Unexpected CCJ - Recovery of Debt letter from DCBL

Le_Kirk

Yes, the purpose of the haring is to set aside the judgment due to it not being properly served.  If you were relying on "good prospect of defending the claim" we would recommend sending a draft defence.

Coupon-mad

He's sent an email to the court asking how he should submit a Supplementary Witness Statement and by when.  

No need - he should have asked us.  He just does it (like I already advised)!

Just email it to the court that sent the hearing order and copy in Elms.

DO NOT send a defence yet.

Assuming he already sent a decent WS proving he'd moved (and attaching CEL v Chan as an exhibit already?) this one should be concise.

It is ONLY to add two or three things:

1 - the exhibit of the proof that Elms knew the claim had not been served but appear to have ignored the court letter telling them to re-serve the claim.  This must be wholly unreasonable conduct and as such, the applicant/Defendant should have full costs awarded.

2 - ask @bridgefixer for a copy of the email complaint he made to CILEX against Elms.  Attach that as well and tell your court that you fear a misleading 'consent order' still seen in other parking CCJ set aside cases coming from Elms in 2024 (and which has misled Judges), despite the fact they were warned in 2023 by CILEX not to send anything which could mislead the court (see Exhibit xxx).  For the avoidance of doubt there is no Consent Order because the Defendant of course seeks their costs in full, due to the above conduct and asks for the claim to be struck out/dismissed, pursuant to the authority of Civil Enforcement v Chan (a CCJ case on appeal to HHJ Gargan)..

3.  CEL v Chan if not already exhibited - the whole Judge's transcript. Add some words about it copied from any recent CCJ set aside thread you find when you search;

CCJ Boxwood Chan Witness Statement

fair2everyone

Coupon-mad said:

He's sent an email to the court asking how he should submit a Supplementary Witness Statement and by when.  

No need - he should have asked us.  He just does it (like I already advised)!

Just email it to the court that sent the hearing order and copy in Elms.

DO NOT send a defence yet.

Assuming he already sent a decent WS proving he'd moved (and attaching CEL v Chan as an exhibit already?) this one should be concise.

It is ONLY to add two or three things:

1 - the exhibit of the proof that Elms knew the claim had not been served but appear to have ignored the court letter telling them to re-serve the claim.  This must be wholly unreasonable conduct and as such, the applicant/Defendant should have full costs awarded.

He sent an email because the letter he got from the court simply asked him to email doncaster.remotehearings@justice.gov.uk  providing them with his email address so they can send him the link to join the remote hearing.  There was no mention in the letter about being able to send additional details and I wasn't sure if there would be a different email address for sending such documents.  You're right, we should have checked here first. But thank you - we'll check here before we send it.

Also, the Claimant is Excel Parking (ELMS Ltd presumably sent the claim on Excel's behalf?), he hasn't sent anything at all (other than the SARs to either Excel or ELMS.  I assumed the CNBC would send Excel a copy of the N244 including the Darft Order and Witness Statement.  So do we just copy the SWS to Excel - or do we need to copy everything to ELMS Ltd as well.  And he didn't mention CEL v Chan because we decided earlier in this thread that it wasn't appropriate - I'll requote what was said and post below.

fair2everyone

fair2everyone said:

Thank you - I have read the @Chesterfield1970 thread and have started to suggest versions of that. I'm a little confused re the CEL v Chan - I did start to read this and thought it wasn't relevant but can't remember why - I've made a note "POC doesn't state breach" but his does - no valid ticket purchased. I'll look at it again.  Also, again confused re IPC member/BPA member - Excel are IPC and CEL are BPA with a different Code of Practice - IPC 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.

In our case, only 5 months or so have passed - having said that, DCBL found him in 3 days!!

Coupon-mad said:

You are right that Chan doesn't apply, sorry my bad.  I assumed it does but your POC do state the breach. Forget Chan.

And in your case DON'T quote the CoP!

Do state this:

» show previous quotes

And he probably needs the SIX point Draft Order seen in the older examples in the NEWBIES thread CCJ section, because the whole claim isn't likely to be struck out at the first hearing.

