CCJ set-aside. Now Small Claims & Draft Defence.

Khayman

Hi all,

I know there's PLENTY of information on the forum about dealing with CCJs from PCNs and how to go about getting a set-aside, all of which I'm as confident about as someone with my degree of anxiety can be! However I just have ONE question before I really get into that, so please forgive me if I've not managed to find the answer (assuming it exists somewhere!).

In as little detail as possible: I got a letter from DCBL on Friday 24th Nov 2023 regarding a notice of debt recovery for an unpaid CCJ of £277. This is the first I had heard about it. Checked my credit report (CreditKarma) to see it's associated with my old address. Tried to contact CCBC/CNBC via phone to get more info, but can't get through (waited an hour an no answer) so I emailed them on Friday (got an auto reply assuming I was complaining about not being able to speak to anyone!). I emailed the 'Client' (ELMS Legal Limited) on Saturday (as I wanted to avoid talking to DCBS) asking for information. Response today was that it was relating to a PCN at Leeds Bradford Airport from April this year and that DVLA provided address (which was incorrect due to logbook not being up to date). No further info provided.

So my question is do I need to request all the relevant letters/photos/info etc. from CNBC/DCBL/ELMS Legal/(VCS i.e. Airport Parking, though this is not confirmed by anything I have yet) BEFORE I start my CCJ set-aside process? If so, which is the best/correct course?

Thank you so much for all you do to help folk like me! I'm an absolute wreck at the moment as my credit rating has plummeted and we're due to remortgage next year!

KeithP

The first thing to do is correct your vehicle's Registration Document(V5c).
The address can be updated online.

You also need to ask the question... how many more 'surprises' are hiding?
Speeding, stopping in yellow boxes, driving wrong way up one-way streets, etc., not to mention further parking 'events'. 
Apart from that, I believe a fine of up to £1000 can be levied.

Khayman

KeithP said:

The first thing to do is correct your vehicle's Registration Document(V5c).
The address can be updated online.

You also need to ask the question... how many more 'surprises' are hiding?
Speeding, stopping in yellow boxes, driving wrong way up one-way streets, etc., not to mention further parking 'events'. 
Apart from that, I believe a fine of up to £1000 can be levied.

We updated our info with the DVLA a few months ago (our issue was that we never actually got a v5c from the garage so didn't know it had to be updated!) and as they do not appear to have fined us, we are assuming that all is ok in relation to that at least! 

Coupon-mad

So my question is do I need to request all the relevant letters/photos/info etc. from CNBC/DCBL/ELMS Legal/(VCS i.e. Airport Parking, though this is not confirmed by anything I have yet) BEFORE I start my CCJ set-aside process? If so, which is the best/correct course?

Absolutely NOT!

You have a duty to 'act promptly' which means NOW. Apply for the set aside within the next week.

Khayman

Coupon-mad said:

So my question is do I need to request all the relevant letters/photos/info etc. from CNBC/DCBL/ELMS Legal/(VCS i.e. Airport Parking, though this is not confirmed by anything I have yet) BEFORE I start my CCJ set-aside process? If so, which is the best/correct course?

Absolutely NOT!

You have a duty to 'act promptly' which means NOW. Apply for the set aside within the next week.

Wow ok thanks! Glad I asked! I'll start getting things ready today!

Khayman

Hi again,

I'm nearly there with my WS and planning to send off my N244 this week (will post here for sense check!), but there is something I'm struggling to get my head around and apologies if I've missed the advice/explanation/examples in the various threads.

My issue is with CPR 13.3. I understand that the main argument for the mandatory set aside is 13.2 and that that's what should be the deciding factor, but I also see lots of advice to include a point referencing 13.3, and that 'the defendant has a real prospect of successfully defending the claim'. I also know the set aside hearing won't be about my defence of the PCN, but I feel like I don't understand *how* I have a real prospect of successfully defending the claim?

