file my request to set-aside still count as expired if it's more than 4 months old at the date of the hearing?

That's turned into a lot, sorry. Complicated!

Thanks again, so much.

Coupon-mad

Yes to all of the above, except I would actually mention CPR 13.3 by stating in the N244 first box

'What Order are you asking for and why?'

...that you seek an order as shown in the attached Draft Order, i.e. to set aside the CCJ under CPR 13.2 (or in the alternative under CPR 13.3) and to strike out the Claim and grant the Defendant's costs for the reasons in the Witness Statement attached.

NahkoMed

This is really helpful thanks. I'm pretty much ready to file now I think. I just have a concern about the draft order vs the "What order are you asking for" N244 box because I've seen in various places that it must be "EXACTLY the same", but there's definitely not enough space for all of this:

______________________________________________


DRAFT ORDER


______________________________________________


IT IS ORDERED THAT:

UPON considering the application of the Defendant to set aside the Judgment by default entered on  ******

AND UPON reading the evidence in support of the application;

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

AND UPON the court finding that the Particulars of Claim fail to comply with CPR 16.4(1)(a) by lacking a concise statement of facts and therefore do not constitute a valid cause of action;

IT IS ORDERED THAT:

1. The Judgment by default entered against the Defendant on ********** is hereby set aside under CPR 13.2 (or in the alternative under CPR 13.3).

2. The claim is struck out on the grounds that the Particulars of Claim fail to comply with CPR 16.4(1)(a) and do not provide a concise statement of facts necessary to establish a cause of action.

3. The Claimant shall pay the Defendant’s costs of this application in the sum of £313.

in that little box!

What I think @Coupon-mad and others are saying here is that "what's being asked" must match exactly, not the full wording, but the substance of the request and reasons, and that the summary suggested here:

Coupon-mad said:

...that you seek an order as shown in the attached Draft Order, i.e. to set aside the CCJ under CPR 13.2 (or in the alternative under CPR 13.3) and to strike out the Claim and grant the Defendant's costs for the reasons in the Witness Statement attached.

will suffice. Something like:

"As shown in the attached draft order: To set aside the CCJ under CPR 13.2 (or in the alternative under CPR13.3), to strike out the claim on the grounds that the Particulars of Claim fail to comply with CPR 16.4(1)(a), and that the Claimant shall pay the Defendant's costs for the reasons set out in the attached Witness Statement.

Is that right?

Assuming so, as I understand it, I'll be sending the following:

N244 (Signed Electronically) - PDF, 5 pages

Witness Statement (Signed Electronically) -PDF, 6 pages

Draft Order - Word Document, 1 page

Exhibits - PDF, 25 pages

First thing tomorrow then calling up to pay/discuss the fee and confirm receipt.

Coupon-mad

No it's fine to put what I suggested.

NahkoMed

Well, that's in then! Phew... I think!

I know I keep saying it, but honestly, thank you so much to everyone on here who's helped me this far. I really hope the regulars here know how much their wisdom, guidance, experience and reassurance is appreciated. I for one will be writing to the new Pope to ask that @Coupon-mad be canonised as the patron saint of PCN victims!

No doubt I'll be back shortly. See you all soon

NahkoMed

So, back again a little sooner than expected!

I sent everything off on 1st May and got an automated confirmation email, paid the fee and was told I'd get email confirmation of that too. I haven't, nor have I heard anything else from CNBC. Reading a few horror stories on here about lost applications etc I'm wondering if you'd recommend doing anything further at this stage, or wait a bit longer before calling them?

Coupon-mad

I'd call them and say you were told you would receive email confirmation.

Remind them that this is an application from a person affected by a scam parking CCJ, so it is meant to be treated urgently.

NahkoMed

Took the above advice, thanks. Was advised the fee has been received and 14 days is the minimum time for processing, so I'll call back on Monday if/when I've still not heard anything. In the meantime, I received this nonsense from DCBL today (2 weeks after the deadline I gave them to respond):

Good Afternoon,

Your allegation of the matter being an “abuse of process” is denied. It remains the Claimant’s position the Charge and subsequent Judgment were issued correctly, for which you remain liable.

WITHOUT PREJUDICE SAVE AS TO COSTS

For the avoidance of doubt, the Claim Form was issued to your last known address pursuant to CPR 6.9(3) following a trace. However, we acknowledge that you were more likely than not in receipt of the Claim Form due to residing at an alternative address and therefore you were not in a position to respond to the same. As such, the Claimant is agreeable to have the Judgment set aside pursuant to CPR 13.3, on the basis that you pay the Judgment sum (£311.68) and Court fee (£123.00).

Thus, please find attached a copy of the Claimant’s proposed Consent Order. Should you be agreeable to the same, we kindly request that payment of £434.68 is made, and the attached Consent Order is signed and returned to us.

Upon receipt of the same, we shall countersign the Order and file it with the Court to be considered.

Payment of £434.68 can be made via bank transfer to our designated Client account: -

... etc etc

The highlight for me is:

"we acknowledge that you were more likely than not in receipt of the Claim Form due to residing at an alternative address and therefore you were not in a position to respond to the same"

... No facepalm emoji on here, sadly.

And also, how can the judgement have been "entered correctly" if I was "not in a position to respond" to the claim form?

Who are these people and why are they able to continue claiming to be solicitors?