This is on page 3 of the thread - hope this still makes sense.

fair2everyone

This is the WS sent with the N244 form:

IN THE DONCASTER COUNTY COURT

Claim No. XXXXXX

BETWEEN:

EXCEL PARKING SERVICES LTD

Claimant

– and –

Defendant

XXXXXXXX

_________________________________

WITNESS STATEMENT OF XXXXXXXXX
_________________________________

I , XXXXXXXX being the Defendant in this case will state as follows;

1. I make this Witness Statement in support of the application for an order that the judgment in this case (Claim No. XXXXXXX Default Judgment dated 12/10/2023) be set aside.

2. I first learnt of the existence of this claim on the 18/11/2023 when I received a letter regarding a NOTICE OF DEBT RECOVERY from Direct Collection Bailiffs Limited requesting payment of the judgment detailed in paragraph 1. [EXHIBIT ST1]

3. My address changed in November 2019 and I spent time staying at my parents’/in-laws’ address (and a redirection service was in place for 6 months) until my newly built house was ready and I moved in on 10/07/2020 [EXHIBIT ST2]

4. Once settled at my current address, I contacted various companies to update my address e.g. Bank, Mortgage provider, Driving Licence [EXHIBIT ST3]

5. On 19/11/2023, I used the TRUSTONLINE website to check for any CCJs and discovered one had been issued to my previous (permanent) address at the Civil National Business Centre on 12/10/2023. 

6. On 20/11/2023 I telephoned the Civil National Business Centre to obtained details about the case. Initially they told me it was for a parking offence on 26/04/2023 whilst parking at Berkley Centre Car Park in Sheffield.

7. I was advised to phone again and request that the Particulars of Claim be emailed to me. I had to telephone 3 times (21/11/2023; 24/11/2023; 30/11/2023) After the call on 30/11/2023 I received the relevant email. [EXHIBIT ST4]

8. On 4 December 2023, I submitted my case in order to set-aside this default judgment.

9. 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.

10. I believe the Claimant has not adhered to CPR 13.2, or alternatively CPR 13.3. If the court decides CPR 13.2 is satisfied, then I believe the Claimant is at fault and therefore the judgment must be set aside. If not, then I believe CPR 13.3 should apply, as I did not receive any paperwork, including court paperwork, to my correct address. Had the Claimant performed a relatively easy, inexpensive soft trace before sending this matter to court, then I would have been notified of the impending judgment which would have allowed me to take action to prevent it. I mention the fact that the debt recovery company managed to find me in a matter of days. I have acted promptly to obtain enough information to be able to submit this application.

11. I therefore respectfully request that the Court sets aside the judgment in this claim and, if required, allows a period of time for me to submit my full defence.

Statement of Truth

I, XXXXXXXXX, the Defendant, believe the facts stated within this Witness Statement to be true.

Signed: ________________________________

Dated: ________________________________

NOTE: I realise that the Statement of Truth is not the correct version - unfortunately, we got the versions mixed up and sent it as above.

So, question 1. Is it allowable to reference this error and/or send an editted version using the correct wording for Statement of Truth?

Next question - is the SWS below ok so far - numbering follows on, and Exhibit ST5 will be excerpts from the DLUHC document as mentioned in the SWS, Exhibit ST6 will be the letter from the Court to ELMS Legal Ltd re the un-served claim.

IN THE DONCASTER COUNTY COURT

Claim No. XXXX

BETWEEN:

EXCEL PARKING SERVICES LTD

Claimant

– and –

Defendant

XXX

__________________________________________________________

SUPPLEMENTARY WITNESS STATEMENT OF XXX
__________________________________________________________

I, XXX, being the Defendant in this case will further state as follows;

12. I wish to continue my Witness Statement in support of the application for an order that the judgment in this case (Claim No. XXXX Default Judgment dated 12/10/2023) be set aside.