I think there have been other threads where others in similar cases who have for example not bought a ticket for a car park and been fined, but have still been encouraged to include CPR 13.3 in their WS? I'm struggling to find them though as I feel like I've overloaded on CCJ threads the past few days!

So if possible, I'd really appreciate any thoughts/advice on what it really means to use CPR 13.3 as an argument in a WS if you feel you perhaps don't have a solid defence?

Thanks!

Johnersh

CPR 13.3 real prospect is a similar test to part 24 summary judgment. The concept of real prospect of success.

In the notes to Volume 1 of the White Book 2018 at 24.2.3 this is explained - it is commented that:

“In order to defeat the application for summary judgment it is sufficient for the respondent to show some “prospect”, i.e. some chance of success. That prospect must be “real”, i.e. the court will disregard prospects which are false, fanciful or imaginary. The inclusion of the word “real” means that the respondent has to have a case which is better than merely arguable”. … The respondent is not required to show that their case will probably succeed at trial. A case may be held to have a “real prospect” of success even if it is improbable. However, in such a case the court is likely to make a conditional order…”

Khayman

Thank you both, C_M and Johnersh! Hugely helpful!

I'll aim to get my WS finished and posted up here this evening!

Khayman

WITNESS STATEMENT 

XXX COUNTY COURT 

Claim No. xxxxxx

BETWEEN: 

Vehicle Control Services Limited (Claimant) 

– and – 

[NAME] (Defendant) 

_________________________________ 

WITNESS STATEMENT OF [NAME]

_________________________________ 

WITNESS STATEMENT: 

I am [NAME] and I am the defendant in this matter. This is my supporting statement to my application dated [DATE] requesting:

a. To set aside the default judgment dated [DATE] as it was not properly served at my current address, pursuant to CPR 13.2.

b. An order for the original claim to be dismissed as it was not served within 4 months of the issue, pursuant to CPR 7.5 and the Claimant having failed to apply for an extension, pursuant to CPR 7.6.

c. An order for the claimant to pay the defendant £275 as reimbursement for the set aside fee plus the cost to attend the hearing and relevant litigation in person costs.

DEFAULT JUDGMENT

1. I was the registered keeper of the vehicle at the time of the alleged event.

2. I understand that the Claimant obtained a Default Judgment against me as the Defendant on [DATE]. I am aware that the Claimant is Vehicle Control Services Ltd (VCSL), and that the assumed claim is in respect of an unpaid Parking Charge Notice from Leeds Bradford Airport.

3. Since the claim form was not served at my current address, I thus was not aware of the Default Judgment until [DATE] following a letter received at my current address from Direct Collection Bailiffs Ltd (DCBL) (see Exhibit XX). 

4. I understand that the address on the claim is: [ADDRESS]. I moved out of this address in [DATE]. In support of this I can provide XXX (see Exhibit XX). 

5. I have not received any previous documentation from the Claimant, thus I was never able to properly challenge the Claimant’s claim.   

6. I was ‘there to be found’ via an inexpensive credit check as I had a permanent address on my record, at [ADDRESS]. This address is registered to my bank statements and the electoral roll (see Exhibit XX). 

7. I believe the Claimant has behaved unreasonably in pursuing a claim against me without confirming the Defendant’s correct contact details at the time of the claim. They had also failed to explore an ‘alternative place or method’ to inform/enquire the Defendant. 

8. The claimant did not take reasonable steps to ascertain the address of my current residence, and having received no return correspondence from me whatsoever following their assumed multiple attempts to reach me at an old address. If the claimant had checked any other source than the DVLA, they would have found the Defendant’s correct address. This has led to the claim being incorrectly served to an old address and an irregular judgment. On that basis, I believe the Claimant has not adhered to CPR 6.9 (3):
“Where a claimant has reason to believe that the address of the defendant referred to in entries 1, 2 or 3 in the table in paragraph (2) is an address at which the defendant no longer resides or carries on business, the claimant must take reasonable steps to ascertain the address of the defendant’s current residence or place of business (‘current address’).”
Indeed the the KADOE Service Contract states:
"B7. Accuracy of the Data
B7.1. The DVLA shall take all reasonable steps to ensure that the Data is accurate and up to date before it is transmitted to the Customer, but the DVLA cannot warrant the accuracy of the Data provided. The DVLA does not accept any liability for any inaccurate information supplied to it by the keeper of the vehicle or any other source beyond its control."