13. On 6th December 2023 I emailed SARs to both the Claimant (Excel Parking Services Ltd) and their Solicitor (ELMS Legal Ltd) and received copies of all the letters that were sent to my old address by Excel Parking Services Ltd, from the Notice to Keeper (issued on 03/05/23) to the Letter Before Claim (issued on 17/07/23). The length of time between the date I used the carpark on 26/04/23 until the final date mentioned in the Letter Before Claim document (16/08/23) is 4 months. It is clear that the Calimant should have considered using a soft trace to check the validity of the address supplied by the DVLA. Excel Parking Services Ltd are well aware that the ongoing Private Parking Code of Practice Impact Assessment by the DLUHC includes a recommendation that Private Parking Companies should use a soft trace once the name of the Keeper has been obtained. Indeed, Excel Parking have provided evidence that the cost for parking companies to perform such a search would cost no more than £1.50. [Exhibit ST5]

14. I also received, via the SAR to ELMS Legal Ltd, a copy of a letter from the CNBC to ELMS Legal Ltd (issued 28th Nov 2023) which indicates that they knew the claim had not been served but appear to have ignored the court letter telling them to re-serve the claim. This must be wholly unreasonable conduct and as such, I believe the default judgment should be set-aside and I should be awarded full costs. [EXHIBIT ST6]

Statement of Truth

I, XXX, the Defendant, believe the facts stated within this Supplementary Witness Statement to be true. I understand that proceedings for contempt of court may be brought against a person 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: ________________________________

I haven't included points 2 or 3 suggested by you @Coupon-mad above yet but will do if you still think they are relevant  Thank you. 

Coupon-mad

OK good - and I see that Chan isn't relevant.

Therefore he urgently needs to do a Supplementary WS as I said, but without Chan.  Have you pm'd @bridgefixer for his claim number and CILEX complaint ref and a copy of the proof that Elms have been warned not to do this?

This is all about showing 'wholly unreasonable conduct' to pave the way to get his costs awarded.  He must ask for his costs at the end. Prime him to be confident and ask the Judge to make an award for all his costs.

Tell him to have a crib sheet to refer to, of all the unreasonable conduct, in case his mind goes blank with relief when the CCJ gets set aside & the Judge wants to end the hearing & move on to the next case.

He doesn't need to send the N244 or the first WS anywhere as the court service has already sent that to Elms.

He DOES need to do the Supplementary WS this week, so it is considered timely enough.

fair2everyone

Thank you @Coupon-mad - I can see how busy you are each day, so thank you for taking the time to reply. Yes, I've got the info from @bridgefixer - so we will add what you suggested to the Supplementary WS and attach details as an Exhibit.  We'll send it before the end of the week - and does he copy this to Elms (or to Excel Parking - as they are the Claimant) or will the court send it to whoever? 

fair2everyone

Also, he has asked CNBC for an image of the "Not at this address" correspondence that the guy at his old address says he did but nothing has arrived so far - can you send more than one Supplementary WS or is it just one shot?

Coupon-mad

I'd only send one, or he risks annoying the Judge with scattergun additions.  It gets emailed to the local court and the solicitors.

Not the CCBC and not the parking firm.

fair2everyone

As we haven't received anything yet from CNBC re his request for any images of returned correspondence marked "Not at this address", my son wondered if he should include a screenshot of the message from the guy at his old address :

fair2everyone said:

One thing I haven't mentioned is that he contacted the person now living at the old address (who is not the nicest of fellows) to ask if when he received any post for him, what he did with it.  He said (in a not very polite manner) that he wrote "not at this address" and was fed up of having to re-post them.  This has me wondering whether the CNBC received such a returned letter - I assume they are the ones who send the hearing date for the original case? Is it worth sending a SAR to CNBC at this late stage - he only asked for the POC from them?  He didn't request a SAR from DCBL as they obviously had found him - but maybe he should do this now? 

My concern would be that the message states: "Morning.  Any correspondence address to you at XXX have been returned to sender, marked "NOT AT THIS ADDRESS".  The address will have been obtained from DVLA which suggests your licence details have not been updated? It has been an inconvenience returning these letters, therefore I trust you will be taking all steps practicable to resolve this issue?"

The mention of DVLA worries me, although, he DID update his driving licence - just not his V5.

Should he include this or not?