9. 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. 

12. In the alternative, CPR 13.3 applies as the Defendant has a real prospect of defending a claim, if served with one, but has seen no evidence, basis nor particulars of claim and the Claimant should be required to file afresh, if they believe they have a cause of action.

10. 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, I have put my utmost effort to obtain necessary information and have managed to submit the case application within XX days of discovering the Default Judgment. 

a) I discovered a CCJ was lodged onto my credit file on the [DATE] after receiving a letter through the post from DCBL. I subsequently checked Credit Karma on the same day to see if the letter was genuine. 

b) On [DATE] I attempted to contact the County Court Business Centre (CCBC) by telephone to obtain relevant information relating to this default judgment. I received no response after an hour on hold. On the same day I sent the CCBC an email (see Exhibit XX), but have had no response by the date of this application. 

c) On [DATE] I contacted ELMS Legal via email to request further information on the CCJ. I received a response stating that I was the correct defendant of the claim, and that it related to a PCN from Leeds Bradford Airport on [DATE]. No further information was provided. (See Exhibit XX).

d) On [DATE] I attempted again to contact the County Court Business Centre (CCBC) by telephone with no response after 40 minutes on hold. 

e) On [DATE] I contacted Leeds County Court (LCC) by telephone. I was given the name of the Claimant (VCSL) but was told that any further information would have to be requested from the CCBC. LCC confirmed the original letter was sent to my previous address at [ADDRESS]. 

f) On [DATE], I sent a Subject Access Request (SAR) via the Information Comissioner’s Office service to the Claimant so that I could have sight of the evidence against me. (See Exhibit XX). 

g) On [DATE], I sent a second Subject Access Request (SAR) via the Information Comissioner’s Office service to the Claimant’s litigation team, providing more information, so that I could have sight of the evidence against me. (see Exhibit XX). 

h) On xxxxxx I have submitted my case in order to set-aside this judgment and fairly present my case 

11. According to publicly available information my circumstances are far from being unique. The industry’s persistent failure to use correct and current addresses results is an unnecessary burden for individuals and the justice system across the country.

Furthermore, Prime Minister May publicly pledged to investigate ‘abuse’ of the CCJ System and so called ‘Credit Clamping’ as reported in the Daily Mail article dated 12 September 2016. The Right Honourable Sir Oliver Heald on 23 December 2016 "announced a crackdown on unresolved debts which can damage people’s credit ratings without them knowing. The action comes after concerns were raised that companies were issuing claims to consumers using incorrect addresses."

The Minister added "It cannot be right that people who are unaware of debts can see their lives and finances ruined by county court judgments. That in the digital age, we must ensure companies pursuing unpaid debts make every reasonable effort to contact individuals, rather than simply relying on a letter to an old address.” 

Furtherance to points raised in 3. above. 

12. 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. 

13. There are several authorities for this, including the judgment in Boxwood [2021] EWHC 947 (TCC) (see Exhibit XX), which is a reminder of the strictness of the requirements of CPR 7.6 and how difficult it is to use other parts of the Civil Procedure Rules to rectify a failure to serve the claim form within the requisite period: “A claimant is not entitled to rely on the wide, general powers under CPR 3.10 or CPR 3.9 to circumvent the specific conditions set out in CPR 7.6(3) for extending the period for service of a claim form…” 

14. In Vinos v Marks & Spencer plc [2001] 3 All ER 784 (see Exhibit XX) the Court of Appeal considered whether any extension of time should be granted under CPR 7.6 in circumstances where the defendant had been notified of the issue of a claim form but the claim form had not been served within four months as required by CPR 7.5 and the application was made after expiry of that period. The court refused to grant relief on the basis that it did not have power to do so. 

15. In judgment of Deputy Master Marsh in Croke & Anor v National Westminster Bank Plc & Ors [2022] EWHC 1367 (Ch)  (see Exhibit XX) the claimant was one day late in properly serving the Particulars of Claim to the Defendant and the claimant’s application for relief from sanctions was refused. In section 65 of the transcript of the trial (which is attached) Deputy Master Marsh stated “The defendants were entitled to know within the four month period specified in the CPR whether a claim had been made against them and to be able to understand that claim. [...] Unless an extension of time is granted, the claim will cease to have any validity and will be struck out."   

16. Considering all of the above I submit that the Claimant has not met the service requirements of CPR 6.9 and 7.5. respectively:
a) Service has not been effected at a valid address and,
b) For want of valid service, these proceedings have not been served within 4 months of issue. 

17. I respectfully request the Court that the Default Judgment against me should be set aside and the claim should be dismissed in its entirety. I request the Court to kindly consider the reimbursement of the fee of £275 plus the cost to attend the hearing and relevant litigation in person costs from the Claimant should this request be successful.   

Statement of Truth: 

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. 

Full Name:  

(Defendant) 

Dated: xxxxxx

Signed: 

_________________________________ 

DRAFT ORDER
_________________________________ 

IN THE COUNTY COURT AT: XXX

Vehicle Control Services Limited (Claimant)

And

[NAME] (Defendant)

CLAIM No: xxxxxx 

Upon reading the Defendant's application and the annexed witness statement dated [DATE] 

IT IS ORDERED that: 

1. The default judgment dated [DATE] be set aside pursuant to CPR 13.2. 

2. Pursuant to the Case Management powers of the Court under CPR 3.4(1) and the requirement for service of proceedings under CPR 7.5(1) the Claimant's claim is struck out for want of service within 4 months of issue. 

3. The Claimant does pay the defendant's costs and consequential costs of the application. 

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

Questions:

1. Is the court I send everything to and pay the court that issues the CCJ, i.e. Leeds?
What's best? Call them to say I'm sending it to them, pay over the phone, then send?
2. Does anyone know if the 50 printable page limit (mentioned in other, older threads) still applies?
I think the three named cases (Boxwood / Vinos / Croke) come to more than that between them, and I also have other exhibits such as emails and letters.
3. Do I have enough/too many exhibits? Are any of the emails/SARs etc. just not worth including?

Any and all help/comments welcome! 

Thank you!

Coupon-mad

You could call Leeds and ask if they will take the case there, but they might tell you to send it via the centre at CNBC at Northampton first, who will administer it and take payment, then allocate it to Leeds.

You can provide URLs for the Vinos, Croke, etc. cases IMHO and they are not your strongest suit anyway.  And don't provide any SAR stuff.  Mainly proof of where you love and that you were 'there to be found' as you'd changed your bank accounts, driving licence, utilities etc to the new address.

What was the date of the PCN?  Just wondering who you aren't quoting the IPC CoP about the mandatory requirement to check addresses before litigation.  As seen in most CCJ cases involving IPC firms.

Check out the stuff that @Chesterfield1970 included in his late WS as well.  That case shows exactly what a Judge WANTS people like you to show the court.  Read his Order he got from the court and make sure you cover ALL the bases his Judge wanted him to cover (took me ages to coach that poster into making sure he stayed on track and answered what the court wanted him to answer).

Khayman

Thanks for the quick response, C_M!

The PCN was 28 April 2023, so the reason I didn't quote the IPC CoP was because of the 12 month window, which obviously this is within, so I didn't think mentioning it would help my case at all.

Will go through that thread now, thanks!